washingtonpost.com
Guantanamo Spy Cases Evaporate
Chaplain and Arabic Translator Are Now Facing Only Lesser Charges
By John Mintz
Washington Post Staff Writer
Sunday, January 25, 2004; Page A03
Last September, top officials of the Navy prison at Guantanamo Bay, Cuba, told a military judge in Florida that the prison's Muslim chaplain, Army Capt. James Yee, would soon be charged with mutiny, sedition, espionage, spying and aiding the enemy -- crimes that could lead to his execution.
Based on those allegations, Yee was held in solitary confinement in a Navy brig in South Carolina for 76 days. But authorities never charged him with any of those offenses. Instead, Yee will face much less serious charges, such as mishandling classified materials and adultery, when the case against him resumes at a hearing at Fort Benning, Ga., scheduled for Feb. 4.
At the same time Yee was being detained, Air Force Senior Airman Ahmad I. Halabi, who worked as an Arabic translator at Guantanamo Bay, was also in solitary confinement 3,000 miles away, held in California on charges of espionage and aiding the enemy. In time, the most serious of those allegations have been withdrawn as well.
Some experts on military law and the men's lawyers say the prosecutions of Yee and Halabi have been riddled with inconsistencies and oddities that cast doubt on the government's original fears that a spy ring was operating in the high-security prison for alleged al Qaeda and Taliban fighters.
"I find it difficult to believe professional prosecutors are proceeding with these two cases in this manner," said Gary D. Solis, a former Marine Corps prosecutor who teaches the law of war at Georgetown University. "The ineptitude at each step of the proceeding is amazing. . . . It seems there's been investigative overreaction in both cases."
Even now, prosecutors have not made final determinations that some of the documents Halabi was charged with possessing were, in fact, classified -- and, if they were, what level of security applied to them. As a result, his lead civilian attorney, Donald G. Rehkopf Jr., said he has only a hazy picture of why his client was arrested last July.
A similar review of documents in the Yee case was finished only in recent days.
In an unusual episode last month, military investigators raided offices used by Halabi's military lawyers at an Air Force base in California, temporarily seizing one computer and copying its hard drive in a search for evidence against the airman.
Rehkopf protested the search in a letter to Air Force officials, calling it "bizarre" and "a conscious disregard of the attorney-client relationship."
"We are imploring the senior leadership of the Air Force to get this case under control," the letter said.
The Air Force is refusing to comment on the case of the Syrian-born Halabi, 25, who is accused of illegally possessing letters from detainees and other documents about the prison at Guantanamo Bay.
Officials at the U.S. Southern Command, which oversees Guantanamo Bay, have commented on Yee. They say they are demonstrating caution and fairness in their treatment of him. "We've taken a methodical, well-thought-out approach in the case against Chaplain Yee," said Col. Bill Costello, a Southern Command spokesman.
Yee, who graduated from West Point and converted to Islam, faces two counts of mishandling classified material related to papers found on him when he was arrested in Florida after a flight from Guantanamo Bay last Sept. 10. He also has been charged with failing to obey an order or regulation; making a false official statement; conduct unbecoming an officer, for downloading pornographic material onto his laptop computer; and adultery with a female officer at Guantanamo Bay.
Halabi was originally charged last summer with 30 offenses, including espionage, aiding the enemy and other allegations based on searches of his Guantanamo Bay computer. But in the fall, 13 charges were dropped, including the most serious ones, which could have led to the death penalty. He still faces charges of mishandling classified material and attempted espionage involving an alleged plan, apparently never carried out, to pass information to someone in Syria.
Two other men have been charged with breaching Guantanamo Bay security. Ahmed F. Mehalba, a Muslim linguist who worked as a prison contractor, faces charges in a federal court of lying to investigators and mishandling classified data after secret files about the prison were found on his computer when he landed at Boston's Logan International Airport on a flight from Egypt. Army Reserve Col. Jack Farr, a senior officer in the Guantanamo Bay unit that interrogates detainees, was charged in November with mishandling classified material and lying to investigators after he flew from the base to Florida and classified papers were found in his bags.
In the Yee and Halabi cases, prosecutors have handed over batches of papers to defense lawyers, only to demand their return. In each case, prosecutors said the documents had mistakenly been designated as unclassified. Officials also provided other papers to the defense, saying they were classified but releasable, then later retracted that description, saying the documents were unclassified, defense attorneys said.
"If ranking military officers don't know what's classified, how is a 25-year-old supply clerk totally inexperienced in classification supposed to know?" Rehkopf said.
