Sessions: White House Misleading Public on DOD Documents, Kagan's Harvard Record

Statement

U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, today commented on the Department of Defense's release of documents concerning Elena Kagan's obstruction of military recruiting at Harvard Law School.

Relevant documents may be found after Sen. Sessions' statement.

"Since the day Ms. Kagan was nominated, President Obama's administration has attempted to not only defend Ms. Kagan's discriminatory treatment of the military, but to do so through misleading and even untrue statements. Indeed, Vice President Biden said Ms. Kagan's policy was "right,' and suggested she was merely following the law.

"The recent comment made by the White House after the release of relevant Department of Defense records is arguably the most troubling so far. These records not only prove that Ms. Kagan deliberately obstructed military activity during wartime, as Republicans have said, but reveal that her actions are even more concerning than previously known.

"Yet the White House had the temerity to declare that these records show that Ms. Kagan worked to "accommodate military recruiters,' to "assiduously follow the law,' and "ensure that Harvard law students could choose a career in military service.' The documents themselves show these statements are false and are part of a campaign to rewrite her history at Harvard.

"The documents show that Ms. Kagan reversed Harvard's policy, without basis or notice, in order to block the access of recruiters--not to accommodate them. They show that she defied federal law, forcing the Department of Defense use its legal authority to bring Harvard into compliance. They show that she did not ensure access to military careers, but that the Office of Career Services prevented the military from even posting a job opening. They show that she sanctioned a demeaning, second-class entry system for the military that the Department of Defense made clear was intolerable.

"The documents also show that Ms. Kagan continued to fight military recruitment even when her defiance of the law meant that Harvard could lose half a billion dollars--only to be overruled by Harvard's president.

"It is clear that the primary objective of the Law School policy to obstruct recruiters was not only to hinder recruiting on campus, but to punish and demean the military in an attempt to force a changing of "Don't Ask Don't Tell.' But that rule was not enacted by the military; it was enacted by Congress and Ms. Kagan's former boss, President Clinton.

"Ms. Kagan's actions and comments, combined with the fact that she had little to say about recruiting policy while working for President Clinton, unavoidably raise questions about possible hostility to the military as an institution.

"It would be one thing for the Obama Administration to acknowledge that Ms. Kagan acted wrongly but argue that it should not be a decisive factor in assessing her nomination. Instead, those acting in the name of the Commander-in-Chief have attempted to mislead the public and to defend Ms. Kagan's unjustifiable treatment of those who wear the uniform. I hope the President will correct this error and make clear to his administration that such treatment of the military is wrong. This remains a very serious issue in assessing her fitness to hold one of the highest offices in the United States."

BACKGROUND: To view documents received and made public from the Department of Defense, please click the links below. Noteworthy sections are highlighted.

Recruiter reports and DOD memos recording Kagan obstruction
This collection of documents includes an assessment from the Air Force recruiter that Harvard was engaged in deliberate gamesmanship while claiming to be "waiting for a decision" on whether to permit military recruiting. The internal assessment from the Army is bracingly frank: "The Army was stonewalled at Harvard."

CSO ban compared to chaining and locking front door
Contrary to claims that Kagan "facilitated" recruiting, the military's internal assessment of Harvard's practice was that it was "tantamount to chaining and locking the front door of the law school."

DOD conclusion that the Third Circuit ruling did not apply to Harvard
John Sullivan, Deputy General Counsel for Legal Counsel, opines that the Third Circuit ruling would not apply to Harvard, and Bill Carr, the Principal Deputy Under Secretary of Defense for Personnel and Readiness (who appears to be a career official) states that DOD policy will be to continue with Solomon Amendment enforcement procedures in the 47 states not covered by the Third Circuit.

Concerns over Kagan encouraging shouting down of military
In an effort to calm the hostility toward the military evident on some campuses, DOD leadership contemplated sending a conciliatory letter encouraging law schools to cooperate with the military, rather than encouraging students to disrupt military recruiting with loud protests--as Ms. Kagan apparently did.

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