And The Verdict Is… Open!

Eli Lake at The Washington Times:

President Obama on Monday lifted the ban he imposed two years ago on military trials for detainees at the Guantanamo Bay prison, ending his bid to move most terrorism trials to civilian courts and pushing his already busted deadline for shuttering the island prison indefinitely forward.

The reversal came as Defense Secretary Robert M. Gates visited Afghanistan and indicated that he was willing to keep a presence of U.S. forces in the war-torn country beyond the Obama administration’s 2014 pullout goal, highlighting again the difficulty the president has had moving from the policies of President George W. Bush.

Mr. Obama announced the Guantanamo decision in an executive order that also sets forth a periodic review process for detainees who have not been charged or convicted but are still considered threats to the U.S.

White House aides stressed that Mr. Obama remains committed to closing the prison, which he has described as a key recruiting tool for terrorist groups, and pursuing some cases in civilian courts. Mr. Obama vowed during the campaign to close the prison by the end of 2009, his first year in office.

Massimo Calabresi at Swampland at Time:

All of this responds to Obama’s archives speech of May 2009, where he walked back his more progressive January 2009 position but tried to retain a bulwark of detention and prosecution principles for terrorism detainees. Since then, Congress has passed laws blocking the closure of Gitmo by preventing the transfer of detainees by the executive branch. House and Senate Republicans (McKeon and Graham) are expected to introduce bills further blocking detainee access to U.S. courts in the coming week.

On a conference call Monday, Obama senior advisors said the president remains committed to closing Gitmo by diminishing the number of detainees held there. But the moves announced today could have the opposite effect, admits a senior White House official. The Bush and Obama administrations have faced repeated habeas corpus challenges to their detention of alleged terrorists at Gitmo. Last I checked, detainees bringing habeas cases were winning by a 4-to-1 ratio. By increasing due process at Gitmo, the new measures make it more likely judges will defer to the executive branch and rule against detainees claiming they are being held unfairly at Gitmo. One administration official argued that judges would not be affected by the new procedures.

The habeas releases remain the only way that Gitmo’s numbers can decrease these days. The administration is still debating how to comply with the Congressional ban, but as long as it is in place even a detainee who uses his new due process rights to challenge his detention in military commissions and wins will stay in Gitmo forever… or until Congress changes its mind about closing it down.

Amy Davidson at The New Yorker:

Who wins in this? Do we think that “American system of justice” means whatever it is Americans do, as long as some court-like trappings are present? The order acknowledges that the “privilege of the writ of habeas corpus” is available to inmates, but also sets up a routine for holding prisoners indefinitely without charges (what the order calls “the executive branch’s continued, discretionary exercise of existing detention authority”). In statements today, Obama, Attorney General Eric Holder, and Secretary of Defense Robert Gates all mentioned how highly they thought of the federal court system. Gates said,

For years, our federal courts have proven to be a secure and effective means for bringing terrorists to justice. To completely foreclose this option is unwise and unnecessary.

So this order doesn’t “completely foreclose” on the rule of law—is a partial foreclosure supposed to count as a moral stand? Given all the nice things the Administration has to say about the federal court system, one would think that it might find it wise, and even necessary, to actually use it a bit more. Instead, the statements seem more concerned to note that the President is not giving up any options or powers—as if bringing accused murderers to court were a prerogative, rather than an obligation. No doubt, Republicans, and some Democrats, have made it hard for Obama to close Guantánamo. But it might be easier if he wanted to do it; the order today makes it sound like he considers it a somewhat useful place. It is not.

Speaking of questionable detention measures: Can someone in the Administration explain, slowly and clearly, why Bradley Manning, the soldier accused of leaking the WikiLeaks cables, is required to stand naked in front of his cell in the morning and sleep naked, ostensibly for his own protection? The military’s explanations so far—that he could somehow harm himself with underwear (though he is not on suicide watch and is being monitored by video) so he can’t sleep in any, and then there is just no time for him to put underwear on in the morning before they get him out of the cell—are just not plausible. (By coincidence, a case about Americans being strip-searched after being arrested for minor offenses may be coming before the Supreme Court.) A naked man who hasn’t been convicted of a crime—that shouldn’t be what American justice looks like.

