Facing a privacy-violation lawsuit, the Pentagon agreed Thursday to delay dismissal of a sailor who was accused of being gay based on information the Navy got from an online service.
The decision by the Navy and top aides to Defense Secretary William Cohen came in consultation with the Justice Department after lawyers for Senior Chief Petty Officer Timothy R. McVeigh sued the government and threatened to seek a temporary restraining order. Apparently convinced that the court would grant the restraining order delaying McVeigh’s discharge, the government agreed to postpone his dismissal from active duty until at least Wednesday.
The suit, filed in U.S. District Court in Washington, alleges the Navy violated McVeigh’s privacy and breached the Pentagon’s own “don’t ask, don’t tell” policy on gays in the military. The case has taken on significance beyond the military because it concerns the privacy guidelines governing the rising tide of personal information available through online networks.
“This case is an important test of federal privacy law,” said attorney David Sobel of the Washington-based Electronic Privacy Information Center, a group assisting McVeigh. “It will determine whether government agents can violate the law with impunity, or whether they will be held accountable for illegal conduct in cyberspace.”
The lawsuit, filed by McVeigh’s Washington attorney, Christopher Wolf, names Cohen and Navy Secretary John Dalton and claims the Navy unlawfully obtained information from McVeigh’s online service provider without a warrant or court order as required by the federal Electronic Communications Privacy Act of 1986. This improperly obtained evidence, the suit charges, was instrumental in the Navy’s decision to end McVeigh’s career.
Advocates for McVeigh, who is unrelated to the Oklahoma City bomber, say the Navy got McVeigh’s full name from a representative of America Online Inc. in apparent violation of the 1986 law and AOL’s own privacy rules, which prohibit disclosure of the authors of profile pages. AOL had posted in its network a profile page, which McVeigh later acknowledged was his, in which a “Tim” described himself as gay and detailed his interest in young men.
The military’s policy against homosexuality prohibits active investigation of a service member’s sexual preference. Service members face dismissal when they openly state they are gay.
“The Pentagon has done the right thing by agreeing to take a closer look at the way this case was investigated and to give McVeigh’s attorneys time to seek a stay of the discharge,” said Winnie Stachelberg, political director of the Human Rights Campaign. “This gives us reason to hope that Secretary of Defense William Cohen is making an effort to properly enforce the unfortunate ‘don’t ask, don’t tell’ policy banning gays in the military.”
His supporters want a longer pause to allow for a full investigation of the Navy’s handling of the case.
A resident of Mililani, Hawaii, McVeigh, 36, was the senior enlistee aboard the nuclear-powered attack submarine, USS Chicago, based at Pearl Harbor. Navy investigators learned of the AOL profile page from a Navy spouse serving as an onshore ombudsman for crew members of the Chicago.
The screen name listed on the profile page was “Boysrch.” Under hobbies, the profile page listed “driving, boy watching, collecting pictures of other young studs.” The page listed the author, “Tim,” as being in the military and based in Hawaii, but did not specify the service.
McVeigh, a highly decorated enlistee with 17 years in the Navy, later acknowledged the page was his but said that did not prove conclusively he is gay. He has declined to comment on his sexual orientation.
Navy records indicate the civilian investigator who telephoned AOL did not identify himself as a Navy representative.