Military Injustice
A Chinese American Muslim Army chaplain who carries on an adulterous affair with a Navy officer while ministering to al Qaeda prisoners at Guantanamo Bay, Cuba is bound to raise a few eyebrows. Unfortunately, James Yee also raised in the minds of military authorities some suspicions that rose to an operatic crescendo on September 10 of 2003. In one fell swoop Yee was stripped of his rights as an Army officer, a U.S. citizen and a human being. He was blindfolded, shackled and thrown into solitary confinement under conditions that approximated those endured by the prisoners to whom he had been ministering.
Why? "We know basically nothing about what got this all started," said Eugene Fidell, a civilian lawyer who, together with a group of Army lawyers, had represented Yee through his ordeal. Congressmen and investigators are still trying to get to the bottom of it. As good a place as any to start with is Yee's unusual background.
James Yee was born in New Jersey to a Chinese American World War II veteran. He graduated from West Point in 1990. In 1991 James converted to Islam and took on the Muslim name Yousef. Several years later he decided to become an Islamic Army chaplain and began working toward a doctorate in divinity. That entailed studies at the American Language Center in Damascus where he met Huda, a Syrian woman six years his junior. They married on October 1, 1998. She became a naturalized U.S. citizen. Yee became fluent in the Arabic language.
In May of 2001 James Yee, now a chaplain with the rank of captain, was assigned to the 29th Signal Battalion in Fort Lewis. The couple moved into an apartment in the neighboring community of Olympia, Washington. In the fall of 2002 the U.S. came under severe criticism for inhumane treatment of about 660 al Qaeda and Taliban prisoners being detained at Guantanamo Bay Naval Base in Cuba. To comply with Article 34 of the Geneva Convention which requires a detaining power to provide religious facilities, in November of 2002 the Army assigned Yee to Camp X-Ray.
The Yees decided that Huda and their infant daughter Sarah would return to live in Syria during James' Guantanamo tour of duty. Yee arrived at Guantanamo on Nov. 5, 2002. For the next ten months he held daily prayer sessions with many of the prisoners in a vacant office. At times he shared meals with the prisoners. This regular contact with prisoners, believes Fidell, may have raised suspicions on the part of military investigators. Another development that apparently attracted undue attention was Yee's relationship with a female Navy officer who was stationed in Guantanamo during the summer of 2003. That relationship would come to help raise Yee's ordeal to an even more excruciating pitch.
On September 10, 2003 Captain Yee was on his way home for a week of leave when he was arrested at a Naval air station in Jacksonville, Florida. He was stopped by customs agents who had been alerted by a Guantanamo investigator that Yee would be carrying classified information.
The next day Huda and Sarah, then 3, flew from Syria to Seattle-Tacoma International where they were expected to be greeted by James. They waited at the airport for five hours not knowing that James was being held in solitary confinement without even the right to make a phone call.
At a confinement hearing on September 12 a Navy prosecutor argued that Yee was a flight risk and should be moved to the maximum-security Navy brig in Charleston, South Carolina. Prosecution documents laid out the serious charges to be brought against Yee: espionage, spying, aiding the enemy, mutiny or sedition, and disobeying an order. Yee could face execution, his attorneys were told. The chaplain was alleged to have been carrying in his bag a confiscated sketch of the prison and a list of prisoners. Yee had only been carrying only two small personal notebooks, a typewritten sheet and a term paper on Syria that Yee had written for a college course on international affairs, claimed his attorneys.
On September 16, while Huda Yee was going out of her mind trying to discover her husband's whereabouts, James was being prepared for the ride to Charleston. He was blindfolded. His ears were covered. His legs and arms were shackled. He was given the same treatment accorded suspected al-Qaeda and Taliban fighters while being flown to Guantanamo Bay.
At the brig in Charleston, Yee was placed in solitary confinement. Hand and leg irons were placed on him whenever he left his cell. Though Yee was an Army captain guards refused to recognize him as an officer and made him identify himself as an E-1, the lowest enlisted rank. He wasn't allowed to send or receive mail, watch TV or read anything except the Koran. Only his attorneys could visit.
The first time Eugene Fidell visited Yee in his cell, he discovered that his new client was in leg irons only when he heard clanging as Yee rose to shake hands. The outraged lawyer was surprised to see that Yee showed no trace of anger.
"I saw a man that was plainly at peace with himself," said Fidell.
Other observers too have remarked on Yee's serene demeanor throughout his humiliating ordeal.
On the other corner of the country, Huda Yee wasn't faring so well. "She was upset," recalled a friend named Shaheed Nuriddin. "She was crying. She was distraught, because she didn't have any knowledge for about 10 days about what had happened to him and no contact with him at all."
It wasn't until September 20, when details of the arrest began appearing on national TV, that Huda Yee learned of her husband's whereabouts. The Washington Times and other media quoted unidentified government sources as saying that Yee would be charged with espionage and other capital offenses carrying the death penalty. The resulting media firestorm turned the Yee case into a big notch in the war against terrorism.
Without explanation FBI agents visited the Yees' Olympia apartment to pick up James's personal computer. Huda and Sarah began spending hours in front of the TV hoping for updates on James's status "[Sarah] saw me crying," Huda recalled. "She said, 'Don't cry. He will come back. I know he will come back.' The only thing she knows is that he is at work."
In late September Yee was finally allowed two calls a day. He used them to call Huda and his family in New Jersey
"Each time he called me, he said, 'You have to be strong, you have to,'" Huda recalled. "I don't want him