Federal Judge Rosemary A. Collyer of the D.C. District has ordered three government agencies to turn over by the end of May all documents they have regarding covert surveillance of domestic LGBT groups. The order is the culmination of a months-long struggle by the Service Members Legal Defense Network to force the Departments of Justice and Defense to release any information they possess regarding the matter.

In December, NBC News reported that the Pentagon had been monitoring college student groups opposed to the military’s “Don’t Ask, Don’t Tell” policy which forbids open service by gay and lesbian personnel. According to NBC News, and later confirmed by a partial release of documents from the Defense Department, the LGBT law student group at NYU, OUTLaw, was labeled “potentially violent” by Pentagon officials, who believed “the term Outlaws is a backhanded way of saying it is alright to commit possible violence and serve as vigilantes...”

The Pentagon began an investigation of OUTLaw when it was learned that the group would be participating in a February 2005 student protest against military recruiters on the NYU campus. Defense intelligence officials reported that the event “may involve Outlaws” a possible security threat to the recruiters.

A similar assessment was made by the Pentagon regarding a “Don’t Ask, Don’t Tell” protest at the University of California Santa Cruz that included a gay kiss-in in the presence of military recruiters. The student gathering was considered as a “credible threat” for terrorism.

NBC news also said student organizations at the State University of New York at Albany and William Patterson College were also targets.

The student groups were also protesting the Solomon Amendment, which compels universities receiving federal money to allow military recruiters on their campuses even though the schools require all potential employers to adopt a non-discrimination policy that includes sexual orientation. The Solomon Amendment was recently upheld by the U.S. Supreme Court in a unanimous decision.

To determine the full extent of this surveillance, SLDN filed a Freedom of Information Act (FOIA) request with Justice and Defense. In response, the Department of Justice stated they had not conducted a search of their records, but were confident no records existed. The National Security Agency, part of DOD would not confirm or deny the existence of surveillance activities or whether records of surveillance existed.

SLDN’s lawsuit also seeks to determine what other gay groups, not just those engaged in protesting “Don’t Ask, Don’t Tell, have been secretly scrutinized.
OUTLaw and the UC Santa Cruz groups were snared in the DOD’s Threats and Local Observation Notice (TALON) program originally part of the government’s widening effort to investigate sources of domestic terrorism by foreign sources.

Similar Pentagon investigations of anti-war protestors and peace activists during the Vietnam war led to Congressional hearings and limits on the type of information the Defense Department could collect about U.S. citizens.

In a February letter to the Senate Armed Services Committee, the Defense Department acknowledged that it had inappropriately gathered information on the student protestors.

What remains unknown is the extent of the operation. Documents already released do not indicate how the surveillance was conducted, whether through monitoring of email, phone conversations, photographs, video, or listening devices. Nor do the documents reveal how the gathered information was to be used.

In the case of the NYU protests, the Pentagon was tipped to their schedule by an unnamed email source.

What these documents do reveal is a U.S. military unfamiliar with the LGBT community. “The DOD is pretty clueless about who they should be monitoring and why,” said Steve Ralls, spokesman for SLDN.

In particular Ralls referred to the Pentagon considering the name OUTLaws as somehow indicative of the group’s anti-government philosophy, rather than a reference to their sexual orientation.

Only the Defense Intelligence Agency, a part of DOD, returned calls for comment. According to the DIA’s FOIA office, no surveillance documentation or evidence of programs was uncovered in a record search.

Ralls at SLDN said his organization had yet to receive notification from the DIA.

In an email, DOD spokesman Commander Gregory Hicks said that it was mistake the gay groups fell under the TALON program. “We have taken very quick and thorough measures to ensure that our TALON records now have the foreign terrorist threat nexus that it was set for in the first place...less than 2% of the total number of TALON reports did not comply with present directives. All of those have been removed from our database,” Hicks wrote.

All branches of DOD must complete a thorough review of their records by May 4. Judge Collyer imposed a May 11 deadline on the Justice Department.