Officials have refused to say what provoked investigations of Yee and Halabi. But knowledgeable sources said suspicions about them began last year, around the time Halabi started helping Yee prepare a community center on the base for Muslim prayer services each Friday. Halabi also had dinner twice at Yee's quarters with him and other Muslim service members, sources said.
Around the same time, Halabi -- whose job was translating letters between detainees and their families -- was allegedly sending some of the letters he translated to undisclosed recipients via e-mail and to a Web site he maintained.
Halabi also was corresponding with the Syrian Embassy to obtain a visa to travel there for his wedding, an event he had to reschedule repeatedly because his military tour was extended a number of times. Sources say investigators feared there was some connection between Halabi and Yee because each had ties to Syria. Yee had spent four years there in the mid-1990s training as an imam and is married to a Syrian woman.
On July 23, when he arrived at a naval base in Jacksonville, Fla., for the trip to Syria, Halabi was arrested secretly and interrogated for 24 hours without sleep. The next month he was preliminarily charged with the 30 counts that included aiding the enemy.
On Sept. 10, when Yee was leaving Guantanamo Bay to return to his home in Washington state, Guantanamo Bay officials investigating him theorized he had classified material with him. They tipped off customs officials in Florida.
Customs agent Sean Rafferty testified in a hearing last month that he found in Yee's backpack four notebooks and notepads, a variety of other printed papers, and a typed, official-looking list of names of detainees and interrogators, with numbers by the names. "It was determined the documents were of interest to national security," Rafferty testified.
But Yee's lawyers said that among the papers Rafferty found "suspicious" were Web pages on Middle East history that Yee had downloaded for a course on international affairs he was taking at Army expense at Troy State University, which had a satellite program at Yee's home base of Fort Lewis, Wash.
Military officials said Yee was evasive at the airport. When asked whether he had luggage with him, Yee replied no. But his lawyers said that was a misunderstanding: His suitcase was not in his possession at that time. In any case, the luggage contained no documents, while the backpack he had with him contained the papers that generated officials' suspicion, indicating Yee made no effort to conceal anything, his lawyers said.
Yee was arrested on suspicion of various crimes but not formally charged. But in documents filed with the military magistrate who reviewed his detention, top Guantanamo Bay officials said that among the "offenses charged" against Yee were mutiny, sedition, espionage, spying and aiding the enemy. On Sept. 12, the magistrate ordered him held in the brig at a Navy base in Charleston, S.C.
On Oct. 10, Yee was charged with two counts of mishandling classified material because of the papers found on him in Jacksonville -- but there was no mention of the more serious charges.
His lawyer, Eugene R. Fidell, wrote a scathing letter to President Bush in November pointing out that cases involving accusations of mishandling classified material almost always end up with administrative slaps on the wrist, not solitary confinement.
Yee "is being treated as if the original laundry list of charges [such as mutiny] was the legal basis for his confinement," Fidell wrote. "He is being treated as if he were an enemy combatant rather than a commissioned officer."
On Nov. 25, officials freed Yee but also charged him with other offenses, including the relatively rare count of adultery because of a sexual affair investigators discovered during their probe. Fidell said adding these counts was vindictive.
Costello, the Southern Command spokesman, acknowledged that officials had the choice of not charging Yee with adultery. But Yee "is supposed to be a moral compass" for soldiers, Costello said. "If adultery goes unpunished, that sends a message."
Yee's lawyers also noted several medals and citations awarded during his stint in Cuba. "Yee's strong sense of professionalism, maturity and dedication to duty," read one citation last July, "reflected credit upon himself, the U.S. Army and the Department of Defense."
Halabi, meanwhile, remains in jail pending a yet-to-be-scheduled court-martial in California. In recent months, the most serious charges against him have been dropped, including using the computer to communicate with "the enemy," a term never defined. Among the remaining charges are two for attempting to commit espionage, apparently for allegedly planning to send prisoners' letters to someone in Syria.
His attorneys said Air Force officials issued orders months ago that bar Halabi from speaking Arabic in prison, even to his non-English-speaking relatives. The defense lawyers expressed puzzlement at prosecutors' later claim that no such order was ever given, saying they have it in writing. Halabi still must use translators to speak to his relatives, the attorneys said.
Halabi's attorneys have asked to interview a number of detainees whose names they provided to authorities. But officials have denied the requests, demanding to know how they learned the prisoners' names and contending that it may have been through unauthorized disclosure. Rehkopf, Halabi's lawyer, said it was from the Internet.
Halabi's and Yee's attorneys say their clients have been treated more harshly than Farr, a non-Muslim charged with similar offenses. Farr voluntarily returned to Cuba to face the charges and continues to serve in his old interrogation unit, officials said.
© 2004 The Washington Post Company |
