The U.S. military, which has achieved so much in working against the endemic prejudices of American society, has failed local resident James Yee miserably. As a review of his case in the Jan. 4 New York Times demonstrates, he deserves not prosecution, but an apology and the dismissal of all charges against him...
DROP THE CHARGES AGAINST CAPTAIN YEE
By Mark Jensen
January 4, 2004
Capt. Yee returned for the holidays to the Pacific Northwest, but his ordeal goes on. A preliminary hearing resumes on Jan. 19 at Fort Benning, Georgia. Let us hope that what Maj. Gen. John L. Fugh, a former judge advocate general (the highest uniformed legal officer in the U.S. Army) called "these Mickey Mouse charges" will be dropped on that occasion. "The whole thing makes the military prosecutors look ridiculous," Gen. Fugh told the New York Times (see below).
Arrested in Jacksonville, Florida, on Sept. 10 on charges of espionage, this fall James Yee endured more than two months in manacles in a naval brig. One of his lawyers said that "Captain Yee was treated in a worse fashion than the detainees at Guant·namo to whom he used to minister."
What the New York Times indulgently refers to as "apprehension," "confusion," "skepticism," "smoldering suspicion," and "jumpiness," was really, it is obvious, something else: a combination of xenophobia and rank prejudice.
There is now an effort underway to blame overzealous lower-ranking reservists nervously aware of their own inexperience in intelligence matters for the blunders in this embarrassing case.
But whatever the true motives of those who accused him, and whatever the accused's personal failings may have been, it is difficult to avoid this conclusion concerning Capt. James J. Yee's work with prisoners held at "Gitmo" as enemy combatants in violation of the norms of international law: He deserves not a court-martial, but a commendation.
For what he was really guilty of was taking seriously his work as Muslim military chaplain and doing his job.
It is time to drop all charges against Capt. Yee.
[N.B. In the print version of Sunday's Times, the article below is given a better title: "As Chaplain's Spy Case Nears, Some Ask Why It Went So Far."]
MISSTEPS SEEN IN MUSLIM CHAPLAIN'S SPY CASE
By Neil A. Lewis and Thom Shanker
New York Times
January 4, 2004
WASHINGTON, Jan. 3 -- As the Muslim chaplain at the military base at Guant·namo Bay in Cuba, Capt. James J. Yee often invited some of the Islamic members of the garrison to his quarters for dinner on Friday after he conducted weekly services.
On at least two occasions, his guest was Senior Airman Ahmad I. al-Halabi, an Air Force translator at the camp, where hundreds of captives from the Afghan war have been held and interrogated for the last two years.
Airman al-Halabi was later arrested on several charges, including suspicion of trying to pass secrets to Syria or some other foreign government, a charge that has since been dropped.
Military officials now say the dinners with Airman al-Halabi, as well as Captain Yee's own connections to Syria, set in motion the arrest, lengthy detention and possible court-martial of Captain Yee, a tangled legal episode that has proved awkward for the military.
First held on suspicion of being part of an espionage ring, Captain Yee, 35, was in the end charged with the far less serious crime of mishandling classified information. He was also eventually charged with adultery and keeping pornography on his government computer, both violations of military law.
As arguments over the merits of those charges play out at a preliminary hearing in Fort Benning, Ga., some military officials continue to defend the prosecution, saying that even technical violations of regulations that fall short of espionage should not be ignored. Senior commanders in charge of the case have declined to discuss it, saying that doing so might jeopardize the prosecution.
But others have come to shake their heads over the case.
"This whole thing makes the military prosecutors look ridiculous," said John L. Fugh, a retired major general and onetime judge advocate general, the highest uniformed legal officer in the Army.
General Fugh said the case ought to be brought to a speedy end when a preliminary hearing resumes on Jan. 19. At the hearing's conclusion, Col. Dan Trimble, the presiding officer, is supposed to make a recommendation to Maj. Gen. Geoffrey D. Miller, the commander of the Joint Task Force that runs the Guant·namo camp, on whether to convene a court-martial, dismiss the case or impose some administrative penalty like a reprimand or discharge.
