Tag: First Amendment

Cross posted from The Stars Hollow Gazette

Earlier this year Pulitzer prize winning author, Chris Hedges and several other prominent activists and politicians filed a lawsuit against the Obama administration  over Section 1021 of the National Defense Authorization Act (NDAA) alleging that it violated free speech and associational rights guaranteed by the First Amendment and due process rights guaranteed by the Fifth Amendment of the United States Constitution. The Obama DOJ argued that the group had no standing to bring the suit since they had been harmed. Federal Judge  Katherine Forrest of the Southern District of New York saw it differently in her ruling (pdf)on May 16 when she issued a preliminary injunction enjoining enforcement of the highly controversial indefinite provisions of NDAA, Sections 1021 and 1022. The final hearings were held last week on whether the injunction enjoining enforcement of 1021 will be permanent.

From Chris Hedges on Criminalizing Dissent:

[..] Any activist or dissident, whose rights were once protected under the First Amendment, can be threatened under this law with indefinite incarceration in military prisons, including our offshore penal colonies. The very name of the law itself-the Homeland Battlefield Bill-suggests the totalitarian credo of endless war waged against enemies within “the homeland” as well as those abroad. [..]

Barack Obama’s administration has appealed Judge Forrest’s temporary injunction and would certainly appeal a permanent injunction. It is a stunning admission by this president that he will do nothing to protect our constitutional rights. The administration’s added failure to restore habeas corpus, its use of the Espionage Act six times to silence government whistle-blowers, its support of the FISA Amendment Act-which permits warrantless wiretapping, monitoring and eavesdropping on U.S. citizens-and its ordering of the assassination of U.S. citizens under the 2001 Authorization to Use Military Force, or AUMF, is a signal that for all his rhetoric, Obama, like his Republican rivals, is determined to remove every impediment to the unchecked power of the security and surveillance state. [..]

The language of the bill is terrifyingly vague. It defines a “covered person”-one subject to detention-as “a person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” The bill, however, does not define the terms “substantially supported,” “directly supported” or “associated forces.” In defiance of more than 200 earlier laws of domestic policing, this act holds that any member of a group deemed by the state to be a terrorist organization, whether it is a Palestinian charity or a Black Bloc anarchist unit, can be seized and held by the military. Mayer stressed this point in the court Wednesday when he cited the sedition convictions of peace activists during World War I who distributed leaflets calling to end the war by halting the manufacturing of munitions. Mayer quoted Justice Oliver Wendell Holmes’ dissenting 1919 opinion. We need to “be eternally vigilant against attempts to check the expression of opinions that we loathe,” the justice wrote. [..]

The Justice Department’s definition of a potential terrorism suspect under the Patriot Act is already extremely broad. It includes anyone with missing fingers, someone who has weatherproof ammunition and guns, and anyone who has hoarded more than seven days of food. [..]

Contrast this crucial debate in a federal court with the empty campaign rhetoric and chatter that saturate the airwaves. The cant of our political theater, the ridiculous obsessions over vice presidential picks or celebrity gossip that dominate the news industry, effectively masks the march toward corporate totalitarianism. The corporate state has convinced the masses, in essence, to clamor for their own enslavement. There is, in reality, no daylight between Mitt Romney and Obama about the inner workings of the corporate state. They each support this section within the NDAA and the widespread extinguishing of civil liberties. They each will continue to funnel hundreds of billions of wasted dollars to defense contractors, intelligence agencies and the military. They each intend to let Wall Street loot the U.S. Treasury with impunity. Neither will lift a finger to help the long-term unemployed and underemployed, those losing their homes to foreclosures or bank repossessions, those filing for bankruptcy because of medical bills or college students burdened by crippling debt. Listen to the anguished cries of partisans on either side of the election divide and you would think this was a battle between the forces of light and the forces of darkness. You would think voting in the rigged political theater of the corporate state actually makes a difference. The charade of junk politics is there not to offer a choice but to divert the crowd while our corporate masters move relentlessly forward, unimpeded by either party, to turn all dissent into a crime.

