McVeigh v. Cohen

Timothy R. McVeigh (no relation to Oklahoma City bomber Timothy James McVeigh) entered the Navy at the age of 18 around 1980 and earned four Good Conduct Medals and the Navy Commendation Medal. His performance review in 1997 described him as an "outstanding role model" and an "embodiment of Navy core values." By that time he had reached the rank of Senior Chief Petty Officer. In September 1997, while based in Honolulu and serving on the nuclear submarine USS Chicago, With his discharge scheduled for January 16, 1998, McVeigh, represented by Proskauer Rose, filed suit in the district court for the District of Columbia 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 McVeigh's job and income were the pension, health and life insurance, and other benefits given when a service member steps down from the Navy honorably, because he expected to soon retire after 20 years of service. The Navy, after first resisting, acceded to the court's request to delay the discharge until January 27. 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." In Moskos's words: "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." ==Opinion==

On January 26, 1998, U.S. District Court Judge Stanley Sporkin granted McVeigh a preliminary injunction barring the Navy from discharging him. Sporkin wrote that the central issue was whether the Navy complied with its own Don't Ask, Don't Tell (DADT) policy and, by extension, "whether there is really a place for gay officers in the military under the new policy." Sporkin 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: Sporkin 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." Sporkin 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: On the government's argument that McVeigh had acknowledged owning the AOL account, Sporkin 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." Sporkin concluded with his view of the significance of the DADT policy: In conclusion, the court granted McVeigh the preliminary injunction and his discharge was overturned as an "immediate and irreparable injury" to his career and reputation. == Settlement and impact ==

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." Arthur Leonard of New York Law School commented: "Every one of these cases that comes to the public's attention reinforces the absurdity of the [DADT] 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." 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." But McVeigh's attorney complained that in the days after Sporkin's ruling the Navy had assigned McVeigh 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 his order not to take any "adverse action" against McVeigh, who contended that the Navy had not provided him with an assignment commensurate with his rank and experience. 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 Clinton administration's full support for DADT. 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." McVeigh retired from the Navy on July 14, 1998. He said he had been treated well by other service members "with an exception of a few senior officers in the submarine squadron." He concluded: "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." ==References==