Josh Rogin at Foreign Policy

Bryan Preston at PJ Tatler:

Only two years into his presidency, Barack Obama has learned that there are no easy answers to dealing with captured transnational terrorists. It’s easy to create sound bites decrying the evils of holding terrorists at Gitmo, and it’s easy to create sound bites about how awful it is to try them in military tribunals (even though that’s where illegal enemy combatants should rightfully be tried), but it’s very hard to change reality. So bowing to reality, Obama has authorized the re-start of military trials for captured terrorists.

John Yoo at Ricochet:

The Obama administration’s anti-war campaign rhetoric and naive first-year promises continue to collide with reality.  And happily, reality continues to prevail.  The Obama administration has finally admitted, I think, that the Bush administration’s decision to detain al Qaeda operatives and terrorists at Gitmo was sensible.  It wasn’t driven by some bizarre desire to mistreat terrorists, but instead was the best way to address security concerns without keeping them in Afghanistan or inside the United States.

It also turns out that the military commission trials too were a sensible decision.  Civilian trials threaten the revelation of valuable intelligence in a covert war where hostilities are still ongoing. Military commissions allow a fair trial to be held but one that does not blow our wartime advantages.  Meanwhile, the Obama administration’s track record has been poor — it was lucky to get the limited convictions that it has.  Obama folks owe an apology to the Bush administration for their unjust criticism of military trials.

It should also be noted that Obama did not come to this turnabout after reasoned consideration alone.  I think there are significant figures in the administration that would still love to close Gitmo tomorrow and give every terrorist the same exact trials reserved for Americans who commit garden-variety crimes.  Congress dragged the administration kicking and screaming to this destination by cutting off funds for the transfer of any detainees from Gitmo to the U.S.  This effectively used Congress’s sole power of the purse to prevent Obama from making a grievous national security mistake.  The new Congress should continue to keep the ban in its Defense spending bills to prevent Obama from another 180 degree turn.

Adam Serwer at Greg Sargent’s place:

Conservatives committed to burnishing Bush’s legacy were quick to claim vindication, arguing that the decision proved that the detention camp at Gitmo was a good idea all along. But Obama’s decision doesn’t prove this at all.

The administration also released an executive order outlining its new indefinite detention policy. Not much has changed from when I first wrote about it a few months ago — the new procedures formally adopt what Karen Greenberg referred to as “the heart of Bush policy” while making the process marginally fairer by allowing individuals detained indefinitely who have lost their habeas cases to be represented by counsel during periodic reviews every six months.

The president and the secretary of defense also reiterated the importance of trying terrorists in federal courts, but they might as well be shouting into the wind. The ban on funds for transfers of Gitmo detainees to federal court won’t be going away any time soon, but it’s worth remembering that ban actually ensures that fewer terrorists would be brought to justice than would be otherwise. Only six terrorists have ever been convicted in military commissions, compared to hundreds in federal court.

Failing to close Gitmo remains the most visible symbol of the president’s failure to reverse the trajectory of Bush-era national security policy, but the reality, as Glenn Greenwald notes this morning, is that most of the substantive decisions adopting Bush policies were made long ago. The new policies don’t amount to a “reversal” on the issue of whether Gitmo should be closed. Republicans are eager to portray Gitmo staying open as a “vindication” of the prison’s usefulness, but the fact that the indefinite detention order is limited to detainees currently at Gitmo means that the administration won’t be reopening the facility to new detainees, as Bush apologists have suggested doing.

Gitmo isn’t open because the administration doesn’t want to close it, although its efforts in this area are ripe for criticism. It’s still open because Republicans in Congress successfully frightened Democrats in Congress out of giving the administration the necessary funds to close it when they had control of Congress. In the process, they’ve managed to obscure the original reason detainees were brought to Gitmo — to keep them away from the scrutiny of the federal courts. Once the Supreme Court held that federal courts had jurisdiction and even habeas rights, the facility was useless for that purpose. Republicans are determined to keep it open not because we can’t safely imprison terrorists in the U.S., but because they feel its ongoing presence vindicates Bush in the eyes of history.