Not that there is any solace in the argument of voting for Obama to protect the Supreme Court from more corporatist right wing appointments, when Pres. Obama has his good friend and mentor Cass Sunstein waiting in the wings, salivating to further gut and criminalize dissent.

But thank you, Judge Forrest.

Cross posted from The Stars Hollow Gazette

The past Sunday constitutional lawyer and contributing editor at Salon.com Glenn Greenwald appeared with Chris Hayes on MSNBC’s “Up with Chis Hayes”to discuss the history of anonymous speech in politics and debate whether spending money is an exercise of free speech. The other guests on the panel are Maria Hinojosa, anchor of NPR’s Latino USA and president of Futuro Media Group; Rep. Peter Welch, Democrat of Vermont and member of the House Oversight and Government Reform Committee; and Heather McGhee, vice president of policy and research at the progressive think tank Demos.

Glenn also penned a scathing piece on Sen. Diane Feinstein’s (D-CA) attack on our First Amendment rights using, oh noes!, Terror! as an excuse. Glenn makes the point that Feinstein’s outrage over Julian Assange and Wikileaks is tantamount to an attack of freedom of the press.

Dianne Feinstein targets press freedom

The supreme Senate defender of state secrecy and the Surveillance State, California Democrat Dianne Feinstein, yesterday issued a statement to Australia’s largest newspaper, The Sydney Morning Herald, demanding (once again) the prosecution of WikiLeaks and Julian Assange. To see how hostile Feinstein is to basic press freedoms, permit me to change “Assange” each time it appears in her statement to “The New York Times“:

   The head of the US Senate’s powerful intelligence oversight committee has renewed calls for [The New York Times] to be prosecuted for espionage. . . .

   “I believe [The New York Times] has knowingly obtained and disseminated classified information which could cause injury to the United States,” the chairwoman of the Senate Select Committee on Intelligence, Dianne Feinstein, said in a written statement provided to the Herald. “[It] has caused serious harm to US national security, and [] should be prosecuted accordingly.”

As EFF’s Trevor Timm noted, there is no sense in which Feinstein’s denunciation applies to WikiLeaks but not to The New York Times (and, for that matter, senior Obama officials). Indeed, unlike WikiLeaks, which has never done so, The New York Times has repeatedly published Top Secret information. That’s why the prosecution that Feinstein demands for WikiLeaks would be the gravest threat to press freedom and basic transparency in decades. Feinstein’s decades-long record in the Senate strongly suggest that she would perceive these severe threats to press freedom as a benefit rather than drawback to her prosecution designs.

Under Sen. Feinstein’s premise we should have prosecuted Woodward and Bernstein and every other reporter who has exposed government wrong doing. I wonder is she would like to take on Dick Cheney for outing a CIA agent to get us into a war based on a lie, the consequences of which we will never know.  

Cross posted from The Stars Hollow Gazette

Recently, I was driving along the Hutchinson River Parkway to pick up a friend who was in town and meet up with another friend for dinner in the area. It was a lovely warm evening and during the the drive we talked about the historic significance of the region. Dinner was fun and after dropping my friend at his hotel, I followed my usual route back to NYC that closely hugs the Hutchison River as it winds through the Bronx. As I was preparing my daily open thread, On This Day In History, I came across this Wikipedia entry for Anne Hutchinson for whom the river and parkway are named:

1638 – Anne Hutchinson is expelled from Massachusetts Bay Colony for religious dissent.

Anne Hutchinson (1591-1643) was one of the most prominent women in colonial America, noted for her strong religious convictions, and for her stand against the staunch religious orthodoxy of 17th century Massachusetts. She was a Puritan whose religious ideas were at odds with the established Puritan clergy in the Boston area, and her popularity and charisma created a schism in the Boston church which threatened to destroy the Puritans’ religious experiment in New England. Creating the most challenging situation for the ruling magistrates and ministers during her first three years in Boston, she was eventually tried and convicted, then banished from the Massachusetts Bay Colony with many of her followers. [..]

