FRIDAY, JUNE 4, 2010

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Washington FORUM

‘Don’t ask, don’t tell’: Farewell to my father’s idea

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By Peter Moskos

was the first critic of “don’t ask, don’t tell.” It was 1993, and I was home on break from college. My fa-

ther, Charles Moskos, and I were watch- ing TV and drinking ouzo. Bill Clinton’s election promise to end the ban on gays in the military had turned into a political debacle. My fa- ther, a conservative Democrat who was considered by some to be the foremost expert of his generation on military per- sonnel issues, told me he had a brilliant idea to save the president: “Don’t ask, don’t tell. Don’t seek, don’t flaunt!” My father, a proud draftee, came up with the concept and coined the phrase. He had lots of crazy ideas. But this one, I declared, was “the stupidest idea you’ve ever come up with.” A few months later, despite being at-

tacked by the left and the right, “don’t ask, don’t tell” was the law of the land. The left hated that it banned military service by out gay people, the right hat- ed that it didn’t. Ever the pragmatic cen- trist, my father gloated, “If both ex- tremes are pissed off, you’re probably doing something right.” Most impor- tant to my father was that the law was a compromise the military could support. Today, 17 years later, I am convinced

that my late father would support the repeal of “don’t ask, don’t tell.” But to understand why he would embrace this change, one needs to understand the nuances of his support for the law in the first place — and his love for the mili- tary and the enlisted man in particular. Certainly a small part of my father’s

support for “don’t ask, don’t tell” was a simple but real pride in having contrib- uted to the English language. After all,

jeebies. My father was no homophobe; he had nothing against gay people. He didn’t care if gay men hit on him but no- ticed how rarely it happened (“they don’t like fat ugly guys like me any- way”). He just didn’t want to get naked in front of people he knew were gay. He always shifted the argument away from sexual orientation and toward issues of privacy.

He loved the military and soldiers. Here’s why he would now favor ending the policy he created and defended.

how many of us have added to our mother tongue? But in defending the law, my father had one hard-to-refute point: Civilized societies do not force people to get na- ked in front of those who might be sex- ually attracted to them. Since we do not force women to shower in front of men — not even in the military — why should we force men to shower with openly gay men? Or course Papa had a better way to

phrase it: “Until Hillary Clinton agrees to shower with me, I shouldn’t be forced to shower with an openly gay man.” And he had a point, up to a point. Less persuasive was that the thought of gay sex simply gave my father the heebie-

Miranda: Not so black and white

by Philip Mudd

his parents will say and confused about his future. His motiva- tions are complex: He folds quickly after arrest, revealing every- thing he knows about a plot because he was never fully commit- ted to a cause. Or he remains silent, requesting a lawyer and re- fusing to reveal whether another bomber is on the loose because his ideological roots run deep. Or he’s somewhere in between, of- fering some truths but also spinning tales, challenging his in- terrogator to separate fact from fiction and to steer the dialogue — or, more precisely, his unique psychology — toward a slowly evolving relationship that reveals plots and players. The interviewer has to make on-the-spot assessments about truth vs. fiction, about whether a steely glare will change to a ca- gey conversation an hour or a day later. That interviewer uses training, years or even decades of experience and a nuanced as- sessment of the human being across the table to determine which tools might work best. Build rapport? Ask the family to help? Commiserate with a kid who made a mistake or fell in with a bad group? Meanwhile, in Washington, senior government officials re- ceive briefings on what the detainee is saying, couple the infor- mation with other intelligence that draws a picture of a plot and determine next steps. Is the subject providing intelligence, for example, that matches what is being heard elsewhere? Is it spe- cific enough to identify other plotters or peripheral players? Our goals in these situations are to protect lives and guard American civil liberties. These goals are not at odds. The law al- lows us to ask a detainee questions that can save lives: Is there a broader plot afoot, more conspirators who worked with the in- terviewee? Is there a second plot? Who are the conspirators in the United States? Who are the conspirators overseas? We can talk to him for days, if he wants to talk, by asking him to waive his rights. This is not theoretical; we’ve done it, with great suc- cess, under existing law. And if he doesn’t want to talk, are we un- der the impression that, after he’s spent years demonizing his captors, a short period of rapport-building will flip him? Terrorists have many concerns beyond whether what they say is admissible in court. Some are petrified. Others feel justified in their actions; they will never be dissuaded from their cause. Their motives for talking (or not) are not driven by Miranda. And the Supreme Court’s decision this week ensures that if the inter- viewee doesn’t respond to a Miranda warning but wants to talk a few hours later, debriefing experts have the legal latitude to talk to him. Trained FBI interviewers, too, have concerns outside Miranda: how to build rapport. Interviewers have said that Miranda was not a bar to the intelligence-gathering they were responsible for during detainee debriefings. Washington officials make decisions all the time on whether a