"It certainly seems like they couldn't get him on what they first thought they had," General Fugh said, "so they said, 'Let's get the son of a gun on something.' "
General Fugh, who has played no role in the prosecution or the defense of Captain Yee, said, "Adding these Mickey Mouse charges just makes them look dumb, in my mind."
According to a senior Justice Department official, even the Federal Bureau of Investigation, which was involved in reviewing the documents that were seized from Captain Yee, never thought much of the evidence against him.
A series of interviews over the last few weeks suggests a number of factors that led the military ever deeper into its prosecution:
Reservists serving as counterintelligence officers at the camp were apprehensive that they might miss some sign of infiltration of the base but were relatively inexperienced in how to handle such matters.
There was confusion over which documents might be classified and which were not. For example, defense lawyers have questioned whether documents in the chaplain's baggage were truly classified, and that is now being formally reviewed.
Some senior officers at Guant·namo were skeptical about the wisdom of having Muslims and Arab-Americans involved in the interrogations of prisoners and other camp operations, and there was smoldering suspicion over what they were doing when they met with one another, according to military officials.
An investigation intended to strengthen the initial charges led instead into unrelated areas, and to the new charges of adultery and of keeping pornography on government computers.
The arrest of Captain Yee at the Jacksonville Naval Air Station in Florida on Sept. 10 drew immediate attention, presenting a strange new twist in the already contentious accounts of the military's detention camp at Guant·namo.
Captain Yee, a New Jersey native of Chinese-American heritage and a West Point graduate, converted to Islam after leaving the Army, traveling to Syria for religious training. Rejoining the Army as a chaplain, he was featured in news articles, with the authorities at Guant·namo eagerly showcasing him as evidence of their tolerance toward the religion of the captives there.
It became evident that his arrest was part of a broader crackdown at Guant·namo when the military announced that it had previously arrested Airman al-Halabi, also on suspicion of espionage. Airman al- Halabi had not only dined with Captain Yee, once alone, but was a volunteer aide in the chapel, a spare wooden building outside the prison facility. The airman is from Syria.
On Sept. 29, the military arrested another translator, Ahmed F. Mehalba, on similar charges of possessing classified information about Guant·namo. Mr. Mehalba, a civilian who had also dined at Captain Yee's quarters at least once, was indicted in November on charges of improperly gathering military information and lying to the F.B.I.
Unnamed officials were quoted in news accounts suggesting that they might have broken up an espionage ring trying to infiltrate the base on behalf of hostile foreign powers.
But that theory has not borne out so far, most notably in the Yee case. The military also recently dropped the most serious charges against Airman al-Halabi, including aiding the enemy, which carried a possible death sentence. Of the original 30 charges, he still faces 17, including some of attempted espionage. But his lawyer, Donald G. Rehkopf, said the "guts of the case" were gone -- the charges of aiding the enemy and of using computers to transmit information abroad.
The military also dropped a charge that Airman al-Halabi had, without authorization, given pieces of baklava to some detainees.
For his part, Captain Yee was placed in solitary confinement in a naval brig for 76 days, much of the time in leg irons and manacles. One of his lawyers, Eugene R. Fidell, said that Captain Yee's jailers would not tell him the time of day or the direction of the compass points to help him pray to Mecca for most of that time. Mr. Fidell said that Captain Yee was treated in a worse fashion than the detainees at Guant·namo to whom he used to minister.
He was released before prosecutors opened their case against him on Dec. 8 in a preliminary hearing at Fort Benning. There was little discussion of national security and more on the newly added sex charges before the hearing was recessed for a formal determination of whether the documents Captain Yee had were classified.
With Captain Yee's parents, wife and 4-year-old daughter in the courtroom, Lt. Karyn Wallace testified at length under a grant of immunity about how their friendship as neighbors at Guant·namo grew into an intimate relationship. The small, spare courtroom that once served as the stage of the court-martial of Lt. William L. Calley Jr. for the My Lai atrocities in Vietnam became the scene of a domestic melodrama as Mrs. Yee angrily confronted Lieutenant Wallace outside the door.