Glenn Greenwald

“Here I Am. Tell Me I Didn’t Do The Things That I Did.”

Sharyl Attkisson at CBS News:

Federal agent John Dodson says what he was asked to do was beyond belief.

He was intentionally letting guns go to Mexico?

“Yes ma’am,” Dodson told CBS News. “The agency was.”

An Alcohol, Tobacco and Firearms senior agent assigned to the Phoenix office in 2010, Dodson’s job is to stop gun trafficking across the border. Instead, he says he was ordered to sit by and watch it happen.

Investigators call the tactic letting guns “walk.” In this case, walking into the hands of criminals who would use them in Mexico and the United States.

Dodson’s bosses say that never happened. Now, he’s risking his job to go public.

“I’m boots on the ground in Phoenix, telling you we’ve been doing it every day since I’ve been here,” he said. “Here I am. Tell me I didn’t do the things that I did. Tell me you didn’t order me to do the things I did. Tell me it didn’t happen. Now you have a name on it. You have a face to put with it. Here I am. Someone now, tell me it didn’t happen.”

Agent Dodson and other sources say the gun walking strategy was approved all the way up to the Justice Department. The idea was to see where the guns ended up, build a big case and take down a cartel. And it was all kept secret from Mexico.

ATF named the case “Fast and Furious.”

[…]

On Dec. 14, 2010, Border Patrol Agent Brian Terry was gunned down. Dodson got the bad news from a colleague.

According to Dodson, “They said, ‘Did you hear about the border patrol agent?’ And I said, ‘Yeah.’ And they said ‘Well it was one of the Fast and Furious guns.’ There’s not really much you can say after that.”

Two assault rifles ATF had let go nearly a year before were found at Terry’s murder.

Dodson said, “I felt guilty. I mean it’s crushing. I don’t know how to explain it.”

Sen. Grassley began investigating after his office spoke to Dodson and a dozen other ATF sources — all telling the same story.

Mark Krikorian at The Corner:

When Border Patrol Agent Brian Terry was murdered by drug smugglers in Arizona last December, Tom Tancredo revealed that Terry’s BORTAC unit (the Border Patrol’s equivalent of a SWAT team) were armed with bean-bag rounds in their weapons:

Here’s the part Homeland Security Secretary Janet Napolitano and Border Patrol management are trying to hide: Border Patrol Agent Terry and the BORTAC team were under standing orders to always use (“non-lethal”) bean-bag rounds first before using live ammunition. When the smugglers heard the first rounds, they returned fire with real bullets, and Agent Terry was killed in that exchange. Real bullets outperform bean bags every time.

At the time, the government denied such “bizarre Internet-fueled rumors”:

“There was no order given to CBP law enforcement personnel – now or in the past – that dictates the use of less-than-lethal devices before using deadly force,” stated CBP’s Southwest Border Field Branch Office of Public Affairs.

Oops:

Records show agents fired beanbags in fatal border gunfight
Brady McCombs Arizona Daily Star | Posted: Thursday, March 3, 2011 12:00 am

Border Patrol agents shot beanbags at a group of suspected bandits before the men returned fire during a confrontation in a remote canyon, killing agent Brian Terry with a single gunshot, records show.

And an illegal immigrant wounded in the gunbattle who is now the only person in custody linked to the slaying contends he never fired a shot, according to FBI search warrant requests filed in the U.S. District Court in Tucson.

The documents provide the most detailed version yet of what happened in the deadly gunbattle Dec. 14 in Peck Canyon, northwest of Nogales.

The documents say the group of illegal border entrants refused commands to drop their weapons after agents confronted them at about 11:15 p.m. Two agents fired beanbags at the migrants, who responded with gunfire. Two agents returned fire, one with a long gun and one with a pistol, but Terry was mortally wounded in the gunfight.

