McVeigh v. Cohen

McVeigh v. Cohen was a 1998 lawsuit in U.S. federal court in which a member of the U.S. Armed Forces challenged the military's application of its "Don't ask, don't tell" (DADT) policy, which established guidelines for service by gays and lesbians in the U.S. military. The U.S. Navy sought to discharge Timothy R. McVeigh for declaring his homosexuality. McVeigh's suit denied he had made such a declaration and charged the Navy with failure to adhere to its own DADT policy and, in the course of investigating him, with violating the Electronic Communications Privacy Act. McVeigh won a preliminary injunction and the Navy, without acknowledging culpability, allowed him to retire with an honorable discharge. The New York Times called it "a victory for gay rights, with implications for the millions of people who use computer on-line services".[1]

Not to be confused with United States vs. Timothy McVeigh.

Background

Timothy R. McVeigh entered the Navy at the age of 18 around 1980 and earned four Good Conduct Medals and the Navy Commendation Medal.[2] His performance review circa the end of 1997 described him as "an outstanding role model" and the "embodiment of Navy core values".[3]

In September 1997, while based in Honolulu and serving on the nuclear submarine USS Chicago (SSN-721),[2] he sent email messages from his America Online (AOL) account that used the screen name "boysrch" and the signature "Tim" when communicating with a civilian working as a volunteer on a Navy-sponsored charity. The AOL user directory identified the marital status of the owner of that AOL account as "gay". The information reached naval authorities. A Navy paralegal, misrepresenting himself, obtained confirmation from AOL by telephone that the account belonged to McVeigh. The Navy initiated an administrative discharge on the basis of his "homosexual conduct, as evidenced by your statement that you are homosexual." In November, a board held a hearing at which McVeigh acknowledged he had authored the email messages using the boysrch account and presented evidence of relationships with women. They concluded that by a preponderance of the evidence McVeigh had engaged in "homosexual conduct".

With his discharge scheduled for January 16, 1998, Senior Chief Petty Officer McVeigh, represented by Proskauer Rose, filed suit in U.S. District Court for the District of Columbia on January 15 seeking a preliminary injunction to bar his discharge. His suit named Secretary of Defense William S. Cohen as principal defendant. At stake in addition to his job and income were the pension, health and life insurance, and other benefits due to someone separating honorably from the Navy when he expected to retire after 20 years of service. The Navy, after first resisting, acceded to the court's request to delay the discharge until January 27.

Privacy advocates thought the case important. David L. Sobel of the Electronic Privacy Information Center said: "It is probably the most clear-cut example we have of a violation of this statute on the part of the Government. If the Navy prevails, it will basically mean there is no meaningful protection against government intrusion in cyberspace."[3] An AOL spokesman said: "We have clear policies in place that our member service representatives don't give out member information. What is disturbing to us is that the Navy may have circumvented established channels that we have for working with law enforcement in an attempt to get information about one of our members."[3] A representative of the Servicemembers Legal Defense Network, an advocacy group for gay and lesbian military personnel, said: "Timothy McVeigh didn't work hard to get on anybody's radar screen. The only information that the Navy has is this AOL profile, and I think there's a strong argument that this is the sort of case that demands discretion from the military."[3]

Frank Rich thought McVeigh could be[2]

the man who finally brings home the absurdity and bigotry of Don't ask, don't tell. Mr. McVeigh is as clear-cut a victim of a witch hunt as could be imagined, and that witch hunt could expand exponentially if the military wants to add on-line fishing to its invasion of service members' privacy. Multitudes of military personnel identify themselves as gay on the Internet, rank and base often included.

