By Jacob Sullum
March 24, 2004
By Jacob Sullum
When Capt. James Yee was arrested last September, it was easy
to assume he was a spy. A Muslim chaplain serving suspected terrorists imprisoned
at Guantanamo Bay, he'd been caught traveling with "secret data."
Anonymous government officials told the press Capt. Yee might be part of
a spy ring at the military base. The cloud of suspicion was so thick even
people who knew Capt. Yee well could not see clearly. His high school wrestling
coach, with whom Capt. Yee had kept in touch over the years, told the New
York Times: "I have to believe in my kids. But if that religion has
brainwashed him to change his thinking, then maybe I am wrong." The
coach's doubts illustrate the tremendous power the government wields when
it accuses someone of a crime, especially a crime involving national security
at a time of heightened concern about foreign threats.
Capt. Yee's case, which began with accusations of espionage
and devolved into an indictment of his sexual habits, shows the importance
of restraining that power, especially when people are most inclined to give
it free rein. Based on a list of anticipated charges that included mutiny,
sedition, espionage and aiding the enemy, Capt. Yee was held in solitary
onfinement at the naval brig in Charleston, S.C., for 76 days. Military
prosecutors intimated to his lawyers he might face the death penalty. But
when Capt. Yee was officially charged a month after his arrest, the Army
did not accuse him of betraying his country. Instead, it said he had mishandled
classified material by taking it home and transporting it "without
the proper security containers or covers" - an offense usually punished
with a slap on the wrist.
In late November, the government released the man it had portrayed as a
grave threat to national security and let him return to duty at Fort Benning,
Ga. In a desperate attempt to beef up their indictment, prosecutors tacked
on charges of adultery, based on a two-month affair Capt. Yee had with a
female lieutenant at Guantanamo, and conduct unbecoming an officer, based
on pornography that investigators found on Capt. Yee's government-issued
laptop computer. Mortifying as those revelations were to Capt. Yee and his
family, they should have embarrassed the prosecutors even more. At a preliminary
hearing in December attended by Capt. Yee's wife and their 4-year-old daughter,
the first witness was the woman with whom he had an affair, who was asked
how often and where they had sex. Later, "an Army computer forensics
expert" testified she had found hundreds of dirty pictures on Capt.
The only testimony that had anything to do with national security
came from a customs inspector who said he had been tipped Capt. Yee might
be carrying classified material when he arrived at the Naval Air Station
in Jacksonville, Fla. Inside Yee's backpack, the inspector found a typed
list of prisoners' names and two little notebooks in which Capt. Yee had
written. After Capt. Yee's attorneys complained the government still had
not formally reviewed the material to determine whether it was in fact classified,
the hearing was postponed, and it has been delayed repeatedly since then.
By the time of the hearing, it had become clear prosecutors were vindictively
pursuing a man who had been erroneously identified as a spy, compounding
the government's mistake instead of having the courage to admit it. Now
it appears they have reconsidered. On Friday, the U.S. Southern Command
announced the Army was dropping all charges against Capt. Yee, although
he still may receive administrative punishment for the adultery and pornography
offenses. It seems Capt. Yee won't receive the one thing he clearly deserves:
an apology. But the case can still have a positive impact by demonstrating
the risk of rushing to judgment and the need to preserve an open, adversarial
process for determining guilt. Reporting on Capt. Yee's arrest, the New
York Times noted that the brig where he was sent also has been used to hold
suspects designated as "enemy combatants." In two cases the Supreme
Court will hear this spring, the Bush administration maintains such prisoners
can be held incommunicado and indefinitely, without charge or legal representation.
"But Captain Yee's case is unlikely to be handled that way," the
Times reported. If it had, Yee might still be regarded as a spy rather than
Jacob Sullum is a nationally syndicated columnist.
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