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detainee is providing valuable intelligence. I sat at hundreds of briefing tables for nine years after Sept. 11, 2001, and I can’t re- member a time when Miranda impeded a decision onwhether to pursue an intelligence interview. Conversely, Miranda can be a tool that aids the acquisition of

intelligence. Mirandizing a young detainee might prove to ner- vous parents — say, from countries with fearsome security ser- vices — that the rule of law applies in the United States and that there is incentive for their child to speak. In cultures with tight family structures, those parents could be the deciding factor in whether a young detainee talks. Yet what are we debating? We in Washington are making the

Miranda issue a black-and-white decision. Read Miranda to a de- tainee and you are “soft,” sacrificing intelligence that could save a child for the sake of reminding a detainee of his rights. Collect in- telligence without Miranda and you are violating one of the ten- ets of our democracy, the right of an individual to seek counsel. Why is it that so many in Washington insist on making problems into absolutes, right and wrong — without stepping back and asking more clearly what we want? My guess is that we want both: the chance to understand a plot and the plotters, and the honor, as a culture, of respecting a human’s rights in a demo- cratic society. In real-world situations, we already have both. Some have written on this page about legal issues we need to work through — how quickly, for example, a suspect must ap- pear before a magistrate; whether we might need a day or two to talk to a subject before such an appearance. These questions merit debate. But they are not the game-changers that Miranda ostensibly has become. The issue of Miranda may offer great political theater and

great dramatic theater on TV, but theater isn’t real life. Somehow in the wonderland of Washington, we have transformed what should be a conversation on a national security issue into a politi- cized prize fight, replete with the suggestion that whoever’s on the other side is against the national interest. I ain’t buying it.

The writer, a senior research fellow at the New America Foundation, served as deputy director of the CIA’s Counterterrorist Center from 2003 to 2005 and as a senior intelligence adviser to the FBI from 2009 to 2010.

terrorism suspect walks into a room. Say he is steely, refus- ing to make eye contact and declining to answer questions. Or he is in tears (which is not uncommon), fearful of what

Perhaps it was generational, but my

father believed in something that seems quaintly old-fashioned today: sexual modesty. He didn’t like being confront- ed with anybody’s sexuality, gay or straight. If confronted about his own sexuality, my father liked to quip, “At my age, I would be happy to have any sex- ual orientation!” The only thing sexually my father was open about was his prudishness. And he practiced what he preached. When I was young, my father told me I should learn about sex in the alley, hanging out with my friends. “And I don’t want to know about it,” he would say with a dismissive wag of the finger. My mom quickly became the go-to per-

son for such matters. Before my father died in 2008, I

asked him to reverse his support for the law. “Be on the right side of history,” I said. I also appealed to the newshound in him, “Just think of all the press you’ll get!” He did like the idea of one last hur- rah, but he would not turn his back on the military. His continued commit- ment to “don’t ask, don’t tell” was exact- ly as deep as the military’s continued support.

And now the brass is shifting. A few months ago, Gen. Colin Powell, one of the law’s original supporters, reversed his position and came out against “don’t ask, don’t tell.” Powell would have likely asked for my father’s support. And my father wouldn’t say no to Gen. Powell. Ever the contrarian, my father would

have savored the irony (and media at- tention) of renouncing the law he de- fended for many years. Next, he would have flown to a war zone to help the military figure out the best way to have openly gay men and women serve. So, for my father’s memory, here’s hoping the phrase “don’t ask, don’t tell” survives long after the law fades into history.

The writer is a professor at John Jay College of Criminal Justice and the author of “Cop in the Hood.”

Primaries and patronage, the Chicago way

By William A. Burck and David B. Rivkin Jr.

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ithout knowing all of the facts and partic- ularly whether firm promises of govern- ment jobs were made, it cannot be ascer-

tained at the moment whether dealings among Oba- ma White House officials, former president Bill Clinton, Pennsylvania Rep. Joe Sestak and former Colorado House speaker Andrew Romanoff broke the law. What is clear, however, is that White House Counsel Robert Bauer has engaged in an unprec- edented “investigation” of the Sestak affair, culmi- nating in the issuance of his May 28 report. This effort was, at best, misguided. At worst, it im- peded any legitimate Justice Department investiga- tion, harmed the cause of justice and reinforced public disgust with Washington. The White House counsel is the president’s prin- cipal legal adviser, but the role is not independent of the president or the White House. Unlike the attor- ney general, who is the nation’s top law enforcement officer, the White House counsel is not confirmed by the Senate and does not supervise career lawyers charged with impartially investigating and prose- cuting possible crimes on behalf of the people of the United States. Executive privilege, which restricts public disclosure of certain communications be- tween the president and his staff, is at its strongest for advice given to the president by his counsel. To be sure, the counsel sometimes has to handle

LARRY DOWNING/REUTERS

President Obama speaks at Cairo University last June 4.