Border Patrol officials declined to answer questions about protocol for use of force, citing the ongoing investigation.

Bryan Preston at PJ Tatler:

It seems highly unlikely that officers would choose to load beanbags instead of live rounds. That’s not the kind of thing field agents come up with. It’s a policy that’s so stupid it had to come from Washington.

And even worse than Washington’s policy stupidity: No one will be held to account for the killing of BP agent Brian Terry

The Jawa Report

Brian Doherty at Reason:

Presented as an interesting case study in the way law enforcement actually thinks–not to say that it is an essential task of U.S. law enforcement to “keep guns out of Mexico.” Our real culpability in Mexican gun violence lies, of course, in our drug prohibition, as see Jacob Sullum from earlier today.

Patterico at Patterico’s Pontifications:

How were they tracing the guns across the border? Was this murder also the result of guns that the Obama administration deliberately allowed into Mexico?

Keep a close eye on this one.

Regardless of whether that is the case, it is clear that this was a stupid idea in any event. Who knows how much violence has increased due to the new availability of thousands of assault rifles and other powerful weapons?

Jim Hoft at Gateway Pundit:

But, don’t worry.
Barack Obama says the border is as safe today as it’s ever been.

Subterranean Agenda Blues

Kenneth T. Walsh at US News:

On March 12, 2010, President Obama welcomed me into the Oval Office for an interview for this book. Dressed in an elegant dark blue business suit and tie with an American flag pin in his left lapel, he was serene and confident. Behind him was the portrait of George Washington that has hung in the Oval Office for many years. Flanking that portrait were two busts added by Obama, reflecting his own values and heroes—behind him on his right was a likeness of Martin Luther King Jr., and on his left was one of Abraham Lincoln.

Obama was in a reflective mood. He began the interview by saying he had been “fully briefed” on my topic and was ready for me to “dive in.” He proceeded to methodically defend his effort to build a race-neutral administration. “Americans, since the victories of the civil rights movement, I think, have broadly come to accept the notion that everybody has to be treated equally; everybody has to be treated fairly,” the president told me. “And I think that the whole debate about how do you make up for past history creates a complicated wrinkle in that principle of equality.”

[…]

But Obama, in his most candid moments, acknowledged that race was still a problem. In May 2010, he told guests at a private White House dinner that race was probably a key component in the rising opposition to his presidency from conservatives, especially right-wing activists in the anti-incumbent “Tea Party” movement that was then surging across the country. Many middle-class and working-class whites felt aggrieved and resentful that the federal government was helping other groups, including bankers, automakers, irresponsible people who had defaulted on their mortgages, and the poor, but wasn’t helping them nearly enough, he said.

A guest suggested that when Tea Party activists said they wanted to “take back” their country, their real motivation was to stir up anger and anxiety at having a black president, and Obama didn’t dispute the idea. He agreed that there was a “subterranean agenda” in the anti-Obama movement—a racially biased one—that was unfortunate. But he sadly conceded that there was little he could do about it.

His goal, he said, was to be as effective and empathetic a president as possible for all Americans. If he could accomplish that, it would advance racial progress for blacks more than anything else he could do.

Mike Riggs at Daily Caller:

Pres. Obama has successfully avoided reducing the complex populist outrage of the Tea Party to racial anxiety–in public, that is. Behind closed doors, however, he allegedly has no problem distorting the motivations of anti-government types.

Roger L. Simon at Pajamas Media:

That was May 2010, according to Walsh. Ironically, only a few days before, on April 29, 2010, your humble scribe wrote the following:

The real reason liberals accuse Tea Partiers of racism is that contemporary America-style liberalism is in rigor mortis. Liberals have nothing else to say or do. Accusations of racism are their last resort.

The European debt crisis — first Greece, then Portugal and now Spain (and Belgium, Ireland and Italy, evidently) — has shown the welfare state to be an unsustainable economic system. The US, UK and Japan, according to the same Financial Times report, are also on similar paths of impoverishment through entitlements.

