Article from The New York Times

January 4, 2004
By NEIL A. LEWIS and THOM SHANKER

WASHINGTON, Jan. 3 - As the Muslim chaplain at the military
base at Guantanamo Bay in Cuba, Capt. James J. Yee often
invited some of the Islamic members of the garrison to his
quarters for dinner on Friday after he conducted weekly
services.

On at least two occasions, his guest was Senior Airman
Ahmad I. al- Halabi, an Air Force translator at the camp,
where hundreds of captives from the Afghan war have been
held and interrogated for the last two years.

Airman al-Halabi was later arrested on several charges,
including suspicion of trying to pass secrets to Syria or
some other foreign government, a charge that has since been
dropped.

Military officials now say the dinners with Airman
al-Halabi, as well as Captain Yee's own connections to
Syria, set in motion the arrest, lengthy detention and
possible court-martial of Captain Yee, a tangled legal
episode that has proved awkward for the military.

First held on suspicion of being part of an espionage ring,
Captain Yee, 35, was in the end charged with the far less
serious crime of mishandling classified information. He was
also eventually charged with adultery and keeping
pornography on his government computer, both violations of
military law.

As arguments over the merits of those charges play out at a
preliminary hearing in Fort Benning, Ga., some military
officials continue to defend the prosecution, saying that
even technical violations of regulations that fall short of
espionage should not be ignored. Senior commanders in
charge of the case have declined to discuss it, saying that
doing so might jeopardize the prosecution.

But others have come to shake their heads over the case.

"This whole thing makes the military prosecutors look
ridiculous," said John L. Fugh, a retired major general and
onetime judge advocate general, the highest uniformed legal
officer in the Army.

General Fugh said the case ought to be brought to a speedy
end when a preliminary hearing resumes on Jan. 19. At the
hearing's conclusion, Col. Dan Trimble, the presiding
officer, is supposed to make a recommendation to Maj. Gen.
Geoffrey D. Miller, the commander of the Joint Task Force
that runs the Guantanamo camp, on whether to convene a
court-martial, dismiss the case or impose some
administrative penalty like a reprimand or discharge.

"It certainly seems like they couldn't get him on what they
first thought they had," General Fugh said, "so they said,
`Let's get the son of a gun on something.' "

General Fugh, who has played no role in the prosecution or
the defense of Captain Yee, said, "Adding these Mickey
Mouse charges just makes them look dumb, in my mind."

According to a senior Justice Department official, even the
Federal Bureau of Investigation, which was involved in
reviewing the documents that were seized from Captain Yee,
never thought much of the evidence against him.

A series of interviews over the last few weeks suggests a
number of factors that led the military ever deeper into
its prosecution:

6Reservists serving as counterintelligence officers at the
camp were apprehensive that they might miss some sign of
infiltration of the base but were relatively inexperienced
in how to handle such matters.

6There was confusion over which documents might be
classified and which were not. For example, defense lawyers
have questioned whether documents in the chaplain's baggage
were truly classified, and that is now being formally
reviewed.

6Some senior officers at Guantanamo were skeptical about
the wisdom of having Muslims and Arab-Americans involved in
the interrogations of prisoners and other camp operations,
and there was smoldering suspicion over what they were
doing when they met with one another, according to military
officials.

6An investigation intended to strengthen the initial
charges led instead into unrelated areas, and to the new
charges of adultery and of keeping pornography on
government computers.

The arrest of Captain Yee at the Jacksonville Naval Air
Station in Florida on Sept. 10 drew immediate attention,
presenting a strange new twist in the already contentious
accounts of the military's detention camp at Guantanamo.

Captain Yee, a New Jersey native of Chinese-American
heritage and a West Point graduate, converted to Islam
after leaving the Army, traveling to Syria for religious
training. Rejoining the Army as a chaplain, he was featured
in news articles, with the authorities at Guantanamo
eagerly showcasing him as evidence of their tolerance
toward the religion of the captives there.

It became evident that his arrest was part of a broader
crackdown at Guantanamo when the military announced that it
had previously arrested Airman al-Halabi, also on suspicion
of espionage. Airman al- Halabi had not only dined with
Captain Yee, once alone, but was a volunteer aide in the
chapel, a spare wooden building outside the prison
facility. The airman is from Syria.

On Sept. 29, the military arrested another translator,
Ahmed F. Mehalba, on similar charges of possessing
classified information about Guantanamo. Mr. Mehalba, a
civilian who had also dined at Captain Yee's quarters at
least once, was indicted in November on charges of
improperly gathering military information and lying to the
F.B.I.

Unnamed officials were quoted in news accounts suggesting
that they might have broken up an espionage ring trying to
infiltrate the base on behalf of hostile foreign powers.

But that theory has not borne out so far, most notably in
the Yee case. The military also recently dropped the most
serious charges against Airman al-Halabi, including aiding
the enemy, which carried a possible death sentence. Of the
original 30 charges, he still faces 17, including some of
attempted espionage. But his lawyer, Donald G. Rehkopf,
said the "guts of the case" were gone - the charges of
aiding the enemy and of using computers to transmit
information abroad.

The military also dropped a charge that Airman al-Halabi
had, without authorization, given pieces of baklava to some
detainees.

