On Thursday, an appeals court in San Francisco rejected a request by the Trump administration to re-instate its sweeping executive order banning travel by individuals from seven predominantly Muslim countries. In denying the request, the three-judge panel of the 9th Circuit Court of Appeals unanimously found that “the Government has not shown that the Executive Order provides what due process requires,” and that “the Government’s authority and expertise in [such] matters do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals.”
In its legal brief, the Trump Justice Department claimed that the lower court’s restraining order blocking the ban’s enforcement “immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment.” In oral arguments, August Flentje, the Justice Department lawyer defending Trump’s ban, called it “extraordinary” and “troubling” for the courts to engage in “second-guessing of the national security decision made by the president. The administration mentioned “national security” 15 times in its 24-page brief, doing all it could to hammer home the point that courts owe special deference to the executive branch when national security is at stake. Trump himself weighed in on Wednesday, calling the hearing itself “disgraceful” since our nation’s “security is at risk.”
The 9th Circuit wasn’t having it. And so the world has dodged a bullet—for the moment: The decision will likely be appealed to the Supreme Court, and what’s being contested in this particular showdown is the narrow issue of whether a temporary restraining order should be lifted rather than the overall legality of the travel ban. But whatever happens in this court battle, it has removed any doubt about the ominous risk of outright tyranny emerging from this White House, justified by national security claims that the president believes only he can make.
Indeed, Trump’s effort to cloak the suspension of constitutional rights in the mantle of national security may be the single gravest danger this administration presents to the republic. With a long history of abuse behind it, the doctrine of “judicial deference” to the executive, which can mean giving presidential and military decisions carte blanche to trample the Constitution simply because those making them claim they are necessary to protect national security, has the potential to decimate resistance to tyranny by an entire branch of our government—the last defense against the rampant trampling of our most fundamental rights. This is a frightening prospect in any scenario—but a truly terrifying one in the case of a national emergency such as a major terrorist attack, a natural disaster, or the outbreak of an epidemic or civil unrest.
To see how easily the national security mantle can be used to deny an entire population their fundamental rights for decades, one need only look at the recent history of the fight for lesbian, gay and bisexual military service.
The tale of “don’t ask, don’t tell” and the ban’s numerous previous incarnations contains all the same ingredients as the current battle between Trump and those caught in the clenches of his executive overreach: Blanket assertions that a disfavored minority group is an inherent threat to national security; a total lack of evidence to support such assertions, along with claims that such evidence isn’t necessary anyway; insistence on judicial deference to the executive or military without qualification; repudiation of the doctrine of judicial review by claiming a literally “unreviewable” authority by the executive to make policy alleged to be necessary for “national security”; substantial limits to the constitutional rights of the disfavored minority; claims that national security is at stake while clear evidence reveals that, in fact, it is cultural and religious animus that’s driving the actions; policies that actually harm national security but are presented as necessary to preserve it; and a long, slow drip of cultural and social messaging that conspired to create a set of groundless assumptions of minority threat that eventually became received wisdom.
As a result of all this, the ban on openly gay service was repeatedly upheld by federal courts because, as one judge put it, “the military is entitled to deference for its professional determination that [asserted] legitimate concerns would adversely impact our nation’s military readiness.”
Denying lesbian, gay, and bisexual people the right to serve in uniform was devastating to such people and hampered military readiness. But its damage was far narrower than what may be in store for our nation under a President Donald Trump armed with the national security ruse. To show how easily history can repeat itself, and to offer a cautionary tale in hopes that, nevertheless, it won’t, below I have excerpted and adapted brief passages from my book Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America. In it, several of the military leaders who signed off on “don’t ask, don’t tell” acknowledged their complicity in promulgating an unnecessary and harmful policy of exclusion and punishment based on little more than bias and fear. My study of this half-century strategy reveals how important the long-term buildup of a cultural mythology around national security can be in bolstering devastating legal and policy decisions that can wreck lives and cripple democracy.
The key lesson here is this: The courts have the power to resist executive tyranny if they so choose, just as Congress has the power to stop much of Trump’s destruction in its tracks. But throughout history, both branches have shown themselves to be tepid sentinels of democracy when the banner of national security is waved before them. Again and again these branches have been unwilling to do the right thing, at least without extraordinary pressure by the people. That makes this one of those moments when the textbook definition of democracy—that the people are in charge—is tested, and when we must rise to pass that test.
The courts, like the Congress, do not exist in a vacuum. Judges make their decisions in a context of public thought and discourse. What’s important to understand is that the narratives and ideas that shape their thinking often emerge gradually rather than overnight—even when we’re dealing with jolting political change.