Many of us have known this for a long time, just from simple math. Entitlements are in essence a Ponzi scheme. Now we have to face that and do something serious about it or our economy (the world economy) will fall apart.

Liberals, leftists or progressives — whatever they choose to call themselves — have a great deal of trouble accepting this. To do so they would have to question a host of positions they have not examined for years, if ever, not to mention have to engage in discussions that could threaten their livelihood and jeopardize their personal and family associations.

Thus the traditional wish to kill the messenger who brings the bad news: the Tea Partiers. And the easiest way to kill them — the most obvious and hoariest of methods – is to accuse them of racism.

When I wrote that, it was a month after Andrew Breitbart issued his as yet unanswered $100,000 challenge for evidence of racism at a Tea Party demonstration. So this is now already a relatively old debate. And the same arguments keep coming up again and again. The left keeps accusing the right of racism and the right keeps denying it, demanding evidence, which is never forthcoming. Not once. But that doesn’t stop the left. They continue the accusations — and the president, at least according to Walsh, believes them.

Bryan Preston at PJ Tatler:

There was, of course, no evidence at all that the Tea Parties had any racial motive whatsoever, and there still isn’t. None. They’re not motivated by race, but by policy. They consider Obama’s policies to be dangerous and destructive, and they’re right on both counts.

But this president, and the people he hires (think Eric “nation of cowards,” “my people” Holder, Van Jones, etc) can’t seem to abide opposition based on policy. Either that, or they’re using race cynically as a way to freeze the shallower thinkers around them and try to put legitimate critics out into the political outer darkness. Charges of racism do both quite nicely.

Tom Maguire:

I think (hope?!?) he was being polite to some fat-cat donors rather than describing his own convictions (and I am bitterly clinging to the notion that he has some convictions).  Huckabee going on about Obama’s Kenyan attitudes would be an example from the right of pandering to the nutters rather than challenging them.

Obviously, your mileage may vary.

THEN AGAIN:  The First Panderer is also the First Condescender, so he might very well believe the worst of these lowly Tea Partiers…

Patterico at Patterico’s Pontification:

Of course, it’s difficult to know what he said and how he said it from this report, as it is admittedly full of paraphrases, and lacks the clarifying aids of a recording or even direct quotes longer than two words. Depending on what he said, he may have been accurate — there clearly is a racial component to some of the opposition to Obama. The issue is how widespread he portrayed this aspect of his opposition to be. Because most of us really don’t care about the color of his skin. The color we’re worried about is red — all the red ink required to document the effects of his disastrous policies on our national balance sheet. (Look at it as a stimulus program: Obama will save or create thousands of jobs at the manufacturers of the red ink hues!)

Given how uncertain it is what he said, how’s about a journalist asks him at his next press conference? Let’s get some clarification on just how racist he thinks Tea Partiers really are.

Jim Hoft at Gateway Pundit:

What a horrible disappointment this man has been as president.
2012 cannot get here soon enough.

View From Your New Daily Beast

Andrew Sullivan:

The Dish is moving! In April, we’ll be joining The Daily Beast.

For me, it’s a strange mixture of excitement and sadness. Sadness because the Atlantic has been a very special home for me and all the interns and staffers who have worked at the Dish. The more than four years that I’ve worked here have been the most rewarding, exhilarating and challenging of my career. I cherish my colleagues, their support and debate, and will miss them deeply. But be assured, I’ll continue to link, debate and argue with the team here, and remain immensely grateful to editor James Bennet and chairman David Bradley for their never-faltering faith in what we’ve tried to do. The Dish is almost unrecognizable from what it was four years ago – and that experimentation, growth and creativity were all made possible by the Atlantic. I also have a profound attachment to the magazine’s history and legacy and integrity, which makes leaving hard. But I am very proud to have played a part in the Atlantic’s self-reinvention in this period and its first profitable year in memory. To have played any part in perpetuating this legacy in an environment that has been as tough on magazines as any in memory is an honor I will cherish to the end of my days.

