Military investigators are conducting undercover surveillance "in an apparent attempt to skirt the letter and intent of 'Don't Ask, Don't Tell,'" charges the Service Members Legal Defense Network ( SLDN ) . The surveillance ostensibly is about illegal drug use but it appears to target only gay bars, not straight ones, in Washington, D.C.
According to testimony at a military hearing, at least nine soldiers have faced drug-related charges as a result of this investigation. However, SLDN knows the identities of only two, and those are being held in confidence.
SLDN made the accusation in a June 2 letter from legal director Stacey Sobel to David L. Brant, director of the Naval Criminal Investigative Service ( NCIS ) for the Washington region. Copies were sent to numerous elected and Pentagon officials. Brant has agreed to meet with Sobel.
The SLDN letter quoted heavily from the transcript of an April 28 Article 32 administrative hearing. That preliminary step has led to initiation of court-martial proceedings against a sailor and a Marine.
At that hearing, NCIS Special Agent John P. O'Connor testified that they had been conducting the surveillance for "the past couple of years" at four bars or clubs whose clientele is primarily young gay men.
The standard practice was to have the agent, himself an attractive clean-cut man in his 20s, approach and strike up a conversation with someone whose haircut and demeanor suggested that he might be in the military. The conversation eventually would be steered toward where one might obtain illegal substances, such as ecstasy, and perhaps to life in the military.
"To our eye, it appears that NCIS is targeting gay bars," says Michele Benecke, co-director of SLDN. At the hearing, "the only commercial establishments that the agent named were gay bars."
"The second reason why we believe this is a ruse to get around Don't Ask, Don't Tell, is that they appear to have no probable cause for investigating these servicemen." The men arrested have no prior record of drug use.
The fishing expedition also caught civilians up in the net. O'Connor said that NCIS "identified people in the past that—after we put the person under surveillance and followed them and found out who they were—they turned out not to be in the military," they would pass the information on to local law enforcement.
That information included license plate numbers.
This "raises serious concerns that military criminal investigators are deliberately skirting the letter and intent" of DADT, wrote Sobel. "By targeting suspected gay service members at gay bars and nightclubs for disparate treatment, the surveillance operation chills service members' access to resources within the gay community."
"When I served in the military in the 1980s," Benecke recounted, "criminal investigative agents used to go down to the areas surrounding the gay bars and write down the license plate tags of every car with a decal" for entry to the base. "And run them through the system and find out who was in the military."
"That was supposed to stop under Don't Ask, Don't Tell. The policy specifically prohibits targeting gay establishments," she said. "It raises the question of who gave approval to this in the first place."
"It is bad enough that they are conducting surveillance on military members. And it sends even more chills up my spine when you think about not just the government, but the military part of our government conducting that surveillance on civilians," says Benecke." I think that brings home the intrusiveness of this."
SLDN has requested "a full written accounting and justification of all NCIS surveillance operations conducted against District of Columbia" gay bars, and a halt to all such operations. Benecke also wants to know "what has happened with the information gathered? Is it sitting in some database somewhere?"
Fighting Back
David Sheldon is an attorney representing a Marine facing one charge of distribution of a narcotic, ecstasy. Sheldon was reluctant to discuss some aspects of the case because his client "is very afraid of being 'outed' and retaliated against. He has obvious and understandably legitimate fears of being harassed. His personal safety is a concern."
Sheldon said that the Marine, who has served in the Corp "for a number of years and has an excellent record," was approached by the NCIS agent at the gay club "Velvet Nation" in January. The agent "asked a lot of different questions regarding his sexuality," and eventually about ecstasy.
The Marine "believes, as I do, that he was set up and entrapped in this case," said Sheldon. "My client trusts the system and believes that he will be vindicated in the end." A preliminary hearing was held April 28 and he was arraigned June 2. The court-martial is set for Aug. 13. Punishment ranges up to a bad conduct discharge, which affects pay and benefits.
The Gay and Lesbian Activists Alliance ( GLAA ) , a venerable local organization, is pursuing issues surrounding the NCIS claim that information on civilians was passed to the D.C. police department.
Bob Summersgill, GLAA president, said they have a regularly scheduled quarterly meeting with D.C. Police Chief Maurice Ramsey June 14. They hope to learn the scope of information provided by NCIS and what the department is doing with that information.
"We're getting mixed reports from lower level people in the police as to whether or not they are really getting any information from or working with the military on this," said Summersgill. A couple of people have said 'Yes,' but the people who would actually be doing the work said 'No.' So it is unclear to us."
In the meantime, GLAA was out in the bars of Washington over this gay pride weekend distributing thousands of SLDN's palm cards advising service members of their rights. And JR's, one of the bars targeted for NCIS surveillance, sponsored an ad in the local gay newspaper with the same message.
While current evidence focuses solely on surveillance activities carried out in Washington, D.C., similar activities may have been or still are being carried out in other cities with a military presence, including Chicago, with the Great Lakes base just a few miles to the north.
Gay service members may not realize that they were targeted for entrapment on drug charges because of their sexual orientation. Or if they suspected that fact, they may have had a greater fear for their physical safety in light of the homophobic murder of PFC Barry Winchell last year.
Soldiers who suspect they may have been the victim of similar entrapment are encouraged to contact SLDN at ( 202 ) 328-3244, or sldn@sldn.org with "attention legal" in the subject line. Benecke says that all communications are kept confidential.
