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The Disturbing Case of Captain Yee

I’ve got a little list–I’ve got a little list

W. Gilbert, The Mikado

It’s just been one bit of good news after the other in the Yee household. First it was the news last fall that prosecutors no longer believed Captain James Yee was involved in a plot to infiltrate the naval base at Guantamo, a belief that had caused them to consider charging him with spying and aiding the enemy. That meant that contrary to what his lawyer had earlier been told, there would be no need for the U.S. government to seek the death penalty. Instead, Captain Yee was charged with transporting classified information without a required secure container and taking classified material home. Each of those charges carried a maximum sentence of two years confinement, a lesser penalty than death. Although those charges were not very serious, Captain Yee was placed in solitary confinement for three months while the sleuths who first hoped for the death penalty spent their time trying to figure out how to prove the lesser charges.

Concerned about his client’s confinement, Captain Yee’s lawyer sent a letter to President Bush advising him that the captain was locked up 23 hours a day, given one hour a day of solitary exercise, not given a liturgical calendar or prayer rug and not told the direction of Mecca or the time of day. He was also kept in manacles much of the time.

After three months of investigation, it was decided that the charges that had warranted keeping Captain Yee in solitary confinement couldn’t be proven. Defeated but not beaten, the prosecutors went from the sublime to the ridiculous. Their search of Capt. Yee’s computer produced two pieces of evidence of criminal misconduct under the Uniform Code of Military Justice. On November 26, 2003, to the charges of mishandling classified information were added the charges of storing pornography on a government computer and committing adultery.

On December 8 pre-trial proceedings began and at that trial Captain Yee’s wife and 4-year-old daughter were in the courtroom. It was there that Captain Yee’s wife heard testimony describing her husband’s relationship with Lt. Karyn Wallace. Lt. Wallace testified that she and the captain had sexual encounters about 20 times. As a reward for her testimony Lt. Wallace was granted immunity from prosecution.

At the conclusion of Lt. Wallace’s testimony the prosecution asked that the matter be continued until a future date so the prosecution could try to decide if the information on the computer was classified, something it had been unable to do in the months since his arrest.

Captain Yee’s father pointed out to an interviewer in February, 2004, that Col. Jack Farr an intelligence officer had been arrested on November 29, 2003 and charged with an offense similar to Captain Yee’s (not including the salacious stuff). Col. Farr was charged with “wrongfully transporting classified material without the proper security container on or around Oct. 11” and lying to investigators.

Col. Farr was not placed in solitary confinement. According to an Associated Press report he was permitted to continue on duty while his case was being investigated. Lt Commander Chris Loundermon, a spokesman for the U.S. Southern Command explained that Col. Farr was not placed under arrest because: “He didn’t present a flight risk and he was not likely to engage in any further serious misconduct.”

He did not say it was because of his religious convictions or his race. Col. Farr was Caucasian and Captain Yee was Chinese. Captain Yee’s father said it for him: “How much have you heard about Col. Farr’s case? What’s the story on him? Col. Jack Farr is Caucasian and not a Muslim. James is Chinese and a Muslim. This is ethnic and religious profiling.”

He may be right.

Late in the day on Friday, March 19, 2004, so as not to attract to much media attention, all charges against Capt. Yee were dropped. Maj. Gen. Geoffrey D. Miller said the case was being dropped because of “national security concerns that would arise from the release of the evidence” if the case went forward. Col. Bill Costello, a spokesman for the Southern Command said dropping the charges “seemed to be the prudent way to proceed.” Neither man explained how porn and adultery implicate “national security concerns”.

Commenting on this sad chapter in their lives to Leslie Knopp of Seattle’s KOMO radio station Capt. Yee’s wife Huda Suboh said: “It’s unfair what’s happened to us. You asked me if I am angry, of course I am angry. . . . We believe there is [sic] many tests from Allah, from the God. This is a big test from Allah, and we passed this test.”

The military justice system flunked it.

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