'He
Is Not Guilty And
He Is Not Innocent'
By Oliver Burkeman
30 March, 2004
The Guardian
When Guantánamo
chaplain Captain James Yee was arrested allegedly with secret documents
about the prison, he was threatened with execution and branded a traitor.
So why after 200 days in jail was he only charged with adultery and
quietly released? Oliver Burkeman on a strange and troubling tale from
the new American era of homeland security
Captain James Yee
became a prime target in the war against terror one morning last September,
although nobody deemed it particularly important to inform his wife,
Huda Suboh, who drove to an airport outside Seattle later that day to
meet a plane her husband had never actually boarded. Yee had been due
home on leave from his job as a Muslim army chaplain at Guantánamo
Bay, but several days would pass before Suboh found out why he never
showed up. He had been arrested and detained en route, suspected of
espionage and aiding America's enemies. According to military officials,
a search of his bags had revealed pages and pages of classified information
- detailed maps of the base, diagrams of the cells, and notes on individual
inmates. The implication was clear. Yee was up to no good, and may have
been plotting a jailbreak of barely comprehensible audacity.
Falls from grace do not come much more precipitous. Despite their differing
faiths, Yee, now 36, had been the answer to George Bush's prayers: a
Chinese-American convert to Islam, he was regularly wheeled out in media
interviews as living proof that Washington was not at war with Muslims.
("When I go into the field," he told one reporter, "I
have a copy of the Koran, and next to it, a copy of the US Constitution.")
Now the Guantánamo chaplain seemed to have confirmed the worst
anti-Islamic prejudices, and imperilled his country at the same time.
He was detained for months in a navy brig, spending a large proportion
of the time in solitary confinement and shackled in leg-irons. Pentagon
lawyers threatened the death penalty, which was unsurprising, because
Yee's case was deeply alarming. It still is, but for different reasons.
Earlier this month, the army quietly dropped all criminal charges against
him; yesterday, he launched a legal battle to clear his name entirely.
The military has offered no evidence for its allegations that he was
a spy or a traitor, no apology - and no explanation for one of the strangest
and most troubling tales from the new American era of homeland security.
President Bush's
war was not Yee's first. A graduate of the prestigious West Point military
academy, he had already served in a battalion in Saudia Arabia during
the 1991 Gulf war. He was raised a Lutheran, but had drawn close to
Islam, and after the conflict he left the army to study the Koran in
Damascus for four years. "And not at some dinky school either -
a real high Koran school," says his mother, Fong Yee, in the unmistakable
tones of her Brooklyn birthplace. Speaking from her home in Springfield,
New Jersey, she is plainly boiling with rage. "And when he came
back, Jimmy was invited to the Pentagon. He was invited to rejoin the
army. I got a commendation letter from General Miller" - Geoffrey
Miller, who would later spearhead the prosecution of her son - "about
how well he was doing. I got that in March. And then in September they
arrest him."
Sent to Guantánamo
in November 2002, Yee appears to have thrown himself into his duties.
For 10 months, he was the only Muslim chaplain there, and in this role
he arranged for ritual calls to prayer to be broadcast over Camp Delta's
PA system. He checked that the inmates' dietary requirements were being
met, and led a handful of Muslim troops in prayer. "He was called
by the guards when there were problems," Father Raymond Tetreault,
a Catholic chaplain who served alongside him, recalled in an interview
with the Los Angeles Times. Yee would chide camp guards for insensitive
behaviour, Tetreault remembered. He would upbraid them, for example,
if they manhandled detainees' copies of the Koran. That seems to have
been the only outward indication of any tension between Yee and his
colleagues - until September 10 the next year, when he was stopped at
an air base in Florida in possession of documents "that a chaplain
shouldn't have", as one military official later put it to CNN.
By the time the
story became public, through a leak to the Bush-friendly Washington
Times newspaper, the seriousness of Yee's situation was evident. The
Washington Times had obtained documents listing the proposed charges
against Yee - espionage, spying, and aiding the enemy - and broke the
news that he had been sent to a navy jail at Charleston, in South Carolina.
At first, Yee was
considered to present a high security risk, and for many of his 76 days
in confinement he wore manacles and leg-irons. "That hell will
never be wiped out of his mind," says Fong Yee, who with her husband
Joseph eventually obtained the right to visit James, once. "There
was so much disrespect perpetrated on Jimmy. Nothing he could do except
pray and read the Koran."
