By Jacob Sullum
http://educate-yourself.org/cn/dueprocesstestimonial24mar04.shtml
March 24, 2004

Due Process
By Jacob Sullum

When Capt. James Yee was arrested last September, it was easy to assume he was a spy. A Muslim chaplain serving suspected terrorists imprisoned at Guantanamo Bay, he'd been caught traveling with "secret data." Anonymous government officials told the press Capt. Yee might be part of a spy ring at the military base. The cloud of suspicion was so thick even people who knew Capt. Yee well could not see clearly. His high school wrestling coach, with whom Capt. Yee had kept in touch over the years, told the New York Times: "I have to believe in my kids. But if that religion has brainwashed him to change his thinking, then maybe I am wrong." The coach's doubts illustrate the tremendous power the government wields when it accuses someone of a crime, especially a crime involving national security at a time of heightened concern about foreign threats.

Capt. Yee's case, which began with accusations of espionage and devolved into an indictment of his sexual habits, shows the importance of restraining that power, especially when people are most inclined to give it free rein. Based on a list of anticipated charges that included mutiny, sedition, espionage and aiding the enemy, Capt. Yee was held in solitary onfinement at the naval brig in Charleston, S.C., for 76 days. Military prosecutors intimated to his lawyers he might face the death penalty. But when Capt. Yee was officially charged a month after his arrest, the Army did not accuse him of betraying his country. Instead, it said he had mishandled classified material by taking it home and transporting it "without the proper security containers or covers" - an offense usually punished with a slap on the wrist.

In late November, the government released the man it had portrayed as a grave threat to national security and let him return to duty at Fort Benning, Ga. In a desperate attempt to beef up their indictment, prosecutors tacked on charges of adultery, based on a two-month affair Capt. Yee had with a female lieutenant at Guantanamo, and conduct unbecoming an officer, based on pornography that investigators found on Capt. Yee's government-issued laptop computer. Mortifying as those revelations were to Capt. Yee and his family, they should have embarrassed the prosecutors even more. At a preliminary hearing in December attended by Capt. Yee's wife and their 4-year-old daughter, the first witness was the woman with whom he had an affair, who was asked how often and where they had sex. Later, "an Army computer forensics expert" testified she had found hundreds of dirty pictures on Capt. Yee's computer.

The only testimony that had anything to do with national security came from a customs inspector who said he had been tipped Capt. Yee might be carrying classified material when he arrived at the Naval Air Station in Jacksonville, Fla. Inside Yee's backpack, the inspector found a typed list of prisoners' names and two little notebooks in which Capt. Yee had written. After Capt. Yee's attorneys complained the government still had not formally reviewed the material to determine whether it was in fact classified, the hearing was postponed, and it has been delayed repeatedly since then.

By the time of the hearing, it had become clear prosecutors were vindictively pursuing a man who had been erroneously identified as a spy, compounding the government's mistake instead of having the courage to admit it. Now it appears they have reconsidered. On Friday, the U.S. Southern Command announced the Army was dropping all charges against Capt. Yee, although he still may receive administrative punishment for the adultery and pornography offenses. It seems Capt. Yee won't receive the one thing he clearly deserves: an apology. But the case can still have a positive impact by demonstrating the risk of rushing to judgment and the need to preserve an open, adversarial process for determining guilt. Reporting on Capt. Yee's arrest, the New York Times noted that the brig where he was sent also has been used to hold suspects designated as "enemy combatants." In two cases the Supreme Court will hear this spring, the Bush administration maintains such prisoners can be held incommunicado and indefinitely, without charge or legal representation. "But Captain Yee's case is unlikely to be handled that way," the Times reported. If it had, Yee might still be regarded as a spy rather than an adulterer.

Jacob Sullum is a nationally syndicated columnist.

http://www.washingtontimes.com/commentary/20040323-091220-3271r.htm