LOOKING FOR A FEW GOOD....ANSWERS, by
John Aravosis
According to today's New York Times, the Navy released a statement
yesterday defending its handling of the Timothy McVeigh investigation --
claiming that it had "enough evidence to identify Chief Petty Officer
McVeigh as homosexual 'without further information' from America Online."
Over the last two weeks, in response to repeated charges that the Navy
broke federal espionage law during its investigation of Senior Chief
McVeigh, the Navy keeps saying they had "enough evidence" to get McVeigh
even without AOL's confidential subscriber information. This spurious
argument raises a number of troubling questions.
1) Is it the Navy's policy to spy on American citizens in violation of
federal law so long as it "has enough information to get you anyway"?
This is akin to a cop telling a judge "sure, your honor, I burglarized the
defendant's house to get evidence -- but I figured he was guilty anyway."
Is the Navy immune to the law when it is investigating people it presumes
to be "guilty"?
2) If the Navy did in fact have enough information to get McVeigh anyway,
then is the Navy planning to charge Legalman Kaiser and Lt. Morean with
perjury, followed by a court martial?
The two Navy investigators testified under oath that they did not have
sufficient information to link McVeigh to his AOL "member profile" without
calling AOL. Legalman Kaiser testified under oath at McVeigh's discharge
hearing that "we wanted to find out the profile sheet and the name" and "I
just wanted to confirm who it was from." When asked by McVeigh's lawyer
"He gave you information that links members screen names with the member's
actual name? Sounds like that's what you have done," Kaiser responded "Yes,
that is correct." Kaiser called AOL to establish the necessary link.
Kaiser's boss, Lt. Karen Morean, gave even more incriminating testimony
under oath at the same hearing (quoted on CNet's news.com last Friday):
"I planned to establish by whatever means I could think of whether or not
this profile belonged to the screen name or not and whether or not the
screen name belonged to Senior Chief McVeigh," said Lt. Karen Morean. "I
didn't know what it was going to take. I didn't know if AOL was going to
give me the information that I was looking for or if it was going to take
some other kind of research. I didn't know at that point what it was going
to involve, but I suggested obviously that the first step was to call AOL,
and that's obviously as far as I needed to go."
Lt. Morean admits to not knowing whether or not the profile belonged to
McVeigh's screen name. She didn't know whether or not the screen name
belonged to McVeigh himself. She didn't know what it would take to make
this connection. She didn't know what kind of research it would take. She
didn't know what it was going to involve. And after all that doubt, she
admits that once her staff called AOL, and got McVeigh's confidential
subscriber information, it was all the evidence she needed.
If the Navy spokespeople are now telling the truth, and the Navy had enough
information to link McVeigh to the "gay" AOL member profile without having
contacted AOL, then Kaiser and Morean lied under oath. Does the Navy plan
to court martial Kaiser and Morean for perjury?
3) If the Navy did have enough information to get McVeigh, are they
accusing Justice Department attorney David Glass of lying to Judge Sporkin
yesterday, in asserting the opposite?
Glass told Judge Sporkin that when the Navy first received McVeigh's
purported email communication suggesting a link to a "gay" profile, they
asked themselves: "Is this some kind of prank message?" and "Who is sending
me this message...who is it coming from?" Glass said that the government
contacted AOL because they needed "to make sure this was his [McVeigh's]
profile" -- they "wanted to make sure they were investigating the right
person." Glass even went so far as to say that "possibly nothing would
have happened with his email alone," had the Navy not been able to make the
illegal link to the AOL profile.
These are not the words of a many who "has enough evidence" to get McVeigh
anyway, unless of course he lied to the judge.
4) If the Navy did have enough information to get McVeigh, then why all the
subterfuge in getting McVeigh's confidential subscriber information out of
AOL?
* Why didn't the Navy have a subpoena, required by federal law and AOL's
terms of service?
* Why didn't the Navy have a court order, required by federal law and AOL's
terms of service?
* Why didn't the Navy seek McVeigh's permission, required by federal law
and AOL's terms of service?
* Why didn't the Navy identify itself as a government investigator, as
required under federal law?
* Why did the Navy go so far, at least according to AOL's public statement
yesterday, as to pretend they were a "friend or acquaintance" of McVeigh's
in order to trick AOL into releasing the confidential information?
* Why did the Navy lie to AOL and say that they were "in receipt of a fax
and wanted to confirm the profile sheet" -- see Kaiser's sworn testimony --
when McVeigh had sent them no fax?
* Why didn't the Navy go through proper channels and contact AOL's
appointed legal liaison who was in charge of receiving government inquiries
-- a person who, according to AOL's letter of protest to the Navy
Secretary, was "known to the Navy, precisely for such purposes"?
The answer is in Lt. Morean's own sworn testimony: she "planned to
establish by whatever means I could think of whether or not this profile
belonged to the screen name or not." WHATEVER MEANS I COULD THINK OF,
regardless of the law.
5) Did the Navy "intentionally or unintentionally" break the law in this
case?
According to today's New York Times, the Navy released a statement
yesterday saying: "There were no intentional violations of any Federal laws
or regulation by Department of Navy personnel." When asked by the Times if
there had been any "unintentional" violations of Federal privacy laws, the
Navy spokesman declined to comment.
The Navy REFUSED to answer. This is as much as an admission of guilt. Ask
them again, DID THE NAVY INTENTIONALLY OR UNINTENTIONALLY BREAK THE LAW IN
THIS CASE? If we can't get a clear "No" to both points, then that's all
the proof we need.
6) If the Navy didn't do anything wrong in contacting AOL, why did Attorney
Glass tell Judge Sporkin that he "wouldn't have called AOL" if he could do
it all over again?
Judge Sporkin asked Glass to imagine a hypothetical where the government
wanted to connect an anonymous AOL member profile with a specific AOL
subscriber. The Judge asked Glass if, in view of the requirements of
federal privacy law, would he call AOL in search of that subscriber's
information without a court order. Glass answered: "If I knew about the
law, I wouldn't have called AOL."
If everything was kosher, why not?
7) Does the Navy believe that ignorance of the law is a legitimate defense
for committing a felony?
Attorney Glass suggested in court that Navy legal staff were not familiar
with the details of federal wire tapping law, and therefore should not be
held accountable for spying on American citizens in violation of that law.
Chris Wolf, McVeigh's attorney, immediately pointed out that ignorance of
the law is no defense.
Does the Navy believe that it is legal to spy on American citizens so long
as the spies are uninitiated in the complexities of federal law?
8) How does the Navy respond to the author of the "Don't Ask, Don't Tell"
policy, Dr. Charles Moskos, who called their implementation of the policy
in this case "pigheaded" on National Public Radio this past Monday?
How does the Navy respond to Dr. Moskos' sworn declaration to the Sporkin
court saying: "The Navy's actions in this case violated the 'Don't Ask,
Don't Tell' policy," and "To send a suitable message to the military that
investigations of this type will not be condoned, the case against Senior
Chief McVeigh should be dropped"?
How can the Navy claim in the face of all this evidence that they did
nothing wrong in this case?
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