Want to defend DOMA? Then investigate Cheney.

Fine. If that is what Obama's DOJ is going to do, then that is great. We had the exact opposite problem under Bush's DOJ. The problem with his department was that they did not exercise sufficient independence from the Executive Branch and that they were simply a political arm of the White House. In the most extreme case, they fired lawyers for not pursuing political prosecutions that the White House wanted prosecuted. And who can forget the Saturday Night Massacre, where Richard Nixon fired the two top people at the Justice Department for refusing to fire the Watergate Special Prosecutor?

A lawyer is not a politician. Therefore, a lawyer has to represent their clients' best interests instead of what might be politically popular at the time. In the case of the DOJ, that client is the government. The Department of Justice has to be able to defend the laws, no matter how their lawyers may personally feel about DOMA or DADT. That is no different than the Nazi defendants as Nuremberg. They were entitled to effective representation no matter what their lawyers may have thought about their clients' monstrous war crimes. The same would go for the killer of George Tiller or the Oklahoma City bombers or Bin Laden. It is the job of the Department of Justice to defend the laws that the Congress passes, no matter how distasteful that might be.

It can be argued at this point that the arguments that the Holder DOJ made went too far. But that misses the point. A lawyer has to follow the strategy that will help their clients win their case. In other words, if Congress passes a law, it is the job of the DOJ to explain to the courts why said law is Constitutional. The alternative is signing statements or Deciding that we are going to interpret the law our way instead of following the law as it is. Until Congress passes a law repealing DADT and DOMA, or the Supreme Court rules them Unconstitutional, then the President is bound to follow the law as it is written, not how he wants it to be.

The proper channel to go through to get rid of DOMA and DADT is Congress -- we don't know when the next vacancy on the Supreme Court will occur. And that is where Obama falls short. Now, it has been argued that Obama is the Commander in Chief and that he could sweep away the latter law with the stroke of a pen. But that ignores the Constitutional provision allowing Congress to regulate the military. And DADT is found in the Uniform Code of Military Justice. Therefore, the President cannot simply sign an executive order doing away with laws that he personally finds distasteful. That said, he can lead on this issue. And that means working with key allies in the GLBT Community and in Congress to build support for this issue. And that means working to get gay marriage legislation passed in more states. And that means working to collect peoples' stories about how they are affected by these issues and why these laws should be repealed. The problem is that Obama is not doing any of that. Hand-written notes and whispering behind the scenes with his generals do not qualify as working to get rid of DADT.

Now, it has been argued at this point that there are other priorities that are more important. But that is simply a cop-out. We have been told that we need to wait until 2012. But the problem with that is that 2012 is an election year and it might be too risky to tackle these issues in an election year. In 2014, it might be kicked down the road because we are dealing with immigration. In 2016, the excuse might be that we are dealing with the withdrawal from Afghanistan. There is always an excuse to kick the can down the road.

The question, therefore, is how far Holder is going to go in his zeal to uphold the laws of this land as they currently stand (not how we want them to be). If he is going to do so, then it is therefore only fair that he investigate Cheney and his henchmen for any possible war crimes that they may have committed in the course of their duties. The same goes with the torture pictures that Obama was supposedly going to release -- it is only fair that Holder's Department of Justice look at those pictures and investigate to see what violations of the Uniform Code of Military Justice may have occurred.

It can be argued at this point that such prosecutions would inevitably be politicized. But the problem with that logic is that our leaders would therefore be able to act with impunity because they would know that their successors would want to wipe the slate clean and start over. The point is that nobody should be above the law -- if the Holder DOJ is going to fight zealously to uphold a mean-spirited and disgusting law, then it is only fair that they investigate to see what war crimes were broken by the Bush administration. Under the Constitution, international treaties that we are a signatory to are just as binding as any other laws that are legally passed.

And if Holder is going to investigate Cheney, he has to do so whether it is politically expedient for his boss or not. As I stated above, arguing that we should not follow the Constitution is not a matter of political expedience; it is something that has to be done whether it is expedient or not. The same goes with Holder and Cheney. The excuse for pardoning Richard Nixon was that we needed to move on. But this is where a strong AG will step in and decide that this is not a matter of political expedience. If we are only going to enforce the law when it is expedient for us to do so, then maybe the police should not respond to any calls if they do not absolutely have to. Maybe the prosecutor of the Tiller case should decide that this is an emotional issue and that it would be best for all of us to forgive and move on. The question is much more fundamental than political calculation. The question is, does the law mean anything or not? And if not, then it is only a matter of time before this country goes the way of the Romans.

Now, let's return to Thorwald's premise that Obama is somehow keeping his promise to uphold the law. My answer is, it depends. If Holder refuses to even bother to investigate Cheney to see whether any laws have been broken or whether any war crimes have been committed or not, then I would argue that Holder is only selectively enforcing the laws. Holder inherited the laws on DOMA and DADT. It is his job to uphold them. Holder also inherited the Geneva Conventions that prohibit torture. Holder and his DOJ have an obligation to defend those laws as well. Holder also has an obligation to defend our laws against cruel and unusual punishment as well as detentions without trial or charge.