This means the risk of rights and liberties being whittled away gradually—and thus less perceptibly—is high. It also means that we, the concerned public, must be vigilant about efforts to craft and spread a false narrative about national security threats that judges may be more likely to accept. Our job, even in a post-fact world and with all the nefarious forces of power arrayed against us, is to craft and spread a counternarrative, one based on facts, at every moment when those forces assert that immigrants or any other vulnerable population are inherent threats to our nation’s security. We must be equally vigilant in guarding against our own vulnerability to the idea that outlandish propositions to that effect may, in fact, be reasonable. This is what’s meant by guarding against “normalization.” The best—perhaps the only—hope of avoiding a potentially calamitous evisceration of our constitutional rights is to put ourselves on high alert and to guard against what might very well be a slow-roll to tyranny. And to study our history.
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Adapted, with the permission of St. Martin’s Press, from Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America, by Nathaniel Frank
How Fake National Security Claims Actually Harm National Security
On Sept. 10, 2001, the U.S. government intercepted two phone calls placed from Afghanistan between al-Qaida operatives. “Tomorrow is zero hour,” said one of the voices. “The match is about to begin,” came another ominous line. The National Security Agency intercepts millions of messages every hour, but these calls came from sources deemed to be high priority. They were, of course, spoken in Arabic, so they made their way to a translator’s queue, waiting to be interpreted. Unfortunately, in the fall of 2001 our government did not have enough Arabic linguists to translate the messages quickly. The phone calls were not translated until two days later, on Sept. 12, 2001. It was two days too late.
A major reason for the shortage of Arabic interpreters was that, under “don’t ask, don’t tell,” the military was kicking out droves of them simply because they were gay or lesbian. Under the banner of protecting national security, federal policy required needlessly ousting some of the country’s most valuable human assets, at great cost to … national security. In 2002, the Army reported that it could only find 42 of the 84 Arabic linguists it needed to hire. These dire linguist shortfalls, the Army complained, “affect its readiness to conduct current and anticipated military and other missions.” A Government Accountability Office study that year concluded that the shortages “have adversely affected agency operations and compromised U.S. military, law enforcement, intelligence, counterterrorism and diplomatic efforts.” The 9/11 Commission Report found that the government “lacked sufficient translators proficient in Arabic and other key languages, resulting in significant backlog of untranslated intercepts.” A Pentagon advisory panel reported in 2004 that the United States “is without a working channel of communications to the world of Muslims and Islam.”
Incredibly, by 2005, government data showed that 757 troops with “critical occupations” were fired under “don’t ask, don’t tell.” These included voice interceptors, interrogators, translators, explosive ordnance disposal specialists, signal intelligence analysts, and missile and cryptologic technicians. Three hundred and twenty-two fired service members had skills in what the military deemed “an important foreign language.” Fifty-five of them spoke Arabic. By the time “don’t ask, don’t tell” ended in 2011, nearly 14,000 Americans had been fired for being lesbian, gay or bisexual.
A Culture War Masquerading as a Security Concern: The Mythology of the Gay Threat
It is clear upon even passing scrutiny that it was the moral imperatives of evangelical Christianity that underlay the strongest opposition to gay and lesbian service back in 1993. Yet conservative Christians and their allies understood that citing biblical damnation of homosexuality would not, in itself, be enough to persuade the country in its quest to block gay equality. They recognized that they would face objections or indifference from large segments of the population—and likely run into constitutional problems—if they relied on religious injunctions alone to oppose gay rights. So they advanced a narrative that sought to tie gay service to concrete dangers, even where none existed. Gay rights, they argued, represented not only a threat to children and families, but to national security. Gay military service, in particular, would undermine the armed forces and thus the security of the nation. The narrative tapped into the old mythology of “homosexual incompatibility” with military service and to the idea that gay people were an inherent security risk. But the contribution of the religious right was to spread that message with phenomenal efficiency and to insinuate the argument into the national debate by pressing powerful political and military leaders to make it their mantra.
This view, of course, was one already shared by many military officials, some of whom were evangelicals themselves. But strategists at groups such as the Family Research Council had quickly become experts at casting their reflexive disgust with homosexuality as a well-considered assessment of whether gay service would be good or bad for the national security. The “military effectiveness” argument and the “homosexuality is a sin” argument shared a reliance on both the mortal and moral danger of homosexuality, and each gave the other the missing credibility that it lacked on its own. This marriage was the most important factor in orchestrating the eventual defeat of Bill Clinton’s effort to lift the ban in 1993. For the religious right, it was a conscious, explicit, if not broadly advertised, campaign to give national standing to sectarian moral beliefs by enlisting the cache of military leaders whose opinions were widely respected and routinely shielded from civilian skepticism under the rubric of national security. And the connections were greased by the long-standing presence of evangelical Christians in positions of power in the armed forces.