In 1634, after the birth of her 14th child, Hutchinson followed (John) Cotton to New England with her husband and 11 living children, and soon became well established in the growing settlement of Boston, in the English colonies. She was a midwife, and very helpful to those needing her assistance, as well as being very forthcoming with her personal religious opinions and understandings. Soon she was hosting women at her house once a week, providing commentary on recent sermons, and sharing her religious views, including criticism of many local ministers. These meetings became so popular, that she soon began offering meetings to men as well, to include the young governor of the colony, Harry Vane, and over 60 people a week were visiting her house to learn from her interpretations and views of religious matters. As a follower of Cotton, she espoused a “covenant of grace,” while accusing all of the local ministers (except for Cotton and her husband’s brother-in-law, John Wheelwright) of preaching a “covenant of works.” Several ministers complained about Hutchinson to John Winthrop, who served several terms as governor of the colony, and eventually the situation erupted into what is known as the Antinomian Controversy, resulting in Hutchinson’s 1637 trial, conviction, and banishment from the colony.

She was quite the activist for her day and stood trial for heresy, literally standing throughout the proceedings while, in what was believed, to be an advanced stage of pregnancy. She faced two trials, civil and church, and was expelled from Massachusetts by Gov. John Winthrop after being convicted by the church on March 22, 1638.

After her conviction, Anne. along with her husband, children and some of her followers, with the encouragement of Roger Williams, established the colony of Portsmouth “in what would become the Colony of Rhode Island and Providence Plantations:”

During Hutchinson’s imprisonment, several of her supporters prepared to leave the colony and settle elsewhere. A group of her followers, including her husband Will, met on 7 March 1638, at the home of the wealthy Boston merchant William Coddington. Ultimately 23 men signed what is known as the Portsmouth Compact, forming themselves into a “Bodie Politick” and electing Coddington as their governor, but giving him the Biblical title of “judge.” Of the signers, 19 of them initially planned to move to New Jersey or Long Island, but Roger Williams convinced them to settle in the area of his Providence Plantations settlement. Coddington purchased Aquidneck Island, in the Narragansett Bay, from the Narragansetts and the settlement of Pocasset (soon renamed Portsmouth) was founded. Anne Hutchinson followed in April, after the conclusion of her church trial.

Hutchinson, her children, and others accompanying her traveled for more than six days by foot in the April snow to get from Boston to Roger Williams’ settlement at Providence. They then took boats to get to Aquidneck Island, where many men had gone ahead of them to begin constructing houses. In the second week of April, she reunited with her husband, from whom she had been separated for nearly six months. [..]

She lived there for a few years, but after her husband’s death, threats of Massachusetts taking over Rhode Island compelled her to move totally outside the reach of Boston, into the lands of the Dutch. Sometime in 1642 she settled with her younger children in New Netherland near an ancient landmark called Split Rock in what would later become Bronx, New York City. Here she had a home built, but tensions with the native Siwanoy were high, and following inhumane treatment by the Dutch, the natives went on a series of rampages known as Kieft’s War, and in August 1643, all but one of the 16 members of Hutchinson’s household were massacred during an attack. The lone survivor, nine-year old Susanna Hutchinson, was taken captive, and held for several years before being returned to family members in Boston.

Hutchinson is a key figure in the study of the development of religious freedom in England’s American colonies and the history of women in ministry. She challenged the authority of the ministers, exposing the subordination of women in the culture of colonial Massachusetts. Although her religious ideas remain controversial, her implicit rejection of state authority to prescribe specific religious rites and interpretations, was later enshrined in the American Constitution. Massachusetts honors her with a State House monument calling her a “courageous exponent of civil liberty and religious toleration.”