He contrasted the different treatment the U.S. military afforded two men named Timothy McVeigh. For years the U.S. Army ignored the racism and anti-government radicalism of Timothy J. McVeigh, who went on to perpetrate the Oklahoma City bombing in 1995. The U.S. Navy, by contrast "torments the second, exemplary Timothy McVeigh for the crime of having a private life that should be nobody's business but his own".[2]

On the morning of January 21, before a hearing in the case, AOL acknowledged its customer service representative should not have released information about McVeigh. It also said the Navy had violated federal law and reported it had lodged protests with the Navy and Department of Defense.[4][5] McVeigh's attorney also brought to court a statement from sociologist Charles Moskos of Northwestern University, architect of the DADT policy, who supported McVeigh and called the Navy's investigation of his sexual orientation "unwarranted".[6] His statement said: "In simple terms, Senior Chief McVeigh did not 'tell' in a manner contemplated under the policy–he sent an anonymous e-mail which did not list his surname or his Navy connection".[4]

Ruling

On January 26, 1998, U.S. District Court Judge Stanley Sporkin granted McVeigh a preliminary injunction barring the Navy from discharging him. He wrote that the central issue was whether the Navy complied with its own DADT policy and, by extension, "whether there is really a place for gay officers in the military under the new policy". He sometimes referred to DADT by its longer name–"Don't Ask, Don't Tell, Don't Pursue"–as he questioned the Navy's pursuit of information about McVeigh. He wrote:[7]

The facts ... clearly demonstrate that the Plaintiff did not openly express his homosexuality in a way that compromised this "Don't Ask, Don't Tell" policy. Suggestions of sexual orientation in a private, anonymous email account did not give the Navy a sufficient reason to investigate to determine whether to commence discharge proceedings. In its actions, the Navy violated its own regulations.

He quoted DADT guidelines that specified that "creditable information" from a "reliable person" about sexual orientation was required to prompt an investigation. Instead, he wrote:

When the Navy affirmatively took steps to confirm the identity of the email respondent, it violated the very essence of "Don't Ask, Don't Pursue" by launching a search and destroy mission.

He also called it a "search and 'outing' mission". He noted that "cyberspace ... invites fantasy and affords anonymity", an environment at odds with the regulatory requirement that the subject of an investigation show "a likelihood actually to carry out homosexual acts".

He also found that the Navy's investigation had "likely violated" the Electronic Communications Privacy Act of 1986. Though the government had argued that the statute penalized the party that disclosed information, in this case AOL, and not the party requesting information, he wrote:

[I]t is elementary that information obtained improperly can be suppressed where an individual's rights have been violated. In these days of "big brother", where through technology and otherwise the privacy interests of individuals from all walks of life are being ignored or marginalized, it is imperative that statutes explicitly protecting these rights be strictly observed.

To the government's argument that McVeigh had acknowledged owning the AOL account he wrote:

That the Plaintiff may have made incriminating statements at the subsequent administrative hearing does not bootstrap the Navy out of its legal dilemma of not only violating its own policy, but also a federal statute in its attempt to charge the Plaintiff with homosexuality.

He concluded with his view of the significance of the DADT policy:

The "Don't Ask, Don't Tell, Don't Pursue" policy was clearly aimed at accommodating gay men and women in the military. In effect, it was intended to bring our nation's armed forces in line with the rest of society, which finds discrimination of virtually every form intolerable. It is self-evident that a person's sexual orientation does not affect that individual's performance in the workplace. At this point in history, our society should not be deprived of the many accomplishments provided by people who happen to be gay. The "Don't Ask, Don't Tell, Don't Pursue" policy was a bow to society's growing recognition of this fact. For the policy to be effective, it has to be implemented in a sensitive, balanced manner. Under the policy as it stands today, gay service members must be permitted to serve their country honorably, so long as they are discrete in pursuing their personal lives.

He called it a "vestige of discrimination and misconception of gay men and women".

Clarence Page, writing in the Chicago Tribune, said that the case was "a defining test of the right to privacy in cyberspace and in the military. The military flunked. So did a major on-line service."[8]

Settlement

The parties began negotiating McVeigh's retirement with full benefits. A Defense Department official said: "I think many of us would like to see this case go away."[9] But McVeigh's attorney complained that in the days after Sporkin's ruling the Navy had assigned him to "supervising people moving trash out of a room that's being renovated". In March, Judge Sporkin was asked to consider if the Navy had violated of his order not to take any "adverse action" against him when McVeigh contended the Navy had not provided him with an assignment comparable to his grade and experience.[10] As negotiations continued, Defense Secretary Cohen supported the Navy's position in the case and warned Attorney General Janet Reno that any settlement needed to make clear the administration's full support for DADT.[11]

Arthur Leonard of New York Law School commented:[12]

Every one of these cases that comes to the public's attention reinforces the absurdity of the policy, and that can only help us in the long run. It's just a shame some people are turned into martyrs, but it looks as if in this case McVeigh won't be a martyr.