The debate over gay troops was a perfect opportunity for religious groups and the “research” wings they had erected to amplify longstanding beliefs that gay equality was an existential threat to the republic—through a variety of infectious means. FRC position papers asserted that lifting the gay ban not only threatened to undermine families and destabilize innocent children but actually “could cost lives.” “Promiscuous, anal sex, which is practiced by the typical homosexual male, has proved to be the most efficient way to transmit” the HIV virus, wrote FRC’s “director of cultural studies,” Robert Knight, in a 1992 policy paper. Military life, he continued, “is not a pristine environment. People get cut and scratched while in intimate proximity. In real battle, blood can flow freely.” Surely it was an unfair threat to place a heterosexual “in mortal fear for his life in case his homosexual comrade suffered a bleeding wound of any kind.” Knight had slipped into using gay men and HIV sufferers completely interchangeably. The military had had a highly touted AIDS screening program in effect since 1985.
Having declared their “revulsion toward homosexuality” stemming from “an appreciation of the natural relationships between men and women,” FRC researchers tried to claim in the very same article that their actual concern was with the needs of the armed forces: “The real issue is military readiness, and whether the inclusion of active or self-avowed homosexuals would have a detrimental effect on military efficiency and fighting ability.” Evangelicals complained that they had been told by political allies not to express their anti-gay opposition in moral terms, which became a source of endless frustration to Christian conservatives who felt called to oppose any violations of their religious beliefs. Still, they did all they could to oppose the admission of gays into the military, even if it meant making secular arguments instead of the religious ones they truly cared about.
The religious right was highly effective in getting its message out to the military brass and, through them, to Congress and the American public. The mixture of guns, sexuality, and security made for racy copy, and the question of gay service quickly became something of an obsession for the media. An outpouring of front-page and lead stories clogged the major papers and television news shows for the next eight months. While many newspapers editorialized in favor of letting gays serve, the American public was decidedly mixed and would grow more opposed to the idea the more they heard the scare stories of military brass and the religious right on national security, the spread of disease, and the decline of the American family.
Ignoring the Evidence
The government’s conclusion that banning open gays from the military was necessary to preserve privacy, cohesion, and effectiveness was wholly unsupported by evidence. In fact, data showed clearly that open gays could and did serve in the military without undermining cohesion and that the gay ban itself caused more problems in the military than the presence of open gays in a unit. The evidence for this was plentiful, undeniable, and came from a vast range of sources: studies, statistics, interviews, opinion surveys, military data, government reports, academic experts, independent assessments, internal reviews, press accounts, and more. Yet such evidence rarely played any role in policy discussions because it was consistently ignored every time the government confronted the issue of homosexuality and military service.
To wit: In 1993, the Defense Department commissioned the RAND Corporation, a think tank with longstanding ties to the military community, to study the prospects of openly gay service. RAND sent a team of 75 highly credentialed, multidisciplinary social scientists from its National Defense Research Institute across the globe to research the issue. The result was a 500-page study concluding that sexual orientation was “not germane” in determining who should serve.
Yet the RAND report barely made it out of the firm’s Santa Monica headquarters. According to the New York Times, Pentagon officials tried to keep the study from going public and refused to talk about it. When summaries were leaked to the press, military officials complained bitterly that the report “exceeded its mandate.” RAND’s recommendations, said one senior officer, are “unacceptable to the military,” and “unacceptable practically and politically to Congress.” According to the Times, Pentagon officials admitted that they never actually considered the report when shaping the final policy because of their own resistance and that of the Joint Chiefs of Staff.
Instead, the military issued its own 15-page report authored by a small cadre of admirals and generals accountable to no one but the secretary of defense. The flag officers, who formed the “Military Working Group” to “study” the issue were not exactly experts on the topic. The group was first headed by Lt. Gen. Minter Alexander, a command pilot in the Air Force with three decades of service. “We didn’t really understand entirely what all was meant by ‘sexual orientation,’ ” recalled Alexander. “We had to define in the first few sessions what we figured they were talking about.” Alexander had real questions about openly gay military service but felt he came to the project with an open mind. That’s not what he found among his peers. “They thought they knew the results of what was going to happen there,” recalled Alexander. “It was going to be very difficult to get an objective, rational review of this policy.” Alexander said the group had no empirical data. So their conclusions were “subjective,” based on their own preexisting views. In tense meetings with emotions running high, representatives from each service branch rolled out the doomsday scenarios they were bred by instinct and culture to dread. “You just wouldn’t believe the litany of” fears that came up in those meetings, Alexander recalled. “Barracks, bathrooms, roommates, hot bedding on submarines, readiness, all this was coming out.”