The inscription on the base of the statue in front of the State House in Boston, Massachusetts that honors Anne and her daughter, Suzanna reads:

IN MEMORY OF

ANNE MARBURY HUTCHINSON

BAPTIZED AT ALFORD

LINCOLNSHIRE ENGLAND

20 JULY 1595 [sic]

KILLED BY THE INDIANS

AT EAST CHESTER NEW YORK 1643

COURAGEOUS EXPONENT

OF CIVIL LIBERTY

AND RELIGIOUS TOLERATION

Click on image to enlarge

Beside being one of the few women who have a river named for them, Anne Hutchinson is thought to be the basis for the character of Hester Prynne in Nathaniel Hawthorne‘s The Scarlet Letter. The parallel being “that Hutchinson is the heretic who metaphorically seduces the Puritan community, while in Hawthorne’s novel Hester Pyrnne literally seduces the minister of her community.”

Considering the recent debate over women’s access to health care and our First Amendment rights, remembering the early history of religion and the role that women played is a reminder that this conversation has been going on for a lont time.

Cross posted from The Stars Hollow Gazette

It certainly been an eventful day. The two bills, Stop Online Piracy Act (SOPA) and Protect Intellectual Property Act (PIPA), were defeated Wednesday by an internet blackout of key web sites and the avalanche of petitions, street protests, e-mails and phone calls to congressional members.

When the powerful world of old media mobilized to win passage of an online antipiracy bill, it marshaled the reliable giants of K Street – the United States Chamber of Commerce, the Recording Industry Association of America and, of course, the motion picture lobby, with its new chairman, former Senator Christopher J. Dodd, the Connecticut Democrat and an insider’s insider.

Yet on Wednesday this formidable old guard was forced to make way for the new as Web powerhouses backed by Internet activists rallied opposition to the legislation through Internet blackouts and cascading criticism, sending an unmistakable message to lawmakers grappling with new media issues: Don’t mess with the Internet. [..]

Congress now follows Bank of America, Verizon and Netflix as the latest institution to forced to change course by an internet led revolt.

It was especially dismaying that First Amendment stalwarts, like Senator Patrick Leahy and Representative John Conyers Jr. of Michigan, were sponsoring this bill. It took Republicans in the House, assisted by Paul Ryan (R-WI) and, initially, six Republican senators to get both bill pulled from consideration. To his credit, Sen. Ron Wyden (D-OR) was a one man road block to PIPA until the Republicans, pressured by their House compatriots, pulled their support.

So, besides Sen. Wyden, why weren’t there more Democrats opposed? Why were they even supporting a bill that would infringe on free speech and hurt job growth in the technology field? Follow the money. Hollywood, the music and movie industry, are a big supporters of anti-piracy and IP protection laws and Democrats.

Former Senator, Chris Dodd (D-CT), who forswore a lobbying career but is now CEO of Motion Picture Assn. of America, railed against technology companies such as Google, Mozilla and Wikipedia calling the blackout a “stunt”:

“It is an irresponsible response and a disservice to people who rely on them for information and who use their services,” Dodd said in a statement. “It is also an abuse of power given the freedoms these companies enjoy in the marketplace today.”

It wasn’t until Saturday that President Obama spoke out about the most controversial portions of the House bill that would require Internet service providers to block infringing websites but said nothing about PIPA, the Senate version, and fell short of saying he would veto the bill.

Up until the last few days the media, especially television and cable have been pretty silent. Chris Hayes of MSNBC’s “Up with Chris” hosted a debate with NBC Universal’s General Counsel, Richard Cotton, Alexis Ohanian, co-founder of Reddit.com, former Rep. Joe Sestak (D-PA) and former lobbyist Jack Abramoff. Since it became apparent that the traditional media was missing the boat on one of the biggest news stories of the year, they all started jumping back on the ship.

Wednesday night, Mr. Hayes was a guest on “The Rachel Maddow Show” where he and Rachel talked about the power and effectiveness of the online protest in influencing Congress who by and large didn’t understand the bills or the internet.

Will this stop these two bills? No, it won’t. As Wikipedia points out in its thank you to its visitors, “we’re not done yet”

SOPA sponsor Lamar Smith stated that the House of Representatives will push the bill forward in February. Senate sponsor Patrick Leahy still plans for a PIPA vote on January 24.

