Military Injustice

PAGE 2 OF 3

MILITARY INJUSTICE

     On October 10, 2003 the prosecution finally filed the charges against Yee. Instead of espionage and spying, however, they were for two counts of mishandling classified materials, each of which carries a maximum penalty of two years imprisonment and a dishonorable discharge. They were hardly the type of charges that would warrant pretrial solitary confinement and talk of "treason" and "execution". Yee's defense team sensed that the prosecution was moving away from earlier talk of espionage and sedition charges. Yet for two more weeks Yee was kept in solitary confinement under stringent conditions. His only contact with the outside world were two 15-minute calls a day.

     In late October Yee was allowed a visit from his wife. Huda had to leave without any idea of when her husband would be able to return home. The only thing she could cling to was the hope of making the seven-hour flight again a month later.

     "I don't know if he's coming back in one month, two months, a year, exactly when," Huda Yee told a reporter from the The Olympian in the first interview she granted since her husband's arrest. "But until I know, I'm waiting."

     The one thing Yee's wife felt certain about was her husband's innocence. "He's a proud American," she said. "He loves his country and he loves his job. He would never do anything to hurt his country or hurt his family." She was right on the first count but would learn later that she had been sadly wrong on the second.

Army Captain James Yee with daughter Sarah after 76 days of solitary confinement.

     By this time Yee was being represented by a team of five military and civilian lawyers, including Eugene Fidell. On November 24 Fidell wrote to President Bush asking for Yee's release. Yee was released the next day, ending 76 days of mostly solitary pretrial confinement. He was also served notice of four new charges against him: lying to investigators, two counts of using "a government computer to view and store pornographic images" and "wrongfully having sexual intercourse with Lieutenant Karyn Wallace, USN, a woman not his wife."

     "Mickey Mouse stuff," scoffed John Fugh, a retired Chinese American major general who once served as Judge Advocate General, the Army's highest legal officer. The prosecution requested another delay to allow Maj. Gen. Geoffrey Miller, top investigator at Guantanamo, to determine whether the documents Yee had been carrying were classified. If so, Yee would be subject to an Article 32 hearing as a preliminary step to a general court-martial. Some time later Miller would be blamed for the prisoner abuse scandal in Iraq.

     "The government has never produced the evidence that it believes was classified," said Fidell, "so I am somewhat at a loss. We were playing Hamlet without Hamlet here."

     Meanwhile Yee was granted a 30-day leave. He promptly returned to Olympia to be reunited with his wife and daughter for the first time since the previous November when he had begun his duty at Camp X-Ray.

     On December 8, 2003 the hearing finally began in a spartan courtroom in Fort Benning, Georgia. Yee's elderly parents, wife Huda and daughter Sarah were among the journalists and other spectators packing the back of the courtroom. Everyone expected the prosecution to lay out its case for the most serious charges against Yee. Instead it called Lieutenant Karyn Wallace to the stand to testify under immunity about her affair with Yee.

     Wallace testified that she had carried on a two-month affair with Yee during a summer posting as a health and safety officer. They had met at Guantanamo's bachelor officers quarters upon her arrival there in June of 2003. About a month later she and Captain Yee went from being close friends to having an affair involving "maybe 20" sexual encounters, including while on leave together in Orlando. Introduced into evidence were photos of Yee and Wallace hugging on the couch and a note Wallace had written containing the abbreviation "ILYB", short for "I Love You Back". The note had alluded to Yee's customary "KTLY" for "Know That I Love You." She knew Yee was married, Wallace admitted.

     At several points during Wallace's testimony, Huda Lee broke into tears. As Wallace left the stand the petite Huda, still holding Sarah, followed her husband's former lover outside the courtroom.

     "Excuse me," the normally demure Huda shouted at the San Diego-based Navy lieutenant. "You happy now? You broke up our family."

     Wallace stopped, turned and touched Huda's shoulder. "You'll have to talk to him," she said gently.

     Adultery is a violation of military law only if found to have been "prejudicial to good order and discipline." It was apparent from Lieutenant Wallace's testimony that her affair with Captain Yee had been kept secret, suggesting that it was unlikely to have produced breaches of order or discipline. "It is arguable that there was no crime," said Kevin Barry, a retired Coast Guard judge.

     Nevertheless, the prosecution move to call Karyn Wallace was a slap in the face that left Yee and his parents in a state of shock. Emotionally the hearing had been devastating, but legally it was a tacit admission that the prosection hadn't succeeded in building a meaningful case against a man who had once been threatened with execution for having been part of an important espionage network. On the second day of the hearing prosecutors sought a 41-day delay in which to re-examine the charges of mishandling classified information. The request was granted and the hearing was adjourned until mid-January.

     "To this moment, the government has been unable to confirm that anything connected to the case is classified," said Fidell shortly after that hearing. "This is a black page in the history of military justice."

     Fidell remained concerned about the permanent damage done to Captain Yee's reputation.

     "I am struggling with how Yousef will ever be able to shake off the stigma that arises from being publicly branded in those horrendous terms."

     After the hearing Yee spent several days with relatives in San Francisco before returning home to Washington. At Seattle-Tacoma International a joyful Yee embraced family members and lifted up daughter Sarah while greeting supporters carrying signs reading "Justice for Yee!"

     "I have believed from the beginning that the arrest of my husband was wrong and unjust," an indignant Huda Yee told reporters. "I am convinced the Army is acting in a cold and callous manner to hurt my husband and by extension, his family. If the military's goal is to railroad my husband, by the grace of Allah, they will fail."



     "I'm looking forward to sleeping in my own bed, a sharp contrast to where I was sleeping three weeks ago," Yee told reporters before leaving the airport for their Olympia apartment.

     In January the extended hearing date was taken off calendar at the prosecution's request. On March 19, 2004 prosecutors dropped all charges against Yee, an admission that they didn't have the goods for a criminal case. Prosecutors insisted, however, that it wasn't because Yee was innocent but only because it didn't want to publicize sensitive information.

     Yee's ordeal wasn't over. Three days later the Army chaplain was called in to receive a formal reprimand for adultery and downloading pornography.

     "They already had enough egg on their face to make an omelet or two," remarked Gary Solis, a Georgetown University military law professor and a former Marine JAG officer. "But no, they wanted to serve a table of 10." PAGE 3

1 | 2 | 3

“You happy now? You broke up our family.”