Rear Adm. John Hutson had a front-row seat at the MWG’s deliberations as a key aide to the navy JAG’s office. For him, the whole process provided an object lesson in how good people can let fear, ignorance, and emotion override rational inquiry. As an assistant, Hutson had to tend to details when his superiors couldn’t be bothered. “None of them had much of a sense of what was going on,” he recalled. “We were all a bunch of white guys who were born in the 1940s. And the decisions were based on nothing. It wasn’t empirical, it wasn’t studied, it was completely visceral, intuitive.” Hutson said there were “lots of horribles”: What about the showers, what about the subs, how are we going to deal with all this? “It was ridiculous, it was all by the seat of our pants.” Ultimately, they “hung everything on the question of ‘unit cohesion.’ ” It was a version of the MWG’s recommendations that became “don’t ask, don’t tell.”
The Pentagon, it turns out, has a long history of denying, destroying, and suppressing studies that undercut the rationale for discriminating against gays. As early as 1957, the secretary of the Navy appointed a panel to investigate its homosexual exclusion policy. The outcome, known as the Crittenden report, found that homosexuals posed no greater security risk than heterosexuals. “No factual data exist to support the contention that homosexuals are a greater risk than heterosexuals,” it stated. The Navy refused to release the report, and it was only made public by court order two decades later.
A generation later, the pattern was repeated when, in 1988 and 1989, a Defense Department research center wrote a series of reports finding that gays in the military were not a security risk. The Personnel Security Research and Education Center (PERSEREC), a research wing of the Pentagon, authored the reports. Like the RAND study, the PERSEREC reports found no evidence showing that gays were unsuitable for military service and concluded that assumptions of a gay threat were based on fear rather than facts. “Buried deep in the supporting conceptual structure” of the ban’s defense, said one report, “is the fearful imagery of homosexuals polluting the social environment with unrestrained and wanton expressions of deviant sexuality.” Yet “all the studies conducted on the psychological adjustment of homosexuals that we have seen lead to contrary inferences.”
When the military brass got word of PERSEREC’s findings, they balked. For months, they denied that the studies existed. According to Lawrence Korb, assistant secretary of defense under President Ronald Reagan, the Defense Department ordered the reports destroyed. For Korb, this was the last straw. “After I saw those PERSEREC studies in the 1980s,” recalled Korb, “I was convinced that we were really stupid because now, we had data that said there was no real threat posed by gays in uniform.” Instead of heeding the data, the military invented a new justification for the ban—the “unit cohesion rationale,” which, as courts would eventually show, had no more evidence supporting it than any of the other false narratives pushed for decades to discredit and subordinate a harmless minority whose members simply wanted to be able to don their country’s uniform and offer it their selfless service.
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Wrapped in the language of national security, individual sacrifice, and the unique demands of military service, defenders of the military’s ban were able to ward off serious scrutiny of the need for reform. They were able to substitute the personal judgment of military and political leaders for persuasive evidence about the real nature of the threat, and to cast that judgment as rooted in professional experience rather than personal prejudice. The courts and the Congress played along willingly, accepting hook, line, and sinker that the risk of flouting military judgment on gay service was too high to brook. And it didn’t seem to matter that even the ban’s advocates, including Charles Moskos, the academic architect of “don’t ask, don’t tell,” acknowledged publicly that the ban was rooted not in genuine concerns over unit cohesion but in “antipathy toward gays” and outright “prejudice”—views, the professor added, that had a “rational basis.”
Gays and lesbians were denied equal treatment in the U.S. military for two centuries not because they ever threatened national security but because of the unresolved fears of too many straight people—and the willingness by courts, Congress, and the public to indulge and exploit these fears for their own comfort or gain. “Don’t ask, don’t tell” was an expression of collective denial that required deception in the name of “morale.” By creating a climate that was blindly intolerant of difference, by turning itself into a proving ground for fragile masculinity, the military mocked the freedoms it was paid to protect. It sent the message that anyone who didn’t fit conventional notions of what it meant to be a “real man” or a “real woman” was somehow dangerous, ineffectual, or both. It perpetuated the notion that difference was so dangerous that it was, literally, unspeakable. And it suggested that only the straightest of arrows—in the narrowest sense—deserved equal treatment and the opportunity to take their place as full American citizens.
