Time is of the essence. That is the entire point of Freedom of Information Act (FOIA) requests filed by the Servicemembers Legal Defense Network in the wake of NBC News reports first aired in December that student groups opposed to the Don’t Ask, Don’t Tell policy and the presence of Armed Services recruiters on campus have been the subjects of FBI and military surveillance.
The crux of SLDN’s argument is that the due process rights of legitimate gay and lesbian student protesters are implicated by any government spying going on and that “expedited” replies to its requests are needed to cure the potential abuse of their privacy.
In various ways, key Bush administration agencies have indicated they have no intention of responding in a satisfactory or timely manner.
At least four gay and anti-war campus groups—OUTLaw, the gay caucus at NYU Law School, and others from the State University of New York at Albany, William Patterson University in Wayne, New Jersey, and the University of California at Santa Cruz—were spied on, according to NBC.
A picket by Students Against War at UC Santa Cruz last April—in which 300 protesters surrounded military representatives, effectively subverting their efforts to meet and greet potential recruits—was labeled “a credible threat” for terrorism, according to the NBC report. Surveillance of that event was carried out not by the FBI, but rather by the Army’s 902nd military intelligence group.
An OUTLaw protest at NYU which drew a crowd of 60 last April, also aimed at military recruiters, was similarly subject to surveillance.
In the immediate aftermath of the NBC report, SLDN announced its FOIA requests. Among a number of such filings, Counterintelligence Field Activity at the Department of Defense, the Office of Attorney General, and the FBI were served. The first round of government responses are in and the news is not encouraging.
Among the three agencies’ responses, the most discouraging is the reply from the Department of Defense, because that one challenges the heart of the SLDN request. The DoD refused to expedite the filing, claiming that SLDN’s grounds for requesting that—because the group is “primarily engaged in disseminating information to the public” and because “imminent loss of due process rights” is threatened—were not credible arguments.
Christopher Wolf, the attorney at the Washington law firm of Proskauer Rose who drafted the FOIA request, took particular aim at the Defense Department’s assertions on due process, noting that Chief Justice John Roberts, in his confirmation hearings last summer, clearly stated that due process protections implicate the right to privacy, precisely what is at issue in this case.
Steve Ralls, an SLDN spokesman, offered a more blunt spin on DoD’s refusal to acknowledge what is at stake. Given the enormous media interest in domestic spying matters, he said, “documents available today might not be around tomorrow.”
This concern, of course, lies at the center of almost every debate that has surfaced about the Bush administration’s claims to authority in waging a war on terrorism—indeed, in carrying out almost any executive function—without public oversight. The president, his vice president, and their defenders demand not only the right to operate proactively without constraints or interference, but also the ability to shield their decisions and actions from any scrutiny after the fact.
This case involves students protesting on campus. In a case reported by The Times on Monday, a group of six Egyptian immigrants, strong-armed into leaving the U.S. after 9/11 without ever being charged with any crime, are being allowed to return to initiate legal action, but only after agreeing to a government proviso that they be closeted in Manhattan hotels incommunicado during the week they give depositions. In both cases, the passage of time without redress of constitutional claims amounts to denial of those claims.
Put another way, justice deferred is indeed justice denied.
Responses from the FBI and the Office of Attorney General were no more forthcoming. The FBI said that SLDN’s filing could not be processed because it did not "reasonably describe" the records being sought. Wolf charged that response was clearly “knee-jerk,” “not meritorious,” and “did not reflect the unusual level of specificity” in the filing. The nonsensical nature of the FBI argument is abundantly clear to anyone who peruses the FOIA filing at sldn.org.
The Office of Attorney General told SLDN it customarily “would not maintain” the records it sought, despite Ralls’ contention that it was clear to his group that the AG does in fact house those categories of information.
SLDN and Proskauer Rose have just begun to fight, and the students at Santa Cruz are likely to soon file their own FOIA request with help from the ACLU.
But it is already clear that the battle to end surveillance of legitimate protest against military anti-gay discrimination is but a piece with the larger struggle against the poisonous secrecy at the core of the Bush administration.