An officer who served at Guant·namo at the same time as Captain Yee said in an interview that one likely cause of his troubles was the relative inexperience of the officers in charge of security at the base.
"They were all reservists and were completely afraid of missing something and were quite jumpy," said this officer, who is still in the service.
Indeed, one of these reservists ended up himself being charged with the same offenses that were initially lodged against Captain Yee, specifically "wrongfully transporting classified material without the proper security container." But the officer, Col. Jack Farr, a reservist in Army intelligence, was not arrested or detained like Captain Yee.
Colonel Farr was also charged with making a false statement about his handling of classified documents when the matter was being investigated.
A military spokesman would say only that each case is different.
Yet in Captain Yee's case, a senior Justice Department official said in a recent interview, civilian law enforcement officials never believed that Captain Yee presented any serious espionage problem.
A spokesman for the United States Southern Command based in Miami said that General Miller had made the major decisions about how to handle the case, including deciding to bring the initial charges against Captain Yee, to have him detained in the brig and to include the additional charges.
"This was all decided at the J.T.F. level only," Lt. Col. Bill Costello, the spokesman, said in an interview. A spokesman for Defense Secretary Donald H. Rumsfeld said that the Yee case never reached his office.
General Miller initially agreed to an interview to discuss how the case grew out of legitimate security concerns. But he later said through a spokesman that military lawyers advised him that it would be inappropriate to speak about the case because it could be viewed as improper command influence over the proceedings.
Although Captain Yee was said to have aroused suspicion by falsely claiming he had no luggage when he arrived in Jacksonville, Sean Rafferty, a customs inspector, acknowledged in his testimony that the principal reason the chaplain was searched was that law enforcement officials had tipped off inspectors; the officials told the inspectors that Captain Yee might be carrying classified documents. It was not, the customs official said, a random search, nor was it occasioned by any comments about the baggage.
The chaplain was chaperoning a child from Guant·namo to Jacksonville, and as he was taking the child to a building at the airport to be met by another adult, he was asked whether he had any luggage. When he answered that he did not, he may have meant that he left it elsewhere, his lawyers have suggested.
When his bags were searched, Mr. Rafferty said, they were found to contain two green-covered notebooks, small enough to fit in a shirt pocket and filled with Captain Yee's writing. There was also a typewritten sheet, he said, which appeared to have names of detainees, their identifying numbers and possibly the names of their interrogators.
A dispute over whether these documents contained classified information caused a 41-day postponement of the initial hearing into the case, after defense lawyers complained there had never been a formal determination of their classification. Colonel Trimble said General Miller agreed to a review of that question.
Colonel Costello and other military officials disputed the idea put forward by Captain Yee's lawyers that the classification review was to determine whether the documents themselves were properly classified. While the typewritten list, for example, did not carry any classification stamp, Pentagon officials said that if the information was secret, it might still be classified even if copied in Captain Yee's own hand or printed in some other form.
"At the time of his apprehension there is no doubt that the information was classified," Colonel Costello said. "At the time, nobody knew what was going on. Here's the Gitmo chaplain with classified data and he's leaving the island and that raised some suspicions."
The charge of adultery against Captain Yee has caused particular consternation throughout the military legal system.
Army officials said there had been about 60 cases of adultery prosecuted in the last two years, always as part of some larger set of criminal charges, like rape. The military, in guidelines to commanders, suggests that offenses like adultery become a particular problem when they affect discipline and order, as in cases that involve superior officers and their subordinates. This was not the situation with Captain Yee and Lieutenant Wallace.
But some military officials said there was little choice but to include those issues in the preliminary hearing at Fort Benning, since they were uncovered as part of a criminal investigation and commanders did not have the discretion to ignore them.
If ordered to undergo a court-martial and convicted on all six charges, Captain Yee could face up to 13 years in prison.