11Dec03-Tom Regan-Army's prosecution of Muslim chaplain falls apart
The case that "began with a bang" may "end with a whimper."
By Tom Regan | csmonitor.com
When he was first arrested in September, and charged with having classified documents, Muslim chaplain Youssef Yee was accused of being part of an espionage ring at Camp X-Ray, the US military facility at Guantanamo Bay that houses "enemy combatants." Mr. Yee, who had served as a Muslim chaplain at the base, was locked in a brig for 76 days, and often restrained by leg and wrist shackles. Media commentators wrote about the "enemy within," while some on Capitol Hill called for an investigation into the organization that provides Muslim chaplains to the military. Yee's lawyer was told that his client might face the death penalty.
But the case against Yee has slowly fallen apart. In late November, Yee was suddenly released from the brig where he was held in South Carolina, and returned to active duty at Fort Bragg, Georgia. Additional charges, much less serious than the original charges were filed against him for storing pornography on a government computer, and committing adultery. The Seattle Times reports that his release from jail means that he is no longer being looked at as aiding terrorists.
"It certainly doesn't seem as serious as it appeared at first," said retired Army Brig. Gen. John Cooke, an expert on military law and past chairman of the American Bar Association's committee on armed-forces law. "If they had any credible reason to believe he was involved in terrorism, they would not have released him."
The Atlanta Journal-Constitution reports Tuesday that the "Article 32" hearing to determine if Yee would face a court-martial was put on hold for a month while the Army determined if the documents found in his briefcase were indeed classified ones.
"Obviously, it's the position of both the trial counsel and the defense that the material be looked at properly and be treated properly," said Army Lt. Col. Bill Costello, spokesman for the Southern Command. The military did not explain why this process still had not been completed, three months after Yee's arrest.
The New Jersey Star-Ledger reports that this disclosure caused Yee's civilian attorney, Eugene Fidell, to wonder outloud how Yee could have been locked in a brig for 76 days for mishandling classified documents when military officials had not reviewed the papers to find out if they contained information that could compromise security if released.
"We need Joseph Heller," said Fidell, referring to the author of "Catch-22," the 1961 novel whose protagonist becomes entangled in a web of military absurdities.
The month-long delay comes a week after the hearing's first pushback, which was ordered when the Army announced its prosecutors may have mistakenly mishandled classified documents (the same thing that Yee is supposed to have done wrong), and sent them to the defense.
But Yee's lawyers are enraged at the Army's handling of the case, according to the Miami Herald. "I think they really shot first and asked questions later," said Matthew Freedus, another one of Yee's defense lawyers. The Boston Globe reports that the second delay was ordered only after Fidell clashed with Army Colonel Dan Trimble, the investigating officer who is to judge whether the charges against Yee merit a court martial. Fidell stormed into the courtroom Tuesday, complaining to observers that Mr. Trimble wanted to discuss the problem behind closed doors in violation of his client's right to a public hearing.
Yee's defense team also said the Army withheld evidence, hid witnesses and conducted an unfair hearing. "This is the most incredible military justice proceeding that this defense counsel has ever been involved with," said Maj. Scot Sikes, a former prosecutor who is acting as Yee's military lawyer.
"It concerns me that this case was raised to a level (far) above reality and it seems we've been on a steady decline in the seriousness of the allegations," Sikes said Tuesday, standing atop the steps of the red brick courthouse here. "When you raise it to the level that it was, there's some face-saving perhaps that has to go on."
Sikes urged the Army to drop the charges and deal with the misconduct allegations administratively. "All we want is an even playing field. Our client is not a spy, and he has not aided and abetted the enemy, whoever the enemy is."
Military prosecutors, however, made no apologies and appeared undeterred by the repeated objections raised by Yee's attorneys during Monday's hearings.
Yee's lawyers were particularly upset that Monday the Army focused on the charges of porn and adultery – forcing Yee's wife to sit through the testimony of his alleged mistress – before admitting it wasn't sure if he had actually transported any classified documents out of the Cuban base. CNN reports that the defense, however, did get one of the prosecution's witness (the custom agent who seized his briefcase) to admit that none of the papers in the briefcase were marked classified or secret. The agent said he had received a tip from someone in "law enforcement" to search Yee, but he would not say it was.
The San Jose Mercury notes that Muslim-American and Asian-America activists are also outraged about Yee's treatment, saying Yee was targeted because he was both a Muslim and an Asian-American. Others say Yee was imprisoned because he was about to criticize conditions at the camp. They also took a swipe at the national media, pointing out that Yee's arrest was national news, but his release last week was barely covered by the media.
"I find the government's handling of Capt. Yee's case to date outrageous," said University of California-Berkeley Professor Ling-chi Wang ... "I must wonder if the government's case against him was driven by racism and religious bias."
Colin Campbell, writing Thursday in the Atlanta Journal-Constitution, says it seems that Yee is being "court-martialed for treasonable horniness." Mr. Campbell muses what would happen if this policy was extended.
Does the Defense Department plan to arrest all the other adulterers it learns about? Will the US soon be using its amazing new arrest-anybody powers to imprison Internet-browsing soldiers in Iraq, adulterous congressmen, and at least one former Director of Central Intelligence?
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