Dr. Lee and Captain Yee

by CHRISTOPHER BRAUCHLI

Shoot first and inquire afterwards and if you make mistakes, I will protect you.

Hermann Goering, Instructions to Prussian police

Rhyming last names is not all the two men have in common. Each man, though innocent of the initial charges, gave up something to the justice system. Wen Ho Lee gave up his job and almost a year of his life to solitary confinement in a New Mexico jail. Captain Yee gave up three months to solitary confinement in a naval brig and, very possibly, a marriage. The prosecution in both cases lost nothing more than face.

Wen Ho Lee, a former Los Alamos scientist, was arrested in April 1999 and charged in a 59-count indictment with mishandling highly classified national defense information and violating the Atomic Energy Act and the Federal Espionage Act by secretly moving vast quantities of classified nuclear weapons data from a secure computer at Los Alamos National Laboratory onto an "open" computer system. His computer allegedly had top-secret and "code-word" files about a wide range of CIA activities, including presidentially approved covert action programs.

After Mr. Lee was indicted, the government discovered that the material Mr. Lee had taken was not marked secret or confidential as the indictment alleged. To cure this fatal defect, the prosecution reclassified as secret and confidential all the information that Dr. Lee was alleged to have mishandled, thus saving the indictment.

When Dr. Lee sought release from jail pending trial, Robert Messemer, an FBI agent, lied to the federal judge who was considering whether or not to release Dr. Lee on bail, resulting in Dr. Lee’s continued incarceration. When the lies were disclosed at trial, Mr. Messemer said to the judge that he never intended "to mislead you or anyone in this court or any court." He described his lies as "simple, inadvertent error."

Dr. Lee was tried, found innocent on all counts and released from confinement. The case was over and so was Dr. Lee’s career as a government scientist.

Captain Yee is a West Point graduate and who converted to Islam. He was assigned to Guantanamo Bay as a chaplain in late 2002. Upon returning to the United States in September 2003 for a family visit, Captain Yee was arrested in Jacksonville on suspicion of espionage. Federal agents said he had sketches of the military prison to which he was assigned and also had documents concerning captured Taliban and al-Qaida fighters to whom he ministered. Initial reports about his arrest, many citing unidentified sources, said he was being held on suspicion of sedition and espionage. One spokesman hinted that his activities might qualify Captain Yee for the death penalty.

One month after Captain Yee’s arrest, suggestions of treason and espionage were replaced by charges that Captain Yee had disobeyed a general order by taking classified material home and transporting classified material without proper security containers. Unlike the possibility of a death sentence, each of those charges carries a maximum jail term of two years.

Notwithstanding the relatively minor nature of the charged offenses, Eugene Fidell, his lead attorney, in a letter to President Bush, described the conditions in which the captain was held pending trial. He said Captain Yee was in solitary confinement 23 hours a day with only one hour of solitary exercise and was required to wear leg and hand irons when leaving the cell. Brig personnel refused to recognize his status as an officer, would not provide him with a liturgical calendar or prayer rug and refused to tell him the time of day or the direction of Mecca.

On December 8, Captain Yee’s pre-trial proceedings began with his wife and four year old daughter in the courtroom. The purpose of that hearingwais to let the presiding officer hear the evidence and decide whether to dismiss all charges, subject the defendant to a general court-martial or do something in between.

The first witness for the prosecution was Lieutenant Karyn Wallace. She did not testify about the nature of the materials found in Captain Yee’s computer or the container in which they were placed. That is because by the time the trial began the charges against Captain Yee had been modified once again. On November 26 Captain Yee was charged with committing adultery and storing pornography on his government computer in addition to mishandling classified documents.

Lieutenant Wallace identified photographs showing her and Captain Yee embracing and described their relationship as sexual. Asked what that meant she said "We had sex together." She said that had happened about 20 times. In return for testifying against her former lover, Lt. Wallace was granted immunity.

The hearing ended after one day because prosecutors wanted additional time to review and classify documents taken from Captain Yee when he was arrested. The four months that elapsed between arrest and trial was, they apparently discovered at the last minute, inadequate to enable them to proceed.

The hearing resumes January 19, 2004. Captain Yee is free and ministering to people in the military pending its resumption. The holidays have been ruined for everyone. The prosecution team will spend the holidays reviewing files to see if they can save the part of the prosecution that doesn’t pertain to smut. The Yees will have to review their marriage to see if it can be saved. The ends of justice have presumably been served although it’s not clear how.

CHRISTOPHER BRAUCHLI is a Boulder, Colorado lawyer. His column appears weekly in the Daily Camera. He can be reached at: brauchli.56@post.harvard.edu

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