Nathaniel Frank DOJ Used Me

The Department of Justice released a brief this week in Log Cabin Republicans v. Defense Secretary Robert Gates, a case brought by the gay GOP group against the "don't ask, don't tell" policy. The DOJ, through assistant attorney General Tony West, used 18-year-old testimony from former Joint Chiefs of Staff Colin Powell to argue their case, testimony that Powell has since retracted. But that's not the only questionable defense used by the DOJ, says Nathaniel Frank, a senior fellow at the Palm Center military think tank.

In a deposition for the Log Cabin case, Frank offered testimony about the issue of privacy as it related to DADT. Frank, the author of Unfriendly Fire: How the Gay Ban Undermines the Military and Weakens America, says his testimony was wildly mischaracterized by the DOJ in their brief.

Frank spoke specifically about the privacy rational -- the argument that letting gays serve openly would compromise troop privacy and therefore undercut cohesion. "I said the first part of that may be true," Frank says. "That some service members may have privacy concerns."

Frank says a DOJ lawyer asked him if those concerns were irrational, since, as Frank put it, "the legal standard for showing if something is unconstitutional is, among other things, whether Congress had a rational basis for enacting the law."

"What I said was that certainly some service members have privacy concerns," Frank says. "I'm not calling those privacy concerns irrational, what's irrational is using those concerns to exclude [out] gays in order to preserve cohesion." There is no evidence that privacy concerns adversely affect cohesion, Frank told the lawyer.

He argues that he was very clear about his point -- that the concerns were not irrational, but using them as an argument to deny a right, such as military service, is.

Frank says the nuance of his argument was lost in the brief, and had his testimony used against him -- in the brief the DOJ said Frank's testimony acknowledged the privacy rationale as a legitimate basis for DADT.

"We were very clear," Frank says. "They elided [the testimony]. I'm not sure if they did that on purpose or if they are generally confused about that. I mean, these are smart government lawyers who are assigned to know the ins and outs of this policy."

To add insult to injury, the brief cited Frank as a military "expert," with the word expert specifically put in quotations. "I found that very strange," Frank says. "I spoke to lawyers who said that is odd, indeed, and could easily be taken as an insult."