For his part, Captain Yee was placed in solitary
confinement in a naval brig for 76 days, much of the time
in leg irons and manacles. One of his lawyers, Eugene R.
Fidell, said that Captain Yee's jailers would not tell him
the time of day or the direction of the compass points to
help him pray to Mecca for most of that time. Mr. Fidell
said that Captain Yee was treated in a worse fashion than
the detainees at Guantanamo to whom he used to minister.

He was released before prosecutors opened their case
against him on Dec. 8 in a preliminary hearing at Fort
Benning. There was little discussion of national security
and more on the newly added sex charges before the hearing
was recessed for a formal determination of whether the
documents Captain Yee had were classified.

With Captain Yee's parents, wife and 4-year-old daughter in
the courtroom, Lt. Karyn Wallace testified at length under
a grant of immunity about how their friendship as neighbors
at Guantanamo grew into an intimate relationship. The
small, spare courtroom that once served as the stage of the
court-martial of Lt. William L. Calley Jr. for the My Lai
atrocities in Vietnam became the scene of a domestic
melodrama as Mrs. Yee angrily confronted Lieutenant Wallace
outside the door.

An officer who served at Guantanamo at the same time as
Captain Yee said in an interview that one likely cause of
his troubles was the relative inexperience of the officers
in charge of security at the base.

"They were all reservists and were completely afraid of
missing something and were quite jumpy," said this officer,
who is still in the service.

Indeed, one of these reservists ended up himself being
charged with the same offenses that were initially lodged
against Captain Yee, specifically "wrongfully transporting
classified material without the proper security container."
But the officer, Col. Jack Farr, a reservist in Army
intelligence, was not arrested or detained like Captain
Yee.

Colonel Farr was also charged with making a false statement
about his handling of classified documents when the matter
was being investigated.

A military spokesman would say only that each case is
different.

Yet in Captain Yee's case, a senior Justice Department
official said in a recent interview, civilian law
enforcement officials never believed that Captain Yee
presented any serious espionage problem.

A spokesman for the United States Southern Command based in
Miami said that General Miller had made the major decisions
about how to handle the case, including deciding to bring
the initial charges against Captain Yee, to have him
detained in the brig and to include the additional charges.

"This was all decided at the J.T.F. level only," Lt. Col.
Bill Costello, the spokesman, said in an interview. A
spokesman for Defense Secretary Donald H. Rumsfeld said
that the Yee case never reached his office.

General Miller initially agreed to an interview to discuss
how the case grew out of legitimate security concerns. But
he later said through a spokesman that military lawyers
advised him that it would be inappropriate to speak about
the case because it could be viewed as improper command
influence over the proceedings.

Although Captain Yee was said to have aroused suspicion by
falsely claiming he had no luggage when he arrived in
Jacksonville, Sean Rafferty, a customs inspector,
acknowledged in his testimony that the principal reason the
chaplain was searched was that law enforcement officials
had tipped off inspectors; the officials told the
inspectors that Captain Yee might be carrying classified
documents. It was not, the customs official said, a random
search, nor was it occasioned by any comments about the
baggage.

The chaplain was chaperoning a child from Guantanamo to
Jacksonville, and as he was taking the child to a building
at the airport to be met by another adult, he was asked
whether he had any luggage. When he answered that he did
not, he may have meant that he left it elsewhere, his
lawyers have suggested.

When his bags were searched, Mr. Rafferty said, they were
found to contain two green-covered notebooks, small enough
to fit in a shirt pocket and filled with Captain Yee's
writing. There was also a typewritten sheet, he said, which
appeared to have names of detainees, their identifying
numbers and possibly the names of their interrogators.

A dispute over whether these documents contained classified
information caused a 41-day postponement of the initial
hearing into the case, after defense lawyers complained
there had never been a formal determination of their
classification. Colonel Trimble said General Miller agreed
to a review of that question.

Colonel Costello and other military officials disputed the
idea put forward by Captain Yee's lawyers that the
classification review was to determine whether the
documents themselves were properly classified. While the
typewritten list, for example, did not carry any
classification stamp, Pentagon officials said that if the
information was secret, it might still be classified even
if copied in Captain Yee's own hand or printed in some
other form.

"At the time of his apprehension there is no doubt that the
information was classified," Colonel Costello said. "At the
time, nobody knew what was going on. Here's the Gitmo
chaplain with classified data and he's leaving the island
and that raised some suspicions."

The charge of adultery against Captain Yee has caused
particular consternation throughout the military legal
system.

Army officials said there had been about 60 cases of
adultery prosecuted in the last two years, always as part
of some larger set of criminal charges, like rape. The
military, in guidelines to commanders, suggests that
offenses like adultery become a particular problem when
they affect discipline and order, as in cases that involve
superior officers and their subordinates. This was not the
situation with Captain Yee and Lieutenant Wallace.

But some military officials said there was little choice
but to include those issues in the preliminary hearing at
Fort Benning, since they were uncovered as part of a
criminal investigation and commanders did not have the
discretion to ignore them.

If ordered to undergo a court-martial and convicted on all
six charges, Captain Yee could face up to 13 years in
prison.