Cairo’s unmet promise

By Michele Dunne and Robert Kagan

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hen President Obama called for a “new beginning”in U.S. relations with the Muslim world a year ago, he

picked Cairo as the setting for his speech. It was a provocative choice, the capital of a close ally of the United States but also of the three- decades-old autocracy of Hosni Mubarak. When Obama declared his commitment to

“governments that reflect the will of the peo- ple” and said that leaders “must maintain your power through consent, not coercion,” Egyp- tians thought they heard a not-so-subtle refer- ence to their aging leader. One enthusiastic Egyptian shouted, “Barack Obama, we love you!” — the only such interjection during the address. A year later, Egyptians are scratching their heads about why Obama came to Cairo. In meetings in Cairo this week, Egyptian civil so- ciety and political activists across the spectrum voiced their disappointment, asking, “I know they’re busy, but can’t the Obama administra- tion spare any time at all for what is going on inside Egypt?” and saying resignedly of the president, “He seems like a nice guy, but I guess he’s just not going to do anything for us.” The disappointment is understandable. As

Egypt heads into controversial parliamentary elections in fall 2010 and a presidential elec- tion in 2011, the Obama administration has been tone-deaf, intent on continuing to im- prove relations with the increasingly brittle and unpopular Mubarak regime. It has cut de- mocracy assistance spending in Egypt by half, agreed to forbid assistance from the U.S. Agen- cy for International Development to groups that lack the government’s stamp of approval, and is discussing a future “endowment” that would commit the United States to years of as- sistance with diminished congressional over- sight. When administration officials have pri- vately raised questions about democracy or hu- man rights with the Egyptian government, their carefully calibrated “quiet diplomacy” has been dismissed or ignored. Obama himself po- litely asked Mubarak during an August 2009 Oval Office meeting to fulfill his 2005 pledge to lift the state of emergency under which Egyp- tians have been repressed since 1981. Mubarak brushed him off. Last month, Mubarak re- newed the state of emergency for another two years, conveniently the period during which parliamentary and presidential elections will occur. The Obama administration called it “regrettable.” Meanwhile, Mubarak is in ill health and may

not even make it to the next presidential elec- tion. His regime has systematically excluded or discredited new leaders who enjoy any public support, leaving the field of potential suc- cessors depressingly impoverished. One would think that under the circumstances both Egyp- tians and the U.S. government would be work- ing to put in place an open political process so that any new leader could win the support of the people and thus ensure order in this impor-

tant nation. But the Egyptian government is paralyzed by the aging Mubarak’s refusal to look beyond his own rule. And the Obama ad- ministration, in pursuit of an illusory stability, stands mute and passive as the predictable train wreck draws nearer. This administration prides itself on its pro- gressive approach to this post-Cold War world, but it is repeating the mistake that Cold War- era administrations made when they support- ed right-wing dictatorships — right up until the point when they were toppled by radical forces.

Obama’s Cairo speech had the admirable

goal of improving relations with the Muslim world, but the manner in which the adminis- tration has pursued this goal has been flawed from the beginning. It has focused almost ex- clusively on building bridges with leaders and governments. Yet in Egypt, and in Iran, a gulf has opened between the government and the citizenry. Obama has strengthened ties with the aging Mubarak while ignoring the con- cerns of Egypt’s increasingly restive popula- tion. “What about us?” one prominent democ- racy activist asked. “Do we count for anything in this U.S.-Egypt relationship?” When rebels ousted the corrupt government

in Kyrgyzstan in April, they noted angrily that the United States had never stood up for their rights in the face of rigged elections and hu- man rights abuses, placing a clear priority on strategic cooperation with the government. Watch out. If the Obama administration does not figure out how to make clear that it sup- ports the political and human rights of Egyp- tian citizens, while cooperating with the Egyp- tian government on diplomatic and security af- fairs, people will be saying that about the United States in Cairo one of these days — and maybe sooner than we expect. There is still time to turn around this failing

policy. Vice President Biden visits Egypt next week.There are, as always, numerous crises on the agenda. But if the administration wants to try to head off the next crisis, in Egypt, then Bi- den should use the opportunity to have a frank talk with Mubarak and other senior officials. In private, he can explain why it is so important, for both Egypt and the United States, that Mu- barak take immediate steps to open the politi- cal process in this difficult period of transition. In public, Biden needs to make clear that the United States stands for free, fair and competi- tive elections — for Egyptians, just as for every- one else.