But there are some opportunities you just can’t let pass by. The chance to be part of a whole new experiment in online and print journalism, in the Daily Beast and Newsweek adventure, is just too fascinating and exciting a challenge to pass up. And to work with media legends, Barry Diller and Tina Brown, and with the extraordinary businessmen Sidney Harman and Stephen Colvin, is the opportunity of a lifetime. Barry was the person who first introduced me to the Internet in the early 1990s, and we have remained friends ever since. Tina Brown needs no introduction, but to see her in action as we have discussed this new adventure over the past few weeks has been quite a revelation. The Daily Beast, in a mere two years, has made its mark on the web, with 6 million unique visitors last month, and an eight-fold jump in ad revenue over the last year. It will give the Dish a whole new audience and potential for growth and innovation. I’ll also be contributing columns and essays to Newsweek.

We remain committed to the same principles from the very beginning: in no-one’s ideological grip, in search of the truth through data and open, honest debate, in love with the new media’s variety and immediacy, committed to accountability and empiricism and resistant to any single category of subject or form. I have no idea where we’ll end up or what the future will bring. But that’s been true for a decade. What I do know is that the Dish is immensely lucky to have this new home, a new challenge, and these new partners.

Tina Brown at The Daily Beast:

I am thrilled to share the news that Andrew Sullivan is bringing his trailblazing journalism to The Daily Beast. Andrew almost single-handedly defined the political blog and has been refining it as a form of journalism in real time nearly every day for the past decade.

When he started his outpost on the Web in 2000, long before political blogging became fashionable, he outdid even his über-productive Fleet Street precursors. Andrew wrote constantly, and obsessively, about everything from politics to his pet beagles. The Daily Dish, as he called it, became the place that took on the big moral questions of the day. Andrew raged (rightly) against the Bush administration’s conduct of the Iraq War and the awful spectacle of torture. Lately, he has taken up arms against Obama’s budget proposal, proving that he plays no favorites. This fearlessness and doggedness makes him a natural soul mate of The Daily Beast. Scrolling down Andrew’s blog helps to give orientation in the world, to get the smartest possible fix on the news at any given moment. A rarity, he is willing to admit mistakes and change positions (sometimes radically) in the face of new evidence. Little wonder he has built one of the most devoted followings on the Web, with 1.2 million unique visitors a month, 82 percent of them bookmarked.

Tyler Cowen:

I have long thought TDB built an attractive-looking web site, but I have not followed the company per se, nor have I read the new Newsweek, nor do I have a good sense of what Tina Brown on the web might mean.  Sullivan was the first blogger I ever read and of course he still is very influential within the blogging field.  What do you all think of this move?  And is the market for blog acquisitions heating up again?

Alex Alvarez at Mediaite:

Sullivan joins Howard Kurtz as a high-profile name to be lured by the Daily Beast / Newsweek team, despite ongoing concerns by some in the media over whether the merger will bring in views or truly be successful in breathing new life into the struggling Newsweek brand.

Amid concerns over a certain other newly-merged blog’s left-wing bias, Brown writes in a Daily Beast post that Sullivan “plays no favorites” and is “willing to admit mistakes and change positions.”

Driftglass:

I never begrudge another writer making a living, so congratulations to Mr. Sullivan on movin’ on up to the East Side. Also too I have no beef with about 80% of what he writes about, and am in accord with quite a bit of it.

However…

…so long as Mr. Sullivan continues to traffic in the kind of perniciously self-absolving, self-serving revisionist and false-equivalency claptrap that he and so many of his fellow Conservative Expatriates so shamelessly flog in order to hang onto their gigs as Serious Public Persons, I will continue to whang away at the mendacity-based pieces of their infrastructure with a tiny, rubber hammer.

Meanwhile, if The Atlantic is looking to fill the newly-created hole in its batting order, perhaps instead of the Usual Suspects, they might consider one of Mr. Sullivan’s fellow Weblog Award winners.

Hehehe 🙂

Sometimes I just crack myself right up.