Moreover, SOPA and PIPA are symptoms of a larger issue. They are misguided solutions to a misunderstood problem. In the U.S. and abroad, legislators and big media are embracing censorship and sacrificing civil liberties in their attacks on free knowledge and an open Internet.

Although support has slipped in both the Senate and the House, there is a Senate vote on PIPA scheduled for January 24, and the House will be moving forward as well. It is important to keep the pressure up on both houses. We expect changes that appear to tone down the damaging effects of the laws, without addressing their fundamental flaws.

Keep calling your representatives! Tell them you believe in a free and open Internet!

It looks like this is just start of the war to save the internet.

The police arrest you for reading the Constitution in a public space during an Occupy demonstration. Later, you get a letter saying that reading the Constitution in a loud voice, in that place, at that time, broke a small statute of the law, and therefore you will be fined $1,500. If you disagree with this assessment, you can plead your case in a letter to the Chief of Police at the station where the arresting officer works. If they don’t hear from you in, oh, I don’t know, 20 days, then they will assume you agree with the fine.

Oh, and by the way, everything in their letter is top secret and you have to get the Chief of Police’s permission to share it with your lawyer, your husband or your…well let’s say readers.

What? You have a problem with that?

So do I…

Cross posted from The Stars Hollow Gazette

Color me shocked. After the sexual harassment allegations and aggressive proselytizing toward non-Christians, the US Air Force Academy has decided that part of its duty in educating future officers is the teach them to defend the Constitution and that includes the First Amendment clause guaranteeing freedom of religion.

Cadets gather for the dedication ceremony of the Air Force Academy’s Cadet Chapel Falcon Circle worship center this spring. The center serves cadets whose religions fall under the broad category of “Earth-based.” (Jerilee Bennett / The Gazette / May 3, 2011)

Officials say an $80,000 Stonehenge-like worship center underscores a commitment to embrace all religions.

Reporting from Colorado Springs, Colo.-

In the still of a cold November evening, a small gathering of pagans, led by two witches, begins preparations for the coming winter solstice. But these are not just any pagans, and this is not just any setting. They are future officers of the United States Air Force practicing their faith in the basement of the Air Force Academy’s cadet chapel.

Their ranks are slim. According to the academy’s enrollment records, only three of 4,300 cadets identified themselves as pagans, followers of an ancient religion that generally does not worship a single god and considers all things in nature interconnected. [..]

Witches in the Air Force? Chaplain Maj. Darren Duncan, branch chief of cadet faith communities at the academy, sighs. A punch line waiting to happen, and he’s heard all the broom jokes. [..]

“We’re here to accommodate all religions, period,” Duncan says. The building of the Cadet Chapel Falcon Circle on the hilltop, he says, is no different from the past conversion of chapel rooms into worship spaces that serve this year’s 11 Muslim, 16 Buddhist and 10 Hindu cadets. There are also 43 self-identified atheist cadets whose beliefs, or lack of them, Duncan says are also to be respected.

“It is very nice to have our own space,” says Cadet 1st Class Nicole Johnson, a 21-year-old senior from Florida who became a pagan after entering the academy. [..]

In addition to providing worship space, new policy dictates that all cadets take courses in understanding the religions of those who may someday fall under their command. Recently he’s fielded calls from West Point and Annapolis about replicating the Air Force’s efforts. [..]

Back at the solstice preparations, with glue guns drawn and takeout pizza within easy reach, the pagan cadets decorated yule logs with bits of ribbon and glitter. Yule logs, whose ritual burning symbolizes faith in the reappearance of the sun, will be displayed alongside the Christmas trees and menorahs in next month’s crowded religious calendar at the academy.

And though Johnson acknowledges that her beliefs are often misunderstood, she says she has taken no serious grief from other cadets, save occasional questions about whether pagans dance naked (she doesn’t) or whether she can cast a spell on commanding officers (she wouldn’t even if she could).

