Case Against Capt. Yee Starts to Smell Like a Train Wreck

Prosecutors Say It's Unclear Papers Chaplain Carried Were Classified. You can never be sure about a legal case you read about in the papers. There's so much texture and detail that gets lost in even the best newspaper report. That said, the case against Capt. Yee is giving off a certain stench of shambolic military CYA.

Would a white Christian chaplain get smeared with accusations of being a spy, get threatened with the death penalty, get locked up in solitary for three months, all over documents that the government isn't even sure are classified? As for the adultery charge, note that it's an offense only if it interfered with discipline—and apparently the affair was neither in the chain of command nor at all public. And by getting that testimony in first, then recessing the trial, the government manages a second round of strafe-and-smear.

Based on the news coverage, it sure looks like some combination of three things is going on: (1) Major government vindictiveness against someone who was effectively ministering to the Gitmo detainees and/or major government anti-Muslim bigotry [plus shades of Wen Ho Lee?]; (2) All that, plus the government is now throwing up whatever charges it can to cover up the fact that it smeared an officer without reason; (3) the prosecutors really think he's guilty but cannot prove it and/or are totally incompetent.

The information that is public makes the 'really guilty' story seem much the least likely alternative.

Note also that the key part of the original accusation wasn't giving secrets to the “enemy” nor even to the detainees at Guantanamo. Nor was the charge unlawful possession. No, as far as I can tell, the charge was carrying them around without the right security cover sheets….

Officials placed Captain Yee in solitary confinement for nearly three months in a naval brig while they completed their investigation into possible espionage. Maj. Scott Sikes, one of Captain Yee's defense lawyers, said on Tuesday that military prosecutors once told him that they might seek the death penalty in the case.

But when the investigation was completed last month and Captain Yee was released, the military did not bring any serious espionage case. Instead, he was charged with two counts of mishandling classified data, a reference to the materials found in his luggage, as well as four new charges with no apparent connection to security issues. Those included adultery and keeping pornography on his government computer, issues that prosecutors said came to their attention in the espionage investigation.

After repeated complaints from defense lawyers that they could not proceed on the issue of mishandling classified information if it remained unclear whether the documents were classified, the government acquiesced on Tuesday. Lt. Col. Mike Mulligan, one of the prosecutors, said the government had decided to conduct a thorough classification review of the documents.

Eugene R. Fidell, Captain Yee's civilian defense lawyer, called it disgraceful that his client had been kept in the brig for 76 days for possessing materials that the government still had not determined were classified. Mr. Fidell also said the military should be embarrassed to have tried to proceed with a criminal hearing on the charges without the determination.

The postponement of the hearing may create another problem for the prosecution. Mr. Fidell said that under military law charges were supposed to be brought within 120 days of the Sept. 10 arrest. The government has suggested that various factors have extended the time frame.

Major Sikes said he hoped the military would decide to drop the case. He said he believed that the military was pressing ahead as part of an unwise effort to save face over its initial miscalculation.

The case, he noted, “started out with allegations of being a spy.”

“There has since been a steady decline in the seriousness of the allegations,” Major Sikes said.

Major Sikes, a former military prosecutor, said, “This is the most incredible military proceeding this military counsel has ever seen.”

Followup reading: Justice for New Americans web site.

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