James Joyner:

This is big news because Sullivan is a big name but, really, it’s meaningless to everyone not being paid from the fruits of his labor. While the prestige outlets of the halcyon days of the last millennium still hold some cachet for those of us old enough to remember that era, they mean next to nothing on the Web. Most visitors come in from search engines, social media, and other content aggregators. The URL at which something is hosted is of little consequence, since most readers have little to no awareness of which site they’re on — or even whether it’s a blog or a more traditional outlet.

Indeed, Sullivan’s own career is testament to that.

From the standpoint of 1990, his career has been in a nosedive: from editor of the storied New Republic to a freelancer bogging on his own domain to blogging for Time, The Atlantic, and now some online startup that didn’t exist when Don Rumsfeld was Secretary of Defense. But, in reality, it has been onward and upward, with his fame, fortune, and influence growing along the way.

Indeed, the The Atlantic was mostly an ad network for Sullivan, whose blog accounted for something like a quarter of all their website traffic. The Beast will serve the same function, but I’m guessing they’ll be better at it, since they lack the overhead of a magazine and exist solely as a Web operation.

Bryan Preston at PJ Tatler:

Andrew Sullivan, Trig Truther without peer, goes to the Daily Beast. Among the questions this raises: Who gets custody of all the ghost bloggers?

DOMA Dies A Lawyered Death

 

US Department of Justice:

The Attorney General made the following statement today about the Department’s course of action in two lawsuits, Pedersen v. OPM and Windsor v. United States, challenging Section 3 of the Defense of Marriage Act (DOMA), which defines marriage for federal purposes as only between a man and a woman:

In the two years since this Administration took office, the Department of Justice has defended Section 3 of the Defense of Marriage Act on several occasions in federal court.   Each of those cases evaluating Section 3 was considered in jurisdictions in which binding circuit court precedents hold that laws singling out people based on sexual orientation, as DOMA does, are constitutional if there is a rational basis for their enactment.   While the President opposes DOMA and believes it should be repealed, the Department has defended it in court because we were able to advance reasonable arguments under that rational basis standard.

Section 3 of DOMA has now been challenged in the Second Circuit, however, which has no established or binding standard for how laws concerning sexual orientation should be treated.   In these cases, the Administration faces for the first time the question of whether laws regarding sexual orientation are subject to the more permissive standard of review or whether a more rigorous standard, under which laws targeting minority groups with a history of discrimination are viewed with suspicion by the courts, should apply.

After careful consideration, including a review of my recommendation, the President has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny.   The President has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional.   Given that conclusion, the President has instructed the Department not to defend the statute in such cases.   I fully concur with the President’s determination.

Marc Ambinder at The Atlantic:

The announcement by the Justice Department came just minutes before White House press secretary Jay Carney’s regular briefing. Carney took care to press upon reporters that the president’s personal view about DOMA — that it is unfair to gays and lesbians — is distinct from the decision. The announcement from the administration came because of a court-imposed deadline from the 2nd Circuit.

Carney also said that the U.S. government will still be a party to these cases to allow the courts to make a recommendation about constitutionality and to allow other interested parties, such as Congress, to defend the law if they wish.

“We recognize and respect that there are other points of view,” Carney said.

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

The president has won favor with the gay community recently by pushing for and winning repeal of the “don’t ask, don’t tell” policy for gays serving in the military, which the lame-duck Congress passed in December. At that time, Obama reiterated his support for repealing DOMA but did not take further steps.

Matt Welch at Reason:

The law is still in effect, but probably lost whatever chance it had of surviving a legal challenge. You can read Holder’s letter here.

Reason on DOMA here, including this piece from 1996 by Nick Gillespie. Excerpt:

It is a misguided attempt to define for all time an institution that is constantly, if slowly, evolving. Its supporters may think they can stop social evolution in its tracks and enforce a singular vision of the good society. But such people misunderstand the very nature of a free society and its dependence on choice and change. The Defense of Marriage Act may well have put off state recognition of same-sex marriage for the time being, but such laws can do precious little to keep things as they are. There can be little doubt that, ultimately, the government will be following IBM’s lead, even as IBM has followed its employees’.