Do as you will, but harm no one. Wiccan Rede

The hotel shuttle pulls up to San Francisco’s airport half an hour late. I push a dollar into the driver’s hand and grab my bag. Less than an hour remains to negotiate San Francisco’s ever present chaos to make my flight. I join the line snaking back and forth through an infinite channel of nylon belts and down the backs of airline ticket booths, tapping my finger impatiently on the handle of my bag. There are no other flights to Albuquerque until late tonight and that would mean missing work.

I make it past the first ID screening and still the line crisscrosses for a mile in front of me. Then, the Goddess of Travel intercedes. Right in front of me, a TSA officer unclips the nylon belt holding us at bay and announces they are opening a new screening area. I thank the Goddess, and follow the woman beckoning with her hand.

Like a pied piper she leads us past the rows of ticketing desks and into a lonely corridor. We walk forever and I wonder if I actually saved any time.

“Can we get to United’s gates from back here?” a man asks, mirroring my own growing unease as we travel well past the last ticketing booth.

“Yes, all gates from here,” our guide replies with confidence.

Finally, we round a bend in the deserted hall and stop. I suck my breath in and curse the Goddess of Travel.  That witch, she’s tricked me again. The Rape-U scans have finally come to San Francisco.

Oct. 17, 2011

Albuquerque International Sunport Security Checkpoint:

I pass a camera crew filming the ticket counter. I stop and consider telling them what I am about to do, but decide against it. They probably won’t care. Instead, I wheel my baggage to the security area.

I can feel my heart beat in my chest. I’ve never done anything like this. I’ve always said “Yes sir,” even when I didn’t agree. Even this simple act fills me with conflicting emotions.

New Mexico is far warmer than my native Pacific Northwest. I’m sweating by the time I reach the first inspection of my ID. I’m sure I already look like a terrorist. The TSA agent, perched on his stool, takes no notice. I look enough like my driver’s license and I have a valid airline ticket. He black lights my ID and lets me pass with hardly a glance.

I’ve come here to moonlight from my real job. My daughter had an operation, and I had to come up with thousands in deductible. She’s in college and, so far, I’ve managed to keep her from becoming a debt slave, like her mother. I took eight extra weekends of work in the Land of Enchantment to cover the cost. I’m lucky, I guess, I can do that. Others, with fewer job opportunities, have no choice but to go bankrupt.

My heart kicks it up another notch when I get to the conveyor belt. Shouldn’t have had that coffee this morning but thank God I didn’t eat anything, or I’d be hugging the trash can right now.

Come on, I tell myself, what are they going to do? Confiscate your toothpaste? Say something mean to you? So what. Relax. You can do this. You should do this. You have to do this.

I take off my shoes and strip my backpack of computer and the baggie of incidentals. I stand in line while my armpits grow embarrassingly moist and I feel my heart race. I think, Get a hold of yourself. You’re being a drama queen.

When it is my turn, I decline to go through the monitor that scans under your clothes, as I always do. The TSA agent starts his spiel about how safe it is. I’ve done my research. His statements are questionable, but that is not why I am doing this. I start my own spiel.

“The Fourth Amendment of the Constitution reads: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, an particularly describing the place to be searched, and the persons or things to be seized.”

Cross posted from The Stars Hollow Gazette

Is this what our brave men and women fought and died for, a police state?  Bush had people arrested at his rallies for tee shirts and bumper stickers, now people are being arrested for dancing which the courts are ruling is a form of “protest”. What would Jefferson have thought about this and the way the Park Police behaved?

Six years after the Log Cabin Republicans filed suit, and 7 weeks after closing arguments on July 23,  Judge Virginia A. Phillips of the US District Court, Central District of CA, issued a landmark ruling yesterday, which overturned “Don’t Ask, Don’t Tell.”   Judge Phillips said in her ruling that it violates servicemembers’ Constitutional rights, and that she would issue an injunction against the government to stop it from being further enforced.

Log Cabin Republicans (LCR)  said DADT violates due process guaranteed by the 5th amendment of the Constitution and their freedom of speech, association, and the ability to petition the government, guaranteed by the 1st amendment.

