A Cautious Man
March 21, 2004
 
Are You Tough Enough to Play the Game They Play?
The government has tired of its efforts to ruin Captain James Yee's life, so they came up with a lame excuse to drop the charges, while still trying to make him look guilty.

Sorry to have such a jaundiced view of the facts of this case. In the short time, and limited posts, on this site I've posted thoughts about this accused Muslim army chaplain here, here, here, and here. I won't repeat everything I've posted previously, but I do think that there are some serious questions which still need to be answered:

Why was he ever detained? This is how the Washington Times described the basis for his arrest:
The Bush administration decided to arrest Army Capt. James J. Yee because it feared he would reveal information that could aid terrorists and endanger the lives of military guards at the Guantanamo Naval Base in Cuba, a law-enforcement source said.
Really? In addition it was reported that the "highest levels" of government made the decision to detain and arrest him. It's interesting to note that testimony in his preliminary hearing indicated that he was stopped only after he had traveled to the mainland:
Special Agent Sean Rafferty, who works as a U.S. Customs inspector in Jacksonville, testified he was tipped off to watch for Yee at the airport when he returned from the Cuba base.

Rafferty said he stopped Yee and found two pocket-size notebooks, a paper on Syria and a typed list of names and numbers with the top torn off in the backpack Yee carried off the plane.

"It was determined the documents were of interest to national security," Rafferty said during a conference call to the courtroom.

He acknowledged none of the material was marked "secret" or "classified," and defense lawyer Eugene Fidell said the paper on Syria was part of Yee's work as a graduate student.

Rafferty refused to say who in federal law enforcement told him to look for Yee.
At the time, it was claimed that he had documents "that a chaplain shouldn't have," and ties to radical Islamists. Now, of course, we know that the government was never able to establish exactly what the "classified" nature of this information was. So, to sum up, the "highest levels" of government wanted this guy arrested, so they search him when he returns to the U.S., claim that the documents he is carrying are classified, and therefore he's a spy!

Why the adultery charge? This was something which the government learned about after his arrest, apparently. The only evidence given was immunized testimony from the other alleged party, who held a rank equivalent to Captain Yee's. Even if Captain Yee was cheating on his wife (a bad thing), the Uniform Code of Military Justice (UCMJ), the military's own rules, do not call for prosecution of this conduct, without more. The elements of the offense are set out in Article 134 of the UCMJ:
(1) That the accused wrongfully had sexual intercourse with a certain person;
(2) That, at the time, the accused or the other person was married to someone else; and
(3) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces. .
The fact that private, apparently unknown conduct between two officers serving in different units would not normally be prosecuted is indicated in an Executive Order issued by President Bush in 2002, adding explanations to the UCMJ, including guidance for adultery prosecutions:
To constitute an offense under the UCMJ, the adulterous conduct must either be directly prejudicial to good order and discipline or service discrediting. Adulterous conduct that is directly prejudicial includes conduct that has an obvious, and measurably divisive effect on unit or organization discipline, morale, or cohesion, or is clearly detrimental to the authority or stature of or respect toward a servicemember. Adultery may also be service discrediting, even though the conduct is only indirectly or remotely prejudicial to good order and discipline. Discredit means to injure the reputation of the armed forces and includes adulterous conduct that has a tendency, because of its open or notorious nature, to bring the service into disrepute, make it subject to public ridicule, or lower it in public esteem.
But, this conduct was unknown, and only disclosed as part of the prosecution of Captain Yee. Public exposure of this alleged affair has certainly damaged Captain Yee's reputation; can it honestly be said that prosecution of Captain Yee was called for, under the military's own code?

And pornography? We'll never know exactly what it was that was considered pornographic. As was reported with respect to the only witness on this issue:
Also testifying was Warrant Officer Jennie Callahan with the Army Computer Crimes Unit in Washington, who said she found evidence that Yee's computer hard drive had been used to access adult Web sites.

She said she considered some of the images on the hard drive pornographic.

"I'm not labeling all those pictures on that disk as pornographic," she said. "I've been in the Army 10 years, and there's not a lot that I consider pornographic."
Now Captain Yee is "free", but with an official statement which makes him look guilty:
U.S. Army Maj. Gen. Geoffrey D. Miller, Commander of Joint Task Force Guantanamo, dismissed all charges related to the alleged mishandling of classified information pending against Army Chaplain James J. Yee, ending an investigation that began with his apprehension at the airport in Jacksonville Naval Air Station, Fla., in September 2003. Citing national security concerns that would arise from the release of the evidence, Miller decided to drop these charges. Miller made his decision after consultation with government lawyers and intelligence officials. Although Miller considered Yee's offer to undergo a debriefing in exchange for the government dropping the charges, granting him immunity and supporting his resignation, relevant law enforcement agencies could not support Yee's request for immunity.
So, some more questions. If they can't prosecute Captain Yee for mishandling classified information (becuase that would disclose the information), does that mean that they can't prosecute anybody? What "relevant law enforcement agencies" wanted the Army just to drop this, and are they the same ones who told Special Agent Rafferty to detain Captain Yee in the first place? And finally, will anybody in the news media bother to pursue any of these questions?

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