William C. Duncan at The Corner:

There is something about the marriage issue that provokes an “any means necessary” approach from its proponents (among whom I believe we can count the president, notwithstanding campaign rhetoric to the contrary).

The president’s strategy, however distasteful, could be successful. In almost every successful same-sex-marriage case so far, the attorneys charged with defending the marriage laws either refused to do so (Iowa, Northern District of California) or made only pro forma defenses while conceding key points to the pro-redefinition side (Connecticut, California Supreme Court). Whether it is a good thing to have key social policies decided by lawyer inaction is an important question.

Presumably Congress can seek to intervene in the DOMA suits in order to defend the law. Maybe the federal courts need a public-defender program for statutes that have fallen out of favor with the elites in power.

Doug Mataconis:

It’s worth noting that when Judge Walker struck down California’s Proposition 8 last year, he used to lower “rational basis” test. Nonethless, Holder’s arguments in the letter are very similar to those Walker used in his opinion, and I won’t be surprised to see parts of this letter show up in appellatte briefs down the line as persuasive authority.

Personally, I think the entire act is unconstitutional, an opinion that is also shared by Bob Barr, who introduced the Act when he was a Member of Congress in the 1990s:

I’ve wrestled with this issue for the last several years and come to the conclusion that DOMA is not working out as planned. In testifying before Congress against a federal marriage amendment, and more recently while making my case to skeptical Libertarians as to why I was worthy of their support as their party’s presidential nominee, I have concluded that DOMA is neither meeting the principles of federalism it was supposed to, nor is its impact limited to federal law.

In effect, DOMA’s language reflects one-way federalism: It protects only those states that don’t want to accept a same-sex marriage granted by another state. Moreover, the heterosexual definition of marriage for purposes of federal laws — including, immigration, Social Security survivor rights and veteran’s benefits — has become a de facto club used to limit, if not thwart, the ability of a state to choose to recognize same-sex unions.

Even more so now than in 1996, I believe we need to reduce federal power over the lives of the citizenry and over the prerogatives of the states. It truly is time to get the federal government out of the marriage business. In law and policy, such decisions should be left to the people themselves.

In 2006, when then-Sen. Obama voted against the Federal Marriage Amendment, he said, “Decisions about marriage should be left to the states.” He was right then; and as I have come to realize, he is right now in concluding that DOMA has to go. If one truly believes in federalism and the primacy of state government over the federal, DOMA is simply incompatible with those notions.

The other problem with DOMA is that it essentially tells couples living in states where same-sex marriage, or civil unions, are legal that they can only live in states where the law is the same, or where their marriage will be recognized, which at this point constitutes less than 1/4 of the United States. It means a couple married in Iowa cannot move to any state in the American south without giving up all of their legal rights. This is exactly the kind of thing that the Full Faith And Credit Clause was designed to prevent. In fact, under current law, a marriage between a man and a woman that may not be legal in one state — such as a marriage between first cousins — will still be recognized as legal since it was legal under the laws of the state in which it took place. There is no rational reason why the individual liberty of gays and lesbians should be restricted in this manner.

Bryan Preston at PJ Tatler:

Does a president have the power to unilaterally declare laws passed by Congress and signed by his predecessors “unconstitutional?” This strikes me as setting an extremely dangerous precedent.

Kevin Drum:

This, by the way, is a good example why I’ve never joined in the general condemnation of conservatives for “reigniting the culture wars” whenever they introduce an abortion bill or somesuch. I’m on the opposite side of these conservative efforts, of course, but the fact is that liberals started the culture wars in the 60s and it’s something we should be proud of. So while I oppose the conservative side of the culture wars, I approve of the culture wars in general, and I applaud Obama and Holder for reigniting it last year when Congress repealed Don’t Ask Don’t Tell and for reigniting it in the case of DOMA today. Blacks, Hispanics, gays, women, the disabled and millions of others have benefited tremendously from the culture wars, and I’m happy to see it continue until there’s no more war to fight.