Is this finally the end of one of President Clinton’s least popular compromises of the last century ?  Or will the Obama administration, who has dawdled on fulfilling a campaign promise to end DADT by refusing to issue an executive order, appeal, and continue to waffle and defer to yet another Pentagon study after Defense Secretary Gates’ latest one is due out on Dec 1 2010 ?

Since the policy was first introduced in 1993, over 13,000 military personnel have been discharged because of DADT, with 619 being discharged in 2008 and 428 being discharged in 2009.  (In the first two years of the Bush administration, it was 1,241 and 1,273 troops discharged, respectively).  Per wikipedia, of the the 26 counties of NATO, more than 22 of those already permit gay people to serve,  all of the countries of the European Union except Greece permit gay people to serve, and of the UN Security Council, 3 countries, Great Britain, France, and Russia permit gays to serve, with only the United States and China still stuck in the past.  

http://www.guardian.co.uk/worl…

The decision puts the White House in a quandary, since it comes as the Obama administration is in the middle of a cautious and drawn-out attempt to lift the ban on homosexuals serving openly in the US military.

But those carefully calibrated plans may now be thrown out the window, after Judge Phillips granted a request for an injunction halting “Don’t Ask, Don’t Tell” from operating, saying evidence showed that it had a “direct and deleterious effect” on the military.

A pdf of the complete ruling by Judge Phillips is here, Log Cabin Republicans v. United States of America and Robert M Gates, Secretary of Defense:

http://www.cacd.uscourts.gov/C…

excerpt:

Many of the lay witnesses also spoke of the chilling effect the Act had on their ability to bring violations of military policy or codes of conduct to the attention of the proper authorities.

__

The Act prevents servicemembers from openly joining organizations such as the plaintiff in this lawsuit that seek to change the military’s policy on gay and lesbian servicemembers; in other words, it prevents them from petitioning the Government for redress of grievances. John Doe, for example, feared retaliation and dismissal if he joined the Log Cabin Republicans under his true name or testified under trial; thus, he was forced to use a pseudonym and to forgo testifying during trial. (Ex. 38 Doc Decl. pp 6- 8; see Trial Tr 88:19- 90:15, July 13, 2010, 708:21- 709:4, July 16, 2010 )

Furthermore, as discussed above, the Act punishes servicemembers with discharge for writing a private letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before volunteering for military service. It subjects them to discharge for writing private e- mail messages, in a manner otherwise approved, to friends or family members, if those communications might lead the (unauthorized ) reader to discern the writer’s sexual orientation. These consequences demonstrate that the Act’s restrictions on speech are broader than reasonably necessary to protect the Government’s interest. Moreover, the Act’s restrictions on speech lead to the discharge of servicemembers with qualifications in critically needed occupations, such as foreign language fluency and information technology. The net effect of these discharges, as revealed not only in the testimony of the lay witnesses but also of the experts who testified and Defendants’ own admissions regarding the numbers of servicemembers discharged and the costs of recruiting and maintaining an all volunteer military force, compel the conclusion that the Act restricts speech more than reasonably necessary to protect the Government’s interests.  

Finally, it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act. This evidence, discussed in Section IV(C)(1) above, does not suffice to show the Act’s restrictions on speech are “no more than what is reasonably necessary” to achieve the goals of military readiness and unit cohesion. (See supra Section IV (C)(1)

VI. Conclusion

Throughout the consideration and resolution of this controversy, the Court has kept well in mind the overriding principle that “judicial deference to such congressional exercise of authority is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.” Rostker, 453 U.S.at 70.  Nevertheless, as the Supreme Court held in Rostker, “deference does not mean abdication.” Id. at 67,70.  Plaintiff has demonstrated it is entitled to the relief sought on behalf of its members, a judicial declaration that the Don’t Ask, Don’t Tell Act violates the Fifth and First Amendments, and a permanent injunction barring its enforcement.

“Deference does not mean abdication….”  but since the Obama Dept. of Justice abdicated putting on much of a defense, does this mean they’re finally going to stop deferring to this form of discrimination ?