Given the sorry history of the United States

supporting the oppressors rather than the op- pressed in that part of the world, such a com- mitment would be the kind of “new beginning” the Egyptian people seek.

The writers, senior associates at the Carnegie Endowment for International Peace, are members of the nonpartisan Working Group on Egypt, a consortium of policy experts from Carnegie, the Council on Foreign Relations, Human Rights Watch, the Center for American Progress, the Washington Institute for Near East Policy, the Foreign Policy Initiative and Freedom House.

allegations of wrongdoing by White House staff members. But when the allegations concern pur- portedly criminal misconduct — as was alleged in recent years in the Valerie Plame affair, the dismiss- al of U.S. attorneys and the destruction of CIA “in- terrogation tapes” — the procedures that the coun- sel must follow are quite strict and the scope of any investigation is narrow. The counsel would be lim- ited to conducting a preliminary inquiry to estab- lish whether there is some factual basis for the alle- gations. The lawyers would follow standard pro- cedure for preserving the integrity of the investigation, including instructing staff members to preserve all relevant documents, not to discuss the matter with each other and to take all other nec- essary steps to preserve evidence. If there is some basis to believe a crime was committed, even if the evidence may not be definitive or even particularly convincing, the Justice Department would step in for further investigation. Given that the U.S. Code explicitly proscribes “promises [of] any employment, position, [or] ap- pointment . . . to any person as consideration, favor or reward for,” among other things, staying out of any political primary, this standard has been amply met. Indeed, Bauer’s own conclusions establish that there is a factual basis to believe Sestak may have been offered a position as an illegal quid pro quo. Nonetheless, Bauer clearly does not believe that anyone violated the law. And he may well be right. Perhaps the position was offered unconditionally. Perhaps Sestak misunderstood. Perhaps even if it was a quid pro quo, the offer does not satisfy the law’s requirements for criminal liability. But in the face of doubt on these questions, it is not the coun- sel’s role to make such determinations, particularly when he is opining on the conduct of Chief of Staff Rahm Emanuel, to whom he reports, and a negative conclusion could damage the president for whom he works. This conflict of interest makes Bauer’s numerous lapses in normal investigatory procedure all the more troubling. His report is silent concerning simi- lar job-related discussions last year between Deputy White House Chief of Staff Jim Messina and Roma- noff, who is mounting a primary challenge against Democratic Sen. Michael Bennet in Colorado. Any credible investigation would have inevitably fo- cused on whether the alleged job-for-withdrawal scenario was exclusive to Sestak or part of a broader pattern of conduct. Meanwhile, according to various news accounts, witnesses were permitted to consult with each other directly or through intermediaries. This is a major process error that would horrify any experienced Justice Department prosecutor, because it allows witnesses to influence each other’s recollections or even “get their stories straight.” Once this happens, it is very difficult to discern what actually happened. Even releasing Bauer’s report taints the investiga- tion by telling witnesses the “official” narrative. E- mails or other documents, which cannot easily be altered to fit the story, may now be the only reliable way to uncover what everyone said and intended. The claims that past administrations have done this, too, or that further inquiries would only dis- tract us from tackling the nation’s pressing prob- lems are risible. The whole matter is about, at the front end, senior White House officials engaging in unsavory political horse trading and leveraging in the process, explicitly or implicitly, the awesome power of the federal government to reward or pun- ish. Separating governance from politics is a key im- perative in our body politic and a principle empha- sized in ethics briefings given to all government em- ployees, from the lowly GS-4 to the president’s chief of staff. Even more important, at the back end, l’affaire Sestak is about senior White House officials, who should be held to the highest ethical standard, act- ing irresponsibly. This is no minor matter, since nothing reveals more about the soul of any adminis- tration than how it deals with suspected legal lapses by its own. At a time when the public’s respect for all branches of the federal government is miserably low, Bauer’s report cannot be the end of the matter. The only credible way forward — not the Chicago way — is to have the Justice Department investigate both the original Sestak-related White House dis- cussions and the exchanges with Romanoff and any other similar dealings — as well as the way in which the White House has handled the matter since the story broke.

William A. Burck served in the Justice Department and was a deputy White House counsel under President George W. Bush. David B. Rivkin Jr. served in the Justice Department and the White House Counsel’s Office under presidents Ronald Reagan and George H.W. Bush.

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