In an hour-long proceeding this morning in federal court in Washington D.C., David Glass, the lawyer for the U.S. Government, admitted that if he had to do the McVeigh investigation over again, "I wouldn't have called AOL."

Glass was referring to violations of federal law committed by Navy legal staff in obtaining key information against decorated sailor Tim McVeigh.

Judge Sporkin expressed his concern that there "ought not be any search and destroy missions by the Navy" in conducting "Don't Ask, Don't Tell" investigations, but he declined to reach an immediate decision in the case (one is instead expected any time over the next few days).

An hour before the proceeding, America Online released a blistering statement accusing the U.S. Navy of deliberately violating federal law. "After completing our review of AOL's role in the U.S. Navy's investigation [of Senior Chief McVeigh], we have found:

The Navy deliberately ignored both Federal law and well-established procedures for handling government inquiries about AOL members." AOL also reported that it has sent letters of protest to the Navy and the Department of Defense.

During the arguments, government attorney Glass repeatedly admitted that the government had no real evidence linking McVeigh to the purportedly "gay" AOL member profile until Navy investigators called AOL, in violation of the federal Electronic Communications Privacy Act (ECPA). Glass said that when Navy personnel initially received what has now become key government evidence against McVeigh in these proceedings, the investigators 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. Glass' admissions in federal court contradict all Navy tatements to date.

Judge Sporkin then 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."

Glass then went on to suggest 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.

While Judge Sporkin has not yet ruled on the case, he did tell the court room that he was concerned about the Navy possibly discharging McVeigh before the case was resolved. "I think that the better way to proceed is to keep him [McVeigh] on" until the case is resolved, the Judge said. The government lawyers refused to make any guarantees about McVeigh's future. He was set to be discharged at midnight tonight.

The Judge's concerns in this case echo those of Dr. Charles Moskos, a military sociologist at Northwestern University, and the author of the "Don't Ask, Don't Tell" policy. In a sworn 4-page declaration given to the court by McVeigh's attorneys, Moskos said: "The Navy's actions in this case violated the 'Don't Ask, Don't Tell' policy." Moskos added that: "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."

"A man's 17-year career may be in ruins, and the government now says 'oops, we made a mistake'? This is simply not acceptable," said John Aravosis, a lawyer and Internet consultant assisting McVeigh on the case. "Ignorance of the law is no excuse. When the Navy thought McVeigh broke the law, they were willing to destroy his career -- but now it seems the Navy committed the crime, and we're supposed to turn the other cheek? I don't think so. The President should put an end to this farce immediately, and free this American hero."

FULL TEXT: AOL'S LETTER TO THE NAVY

January 16, 1998

Steve S. Honigman
Department of the Navy
Office of the General Counsel
1000 Navy Pentagon
Room 4E724
Washington, DC 20350-1000

VIA FACSIMILE

Dear Mr. Honigan:

America Online has been carefully following the administrative discharge proceedings brought by the United States Navy against Senior Petty Officer Timothy McVeigh. As you know, the transcript of Senior Petty Officer McVeigh's discharge hearing (without exhibits) was filed yesterday in connection with his complaint against the Secretaries of Defense and of the Navy filed in United States District Court for the District of Columbia.

America Online is deeply concerned that the United States Navy, according to the sworn testimony of its personnel in Senior Petty Officer McVeigh's hearing, may have utilized improper, and perhaps unlawful, procedures in seeking to confirm certain information about a person the Navy believed to be one of our members.

Federal law provides, as you no doubt are aware, that America Online may not knowingly release information pertaining to a subscriber to a governmental entity without legal process. As a consequence, America Online has well-established policies in place for dealing with information requests from government agencies, including law enforcement agencies. Indeed, America Online has designated as liaison a lawyer, known to the Navy, precisely for such purposes.

America Online requires any government official who is seeking information about one of its members to follow the procedures outlined above. These procedures require that government officials identify themselves and produce valid legal process seeking the release of private information about the member in question. This policy is well known and has been communicated many times to the Department of Defense.

By their own account, the Navy investigative personnel assigned to this case did not obtain any legal process in making their inquiry to America Online, and, in fact, did not even disclose that they were government officials. Indeed, America Online believes that Navy personnel may have misrepresented themselves and their purpose in their attempt to confirm information they apparently already had obtained in their investigation.

For these reasons, America Online is quite concerned about the practices of Navy personnel in this matter, and most respectfully requests that the United States Navy make clear to its personnel that they comply with the procedures outlined above before private information from America Online concerning its members.

Please contact me at your earliest opportunity to confirm your agreement with the above.

Very truly yours,

George Vradenburg, III

cc: Judith A. Miller
Admiral Kendell Pease