McVeigh and the Navy agreed to a settlement in June 1998. The Navy did not admit any wrongdoing and agreed not to pursue an appeal. McVeigh was allowed to retire with the rank of Master Chief Petty Officer and full benefits. He commented: 'I'm happy that this case has been resolved on my terms. I think that all sailors can take comfort from this. I hope it sends a message that the rules and regulations that are in place need to be followed by the military."[1] His attorney said: "It is the first time, as far as I'm aware, that the Navy has let stand a court decision that it has broken the law in this area. Obviously it has a precedent that can be relied on in the future.[1] The Navy also paid McVeigh's $90,000 in legal expenses.[13]

In a separate settlement reached months earlier but not announced until McVeigh settled with the Navy, AOL apologized and agreed to pay McVeigh damages for having improperly disclosed his identity. Outside the settlement, AOL announced plans to provide all of its 5,000 customer-service representatives with "scenario training" to protect their clients' privacy, and it posted a new version of its privacy policy online written to be "understandable to us mere mortals".[1][14]

McVeigh retired from the Navy on July 14, 1998. He had been promoted to master chief petty officer in May. He said he had been treated well by other servicemembers "[w]ith an exception of a few senior officers in the submarine squadron". He said: "I think the Navy has been fairly pig-headed. I just got set up and this thing just getting passed up the line and no one stopped to look at it."[13]

References
  1. Shenon, Philip (June 12, 1998). "Sailor Victorious in Gay Case of On-Line Privacy". New York Times. Retrieved September 21, 2014.
  2. Rich, Frank (January 17, 1998). "The 2 Tim McVeighs". New York Times. Retrieved September 21, 2014.
  3. Shenon, Philip (January 17, 1998). "Navy Case Combines Gay Rights and On-Line Privacy". New York Times. Retrieved September 21, 2014.
  4. Napoli, Lisa (January 22, 1998). "AOL Admits Error in Sailor's Case". New York Times. Retrieved September 21, 2014.
  5. Kornblum, Janet (January 21, 1998). "AOL admits to privacy lapse". Cnet. Retrieved September 21, 2014.
  6. Kakesako, Gregg K. (January 1998). "Navy accused violating policy". Honolulu Star Bulletin. Retrieved September 21, 2014.
  7. Sporkin, Stanley (January 26, 1998). "Memorandum Opinion, Timothy R. McVeigh v. William S. Cohen, et al." (PDF). U.S. District Court for the District of Columbia. Retrieved September 21, 2014.
  8. Page, Clarence (January 29, 1998). "Internet And Military Clash Was Inevitable". Florida Sun Sentinel. Retrieved September 21, 2014.
  9. Shenon, Philip (January 30, 1998). "Navy May Resolve Gay Case by Letting Sailor Retire". New York Times. Retrieved September 21, 2014.
  10. Sporkin, Stanley. "Memorandum Opinion, March 11, 1998". Justia. Retrieved September 21, 2014.
  11. Bull, Chris (May 26, 1998). "Cohen Under Fire". The Advocate. Retrieved September 21, 2014.
  12. Gallagher, John (March 3, 1998). "Don't Ask, Don't Log On". The Advocate. Retrieved September 21, 2014.
  13. Kakesako, Gregg K. (July 14, 1998). "McVeigh leaves Navy, Hawaii today". Honolulu Star Bulletin. Retrieved September 21, 2014.
  14. "Gay Sailor Accepts Early Retirement Offer". Greensboro News Record. June 13, 1998. pp. A8.
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