- The Washington Times - Thursday, December 11, 2003

The Army has suspended a pretrial hearing for Capt. James Yee, a Muslim chaplain, while the military does something it should have done before the proceeding — screen evidence for classified material.

The Article 32 investigative hearing began this week at Fort Benning, Ga. Capt. Yee stands charged with mishandling classified material, disobeying a direct order, lying, adultery and storing pornographic material on a government computer.

Maj. Gen. Geoffrey D. Miller, commander of Task Force Guantanamo, signed an order Wednesday suspending the hearing for 42 days. Capt. Yee had worked as a Muslim cleric at the U.S. Naval Base Guantanamo Bay, Cuba, tending to the religious needs of al Qaeda and Taliban operatives held at the detention center.

His civilian attorney, Eugene R. Fidell, said yesterday that Gen. Miller delayed the investigation after it was revealed in court that the government had yet to follow a required step under its own regulation. It had failed to subject all evidence to a security review to certify what is classified and what is not, he said.

Mr. Fidell said the military should use the pause to reconsider the case and drop the charges. “It’s my sincere hope our national leaders will take advantage of the opportunity to take a fresh look at this matter,” the Washington defense lawyer said.

But in his order, Gen. Miller said the proceeding will resume.

“Once the formal classification review has been completed and the evidence in question is cleared for release to defense counsel, then the defense shall have access to the material and the investigation shall continue,” the general wrote. “The Article 32 investigation shall resume no later than 19 Jan. 2003.”

The delay is just the latest twist in a criminal case that began as a major espionage investigation, but now centers on information Capt. Yee was carrying when he got off a plane on Sept. 10 in Jacksonville, Fla., to begin a vacation.

Capt. Yee, a West Point graduate who underwent religious training in Damascus, Syria, before re-entering the Army, was stopped and searched by a customs agent. The agent testified at the Article 32 investigation that he had been tipped to detain the officer, but he did not say by whom. A government source told The Washington Times that officials had been watching the cleric as he worked at the detention center. The agent testified he confiscated “suspicious” documents from Capt. Yee.

After questioning Capt. Yee over several days, the Army took him before a military magistrate. This is the point at which the case took a major turn. A prosecutor accused Capt. Yee of espionage and spying, and asked the magistrate to order the officer held in prison while an investigation ensued. The accusations of spying and espionage were spelled out by the government in a confinement document.

The magistrate agreed to the government’s request. Capt. Yee was moved to the Navy’s large brig in Charleston, S.C., where, Mr. Fidell said, he was held in solitary confinement. During the confinement review hearing, a prosecutor mentioned to Capt. Yee’s military defense attorney that the government might seek the death penalty. He sat in the brig for 76 days.

Mr. Fidell later wrote to President Bush, seeking his client’s release, but by the time the letter was in the mail, the Army already had decided to release Capt. Yee. He was reassigned to Fort Benning, where his hearing will resume next month. No formal espionage charges were filed. Instead, the documents on his person formed the bases for charging him with mishandling classified documents.

As the hearing began this week, the government did not provide its theory of the case.

“The government does not take an ad out when they abandon a position,” Mr. Fidell said. He declined to answer questions about the documents.

A government source said the material included the names of detainees and drawings of the compound. The Pentagon has withheld the detainees’ identities to keep al Qaeda planners in the dark about who has been captured.

Mr. Fidell maintains his client’s innocence and repeatedly criticizes the government’s handling of the evidence. He said officials dropped off a packet of material at his house the day after Thanksgiving. The next Tuesday, officials came to his office unannounced and demanded 15 pages from the packet. “We now have less evidence than we had the Friday after Thanksgiving,” he said.

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