Published on Saturday, November 29, 2003 by the Boston Globe
Chaplain is Called Victim of Hysteria
by Charlie Savage
WASHINGTON -- Army Captain James "Yousef" Yee spent 76 days this autumn locked up in a Navy brig alongside so-called "enemy combatants" who are suspected of aiding Al Qaeda and threatening national security.
Yet the actual charges turned out to be far less serious. In mid-October, he was formally accused of improperly handling classified material -- by taking it home and transporting it without its proper container. On Monday, when he was released from the brig, the government added charges of adultery, making a false statement, and downloading pornography on his government computer.
Now, the distance between the initial reports and the comparatively trivial charges has provoked outrage by Yee's defenders and concerns by some legal specialists that Yee may be a victim of hysteria over national security.
Even as a military spokesman suggested that more charges could still be brought, some civil libertarians expressed concern that the government's decision to hold Yee in maximum security, alongside enemy combatants, may have left him with no way to clear himself of the taint of treason. And the long period of holding Yee may have led prosecutors to bring the adultery and pornography charges as a way of justifying their decision to arrest him in the first place.
"The danger of an all-encompassing war on terrorism is when you pick up someone on suspicion alone, and you can't confirm your suspicion, you end up charging him with offenses like adultery and pornography, which seem to have little to do with homeland security," said Harold Koh, former assistant secretary of state for human rights in the Clinton administration.
"Would he have been charged with adultery and pornography if he had not first been picked up on suspicion of affiliation with Al Qaeda? I don't think so," Koh said. "It sounds like he has been charged with a crime that he would never have been charged with, but for a desire to arrest him on charges that proved unfounded."
Yee's lawyer, Eugene Fidell, who is hoping the charges will be dropped, said that Yee's reputation has been destroyed. He compared his client's predicament to that of Richard Jewell, the security guard who was falsely accused of the 1996 Olympics bombing, and Wen Ho Lee, the Los Alamo National Laboratory scientist who was arrested on espionage charges in 1999 only to be found not guilty after months in solitary confinement.
"Will our society ever forget him or think of [Yee] other than the guy who was accused [of spying]," Fidell said. "I think that's indelibly attached to him now and I don't know how the government is ever going to make it up to him, or make up the fact that he spent 76 days in confinement over this. Some things are just irreparable."
Fidell said the military prosecutor has proposed holding a preliminary hearing as soon as Monday, though that will probably be logistically impossible.
A spokesman for the US Southern Command, which oversees the Guantanamo Bay prison, said the military has no control over what anonymous sources choose to tell a reporter. All it can be responsible for is what is said in official statements, which never accused Yee of spying for Al Qaeda.
"No [Department of Defense] official has said that Captain Yee and espionage were linked together," said Navy Lieutenant Commander Chris Loundermon. "As for unnamed government officials -- unfortunately there are lots of people out there who have their opinions on it, but they're unnamed and they're not giving an official statement."
Yee was arrested at a naval air station in Jacksonville on Sept. 10, but news of his detention was first broken by a Sept. 20 front-page report in The Washington Times. Setting the tone for the coverage that would follow, the newspaper cited an anonymous "law enforcement source" who said that Yee had been charged with "sedition, aiding the enemy, spying, espionage, and failure to obey a general order" and might be charged with treason, which could carry a life sentence.
In fact, he had not been charged with anything at that point. Numerous other media outlets who followed The Washington Times story got that part right, but remained suspicious. Other anonymous government sources were cited saying that Yee may have had a diagram of the prison facilities and a list of both detainees and their interrogators.
Asked for comment, several Washington Times editors referred the Globe to the reporter who wrote the original story. He did not return a voice mail left on his cellphone yesterday afternoon.
Although no one made an official public statement accusing Yee of being a spy, military officials have routinely brought up his case in the context of a review of security procedures at the base and the arrests of two former Guantanamo translators -- Senior Airman Ahmed I. al Halabi, who has been charged with espionage, and former civilian interpreter Ahmad F. Mehalba, who has been charged with carrying away classified information from Guantanamo. Both have pleaded not guilty.
Laura Donohue, of Stanford University's Center for International Security and Cooperation, said the military should not be able to escape responsibility for leaked stories so easily.
"To what extent is the government forming public opinion by leaking information, by making anonymous comments to reporters, and by taking certain steps that would lead reasonable people to conclude there were substantive concerns behind the anonymous allegations?" she said. "Trying to escape responsibility by saying, `Oh, we didn't officially hold a press conference and say this is our position about it' -- well, this is how it works."
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