But with Yee now
safely incarcerated, the army's zealous pursuit of the chaplain took
a baffling turn. When charges were finally brought, they did not include
espionage, but instead only a much lesser accusation of "mishandling
classified documents". Exactly how secret the documents were proved
to be somewhat mysterious, too: the Pentagon postponed Yee's trial five
times while it tried to answer this question itself. "Think about
it," says Gary Solis, a former prosecutor in the Marines who now
teaches law of war at Georgetown University in Washington. "They
charge him with having classified documents, but they don't know if
they're classified or not. Now, I don't want to slam our military too
badly in the foreign press, but does this not represent a certain lack
of competence?" The army itself did not seem to treat the seized
papers as if they posed a threat to national security. In the middle
of trial preparations, military prosecutors accidentally delivered some
of them to the home of Eugene Fidell, Yee's defence lawyer.
Before the status
of the documents could be determined, though, Yee received two further
blows from an unexpected direction: he was charged with adultery, and
with downloading pornography on to an army computer. (He denied both.)
At a hearing attended by his wife and their daughter Sarah, now four,
Yee listened as a female soldier, who had been granted immunity in exchange
for her testimony, detailed an alleged affair with him. In 20 years
as a military lawyer, Solis says, he had never seen an adultery accusation
used in this way: the archaic-sounding charge is almost always used
against soldiers to back up a far more serious one, such as rape. The
prosecution was beginning to look desperate. "It was just a very
shabby attack on Yee," Solis says. "They said, 'Hey, our case
has turned to crap, but oh wait, we have this.' They picked something
to embarrass and humiliate him that was entirely unrelated." Yee's
security status was downgraded, and he was eventually released, with
severe restrictions on his movements.
Back at their home
in Springfield, people were beginning to treat Yee's parents with suspicion,
but it was not in Fong Yee's nature to let them gossip undisturbed.
"You'd go to the mall," she says today, "and people would
recognise that I'm [south-east] Asian, and you'd hear them whisper about
how she looks like that chaplain who was a spy. I'd go stand behind
them in line and just put my nose in and say, 'You know, I feel like
you're talking about me. I wonder if you'd like some information about
the case?'" She believes the army was motivated by "paranoia"
about Islam, though Yee's religious choices had never been a family
issue. "I raised him a Christian. Big deal!" she says. "That's
what mothers are supposed to do: raise 'em something, and then they're
free to choose."
Earlier this year,
Fidell offered prosecutors a deal: drop the charges against his client,
and he would submit to a lie-detector test to prove he knew nothing
about espionage plots at Guantánamo. The army, Joseph Yee says,
"just didn't know how to back off and say they'd made a mistake".
And then, the Friday
before last, just short of 200 days since Yee was first detained, General
Miller authorised the army's southern command, based in Miami, to issue
a statement. It was released on a Friday evening, traditionally the
best time in the American news cycle to bury a story. The army would
not, after all, be presenting evidence relating to any maps, notes or
diagrams Yee was allegedly carrying. "Citing national security
concerns that would arise from the release of the evidence," it
read, "Miller decided to drop these charges."
The pornography
and adultery charges, meanwhile, were relegated to a non-criminal hearing,
which took place last week. He was found technically guilty, but the
army opted to impose none of the punishments within its power - docking
his pay, for example, or confining him to barracks for several weeks.
He received a written reprimand, and launched an appeal against it yesterday.
A case that had begun with the threat of the death penalty had ended
with the lightest ticking-off it was within the court's power to give.
"In the end,
they didn't even have the good grace to dismiss the charges in a gentlemanly
way," Solis says. "In law, we have a saying: bad cases never
get better, only worse. This case was bad from the beginning. And when
it turned worse, the lawyers didn't have the sense to back off. Instead,
they did whatever it took to make Yee look bad." Yee is not giving
interviews, but Fidell told reporters his client had been "the
victim of an incredible drive-by act of legal violence".
Lieutenant Bill
Costello, a spokesman for southern command, insists the Yee family are
"absolutely not" entitled to an apology. "The risk to
our national security and our operations at Guantánamo Bay and
the war on terror that would have been jeopardised, merely to prosecute
Chaplain Yee, was weighed - and overwhelmingly it was not worth the
risk." On the document-mishandling charges, Costello says, "He's
not guilty and he's not innocent."
"That's beneath
contempt as an official statement," says Fidell. "It shows
exactly the tin ear that has characterised the government's actions
in this case." (Pressed on the matter, Costello subsequently concedes
that Yee is indeed innocent until proven guilty.)
The terms of Yee's
reprimand allow him to return at once to resume his job at his home
base of Fort Lewis, in Washington state. When I spoke to Joseph Yee,
midway through the proceedings, he seemed to discount this as a possibility
for his son - even though leaving the army, he said, might break his
heart. But now there is an iron determination in Fong Yee's voice. As
usual, she says, she wouldn't seek to determine James's choices in life.
"But if it was me? I would stay in the army. You know, I liked
my job before you stepped on me. I loved it. So I'm not going to leave
it now. I would want the government to see what an honourable person
looks like. I would say: 'You made a big mistake. Now let me carry on
doing my job in a respectful and patriotic way.'"