Servicemembers Legal Defense Network

June 2, 2000

Mr. David L. Brant
Director, Naval Criminal Investigative Service
Washington Navy Yard
901 M Street, S.E. Building 111
Washington, DC 20388-5380

Re: Military Surveillance of Gay Bars and Nightclubs

Dear Mr. Brant:

The Servicemembers Legal Defense Network (SLDN) has learned the Naval Criminal Investigative Service (NCIS) is conducting undercover surveillance operations in District of Columbia gay friendly bars and nightclubs, in an apparent attempt to skirt the letter and intent of "Don't Ask, Don't Tell, Don't Pursue, Don't Harass." Current policy prohibits military criminal investigative organizations from investigating service members' sexual orientation. [1] The policy further allows for all service members to engage in associational activities such as going to gay bars. [2]

The evidence obtained by SLDN suggests criminal investigators are specifically targeting suspected gay service members and, while being unable to discharge them for patronizing the gay bar or nightclub, solicit them to engage in other conduct which may carry administrative or criminal penalties. SLDN requests that NCIS suspend all surveillance operations at gay friendly bars and nightclubs immediately, and suspend all administrative or criminal actions resulting from these operations, pending a thorough review of NCIS conduct in this matter.

According to a transcript of an Article 32 hearing held on April 28, 2000, obtained by SLDN, NCIS Special Agent (SA) John P. O'Connor testified that NCIS conducts surveillance operations against at least three District of Columbia establishments having primarily gay male clientele: JR's Bar and Grill, Badlands Nightclub and Velvet Nation Nightclub [3] (NCIS also targeted the Tracks Nightclub which has recently closed). Special Agent O'Connor did not mention any other District of Columbia bars or nightclubs under military surveillance, [4] suggesting the NCIS is specifically targeting gay service members. Special Agent O'Connor testified that the surveillance has been running for "the past couple of years." [5]

Special Agent O'Connor testified that NCIS is working closely with the Army Criminal Investigations Division (CID) and the Air Force Office of Special Investigations (OSI) in these operations. [6]

Special Agent O'Connor further indicated that the surveillance targets suspected gay service members without any prior indication of misconduct. Special Agent O'Connor testified, "when we identify someone who we think is a U.S. military member . . . we target that individual and then see if the information can be developed."

Special Agent O'Connor also testified that he intentionally selects young informants and undercover agents to go to these establishments during the early morning hours. According to the Article 32 hearing transcript, the covert operatives approach military appearing men, initiating conversation and flirting. For example, Army CID agent Carlder L. Robertson — a handsome, clean-cut man appearing to be in his early 20's — described how he approached a man in Velvet Nation: "I'm fairly sure there was some conversation about the music and the people, and the overall theme of the club at that time." [7] The military operatives then ask the men whether they know where the operatives can obtain illegal substances, in an effort to develop criminal charges against the suspected gay service member.

Special Agent O'Connor further testified that NCIS undercover agents routinely trace vehicle license plates of suspected service members. [8]

The NCIS surveillance has also targeted civilians. Special Agent O'Connor testified: "[NCIS has] identified people in the past that — after we put the person under surveillance and followed them and found out who they really were — they turned out not to be in the military. So therefore we would take the intelligence and pass it to local law enforcement." [9] It is not known whether local District of Columbia law enforcement officials know of, condone, or follow-up on civilians targeted during these operations.

The sworn testimony raises serious concerns that military criminal investigators are deliberately skirting the letter and intent of "Don't Ask, Don't Tell, Don't Pursue, Don't Harass" 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. [10]

SLDN requests that you provide a full written accounting and justification of all NCIS surveillance operations conducted against District of Columbia businesses catering to the gay, lesbian and bisexual community. In the meantime, SLDN asks that you halt all Navy surveillance operations targeting gay friendly establishments, and any adverse actions being taken against those ensnarled in these operations. We look forward to the Navy's prompt response to these disturbing developments.

Sincerely,

Stacey L. Sobel, Esq.
Legal Director

cc: The Honorable Eleanor Holmes Norton, U.S. House of Representatives
The Honorable Barney Frank, U.S. House of Representatives
Ms. Julian Potter, White House Special Advisor to the President
The Honorable Richard Danzig, Secretary of the Navy
The Honorable Louis N. Caldera, Secretary of the Army
The Honorable F. Whitten Peters, Secretary of the Air Force
Admiral Jay L. Johnson, Chief of Naval Operations
General Eric K. Shinseki, Army Chief of Staff
General Michael E. Ryan, Air Force Chief of Staff
Brigadier General David W. Foley, Army Criminal Investigative Command
Brigadier General Francis X. Taylor, Air Force Office of Special Investigations
Rear Admiral K.L. Martin, Commander National Naval Medical Center
The Honorable Anthony Williams, Mayor of the District of Columbia
The Honorable Linda Cropp, Chairwoman of the D.C. City Council
The Honorable David Catania, D.C. City Council
The Honorable Carol Schwartz, D.C. City Council
The Honorable Jack Evans, D.C. City Council
The Honorable Jim Graham, D.C. City Council

Footnotes:

[1] Dep't of Def. Directive 5505.8 D.1. "No DCIO or other DoD law enforcement organization shall conduct an investigation solely to determine a Service member's sexual orientation."

[2] Dep't of Def. Directives 1332.14; 1332.30. "[Credible information to investigate gays does not exist when] the only information known is an associational activity such as going to a gay bar, possessing or reading homosexual publications, associating with known homosexuals . . ."

[3] According to SA O'Connor, NCIS sometimes also targets the Sting Nightclub, which is the Friday night name of the Velvet Nation facility and is reportedly popular with gays and heterosexuals alike. SLDN has also received a reliable report that NCIS also targets the Chaos Restaurant and Bar, which is a gay friendly establishment.

[4] Art 32 Transcript.

[5] Special Agent O'Connor testified that the operation resulted in charges against at least nine services members at gay bars and nightclubs. It is not clear how many total suspected gay service members the operation has targeted.

[6] Transcript of April 28, 2000, Article 32 Hearing, Washington Navy Yard, Washington, D.C. ("Art. 32 Transcript"). SA O'Connor: "OSI agreed to help us and so did the Army CID. . . ."

[7] Art 32 Transcript.

[8] Art 32 Transcript. SA O'Connor: "Understand that the way it's determined that the individual is a military member, the informant will try to strike a conversation and try to elicit the information that the individual is a military member and then you take that information, run their plates and try to confirm that information."

[9] Art 32 Transcript.

[10] Under the policy, gay service members are allowed access to gay establishments and organizations. Service members patronizing these establishments face serious risk of adverse military administrative actions should the military undercover agents perceive them as gay, lesbian or bisexual. SA O'Connor testified: ". . . I have people going to these clubs trying to gather criminal intelligence. And he's not the only person that's seen in these clubs. He's not in isolation here, other sailors and marines are also documented." Art 32 Transcript.