The case against James “Youssef” Yee, the Muslim army chaplain accused of espionage at Guantanamo Bay, further unraveled on Tuesday when the Army postponed its preliminary hearing into charges of espionage until next month and resorted, instead, to filing comparatively trivial charges of adultery (a criminal offense under military law) and storing pornography on a government-issue laptop. The preliminary hearing was to have determined whether Yee’s case should go to a court-martial. The postponement is the latest indication that the military has little or no case against him at all.
Yee, who ministered to the so-called “enemy combatants” held at Camp X-Ray, was arrested in September on suspicion of being part of a spy ring and he spent the next 76 days in a military brig, only to be released just before Thanksgiving. His release — and subsequent return to active duty — was the first sign that the Army wasn’t so sure about the extremely serious treason allegations against him, which stem from his allegedly having transferred classified documents to his Guantanamo quarters.
One might expect that the collapse of the military’s case against Yee will lead some on the right to reconsider their sweeping condemnations at the time of the chaplain’s arrest. Middle-east scholar and Bush-nominee for the National Institute of Peace, Daniel Pipes, wrote at the time: “It has been obvious for months that Islamists who despise America have penetrated U.S. prisons, law enforcement, and armed forces.”
The Boston Globe reports that the hearing’s testimony was more about sex than security:
“Prosecutors presented evidence Monday that Yee had an extramarital affair with a fellow officer last summer and kept pornography on his government computer. But they were unable to present much evidence of the charges that Yee mishandled classified information.
‘It concerns me that this case was raised to a level echelons above reality early on and it seems like we’ve been in steady decline in terms of the seriousness of the allegations since then,’ said [Army Major Scott Sikes, the military defense lawyer assigned to Yee]. ‘This is the most incredible military proceeding that I’ve ever been involved with.'”
Sikes also suggested that the reason the Army is pressing ahead with Yee’s case, and introducing other charges, simply to save face. “Early on, the government talked to this counsel that this case might even be a capital case,” Sikes said. “Now, here we are today dealing with alleged violations of a general order. It seems clear to the defense that our client isn’t a spy. He hasn’t aided and abetted the enemy, whoever the enemy is.”
Yet Yee was held in solitary confinement for over two months, most of it spent in leg irons and handcuffs. His hearing is scheduled to continue on January 14.
The Miami Herald describes the defense’s reaction:
“Co-defense counsel Eugene Fidell slammed as ‘a cynical ploy’ the military’s decision to convene the hearing Monday to air the lesser charges of adultery and pornography before conceding that the meat of the trial, the classified information portion, was not ready on Tuesday.
He also called the delay a ‘preposterous manipulation of the speedy trial rule,’ which says the military must bring a case to trial within 120 days of a soldier’s detention or drop the charges. Yee was arrested Sept. 10, about 90 days ago. The Jan. 19 date would mark about 130 days.
Specialists at the Southern Command in Miami are now determining which, if any, of the notebooks and other papers that Yee was carrying when he was arrested merit ‘confidential,’ ‘secret’ and ‘top secret’ designations, said Southcom spokesman Lt. Col. Bill Costello. He would not explain when the process began or why it was not complete three months after Yee’s arrest.”
Yee’s hearing was delayed after prosecutors discovered they may have given classified material to Yee’s civilian attorney, Eugene Fidell. The break only happened because the lawyer refused to continue the trial behind closed doors, fearing a violation of his client’s right to a public hearing. “It certainly never seemed to me that it was classified,” he said. “If they don’t know what’s classified, how is my client supposed to know? They’re the prosecutor and security guys. We’re just a chaplain.” In fact, the army now did exactly what Yee was accused of in the first place; mishandling classified information.
The New Jersey Star-Ledger reports that Fidell has labeled the case a ‘Catch-22’:
“Prosecutors said officials would first need to conduct a classification review — a process by which intelligence officials determine whether documents can be made public, or stamped with a range of labels such as secret or top secret. Such documents can only be viewed by people granted clearance by the military.
‘They proceeded as far as they could go. They believed when they got to this point they could go into the classified portion,’ said Maj. Ralph Tremaglio, a military lawyer acting as a facilitator for the hearing. ‘Until you have a release of those documents, the judge can’t see them, the prosecutors can’t see them, nobody can see them.’
Tremaglio said the process of determining whether documents are classified can last six to nine months.
Yee’s attorneys said they were baffled as to why the military had launched a hearing without first determining whether the most important evidence could be admitted. And they wondered how Yee could have been held for 76 days in the South Carolina brig 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.”
Yee’s lawyers said that the military’s request to delay the hearing showed that its case against Yee was in disarray and should never have been brought forward. Yee is not out of trouble yet, though. If he is convicted of all the charges, he could be sentenced to 13 years in prison. His lawyer Fidell said he hopes it won’t come that far. “I would hope the military-justice system would have a lot better use for its resources than to prosecute chaplains for adultery charges.”