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Vital Information in the wake of the AOL Privacy Violation

SERVICEMEMBER ADVISORY
Under Article 31 of the Uniform Code of Military Justice:

You have the right to remain silent.
You have the right to consult a defense attorney.
Say nothing.
Sign nothing.
Get legal help.

Civilians and Investigations

Generally, military investigators have no jurisdiction over civilians. While they may question civilian friends and family members in an effort to obtain information against suspected gay troops, civilians have no obligation to answer military investigators' questions or to let military investigators search their homes without a search warrant. Anything civilians tell investigators, no matter how harmless it may seem, can be used against the servicemember.

Military investigators may bring civilian police officers with them when they try to question civilians. Even if a civilian police officer is present, civilians still have the right not to answer questions or to object to a search of their homes without a search warrant. It is not safe however, to try to physically block or interfere with the officers' actions.

Civilians may tell military investigators (and civilian police who come with them) to leave. If the investigators refuse to leave, civilians may obtain help by calling a defense attorney or legal worker.

Investigative Tactics

Despite investigative limits, military commanders, inquiry officers and investigators often do the following during investigations:

  • Read private letters, diaries, and computer files to seek evidence of homosexuality.
  • Search or inspect rooms, desks and wall lockers for "gay" personal effects, such as gay magazines, literature and videos, and use them as a basis of inquiry or as evidence of homosexual conduct.
  • Ask about sexual orientation through direct or surrogate questions, such as "Are you attracted to individuals of the same gender?" or "Are you in a spousal relationship with your roommate?"
  • Seek out and question parents, other family members and close civilian and military friends about servicemembers' sexual orientation and activities and use these statements against servicemembers.
  • Investigate and discharge personnel because they discuss their sexual orientation or information about their private lives with a physician, psychologist, close friend, parents and family.
  • Investigate the sexual orientation or acts of military members who report harassment or threats based on actual or perceived sexual orientation.
  • Investigate women who report sexual harassment and assault, or who rebuff men's' sexual advances, and who are labeled lesbians in retaliation.
  • Threaten servicemembers with imprisonment if they do not confess that they are gay or have engaged in gay acts, or name other suspected gay personnel.
  • Promise servicemembers leniency if they confess to being gay or to gay acts, or if they name other suspected gay personnel.
  • Lie about the existence of other evidence to coerce confessions or pressure servicemembers to name other suspected gay personnel.
  • Falsely claim that friends have already turned in the servicemember and that he/she has nothing to lose by cooperating with investigators.
  • Falsely say the "new" policy allows members to reveal their sexual orientation to investigators.
  • Use the "good guy, bad guy" tactic, with the "good guy" claiming to like gays and dislike the ban.
  • Use associations with known gay people as "proof" of gay conduct.
  • Use information from civilian police as a basis for discharge, such as reports of hate crimes based on orientation, statements of orientation to show lack of consent in rape cases, or evidence seized when civilian roommates' homes are searched.
  • Tell servicemembers that they have been accused of forcible sodomy in order to extract a confession that the acts were consensual, which also can be prosecuted as a crime.
  • Fail to warn servicemembers of their legal rights to say nothing, sign nothing and consult with a defense attorney.
  • Fail to advise servicemembers of the reason they are under investigation and of the policy on homosexual conduct.

Statements

"A basis for discharge exists if . . . (2) The member has said that he or she is a homosexual or bisexual, or made some other statement that indicates a propensity to engage in homosexual acts . . . ." 39 "A 'statement that a member is homosexual or bisexual, or words to that effect,' means (1) language or behavior that (2) a reasonable person would believe (3) intends to convey the statement (4) that a person engages in or has a propensity to engage in homosexual acts. This includes such statements as 'I am a homosexual,' 'I am gay,' 'I am lesbian,' 'I have a homosexual orientation,' and the like." 40 Servicemembers should be warned that expressions of desire or romantic interest are also likely to be interpreted as statements.

Servicemembers are not even safe making private statements to family members, close friends, psychologists and others. SLDN has cases where such private statements are being used against servicemembers. Some servicemembers have been turned in by those they trusted. There is no doctor-patient or psychologist-patient confidentiality in the military. In the Air Force, investigators have sought out and questioned parents, some of whom have unwittingly provided information that was then used against their sons and daughters.

The regulations also prohibit nonverbal statements, but they do not define what nonverbal statements are. This gives prejudiced commanders a lot of room to target suspected gay servicemembers if they want to. To be safe, military members should not wear or display gay symbols, as these symbols could be construed as nonverbal statements. Servicemembers should be aware that gestures of sexual interest could also be interpreted as nonverbal statements.

Computers

Many servicemembers believe their computer correspondence and on-line discussions are secure. They are not. Information from computer drives, disks, e-mail or on-line services has been used to investigate and discharge servicemembers. Sometimes, military investigators go on-line to scan for gay military members or to catch suspected gay servicemembers talking about their sexual orientation or activities, or that of other servicemembers.

Investigators also routinely search work computers and servicemembers' network accounts for security reasons and for evidence of homosexuality. In a number of cases, investigators have retrieved suspected gay servicemembers' e-mail. Investigators have also searched the personal computers and disks of suspected gay servicemembers, using the Norton utilities program to retrieve deleted files.

We are also aware of attempts to bait gay servicemembers on-line. A servicemember should never assume that someone is who they claim to be when they are on-line.

Military members should never write personal letters or diaries on work computers. Doing so could violate base policies on misuse of government equipment as well as lead to detection by coworkers or investigators.

To be safest, servicemembers who live on-base should never save files containing private information or identifying gay, lesbian or bisexual friends on their personal computers or disks. Even servicemembers who live off-base must weigh the risk that they and their friends will face discharge or worse if computers and disks are confiscated during a search of their homes.

Servicemembers who discuss their sexual orientation or activities on-line risk investigation and possible entrapment by military investigators. This could result in discharge or worse.


© Material Copyright 1998 Servicemembers Legal Defense Network. All Rights Reserved.
Servicemembers Legal Defense Network is in no way associated with this competition, and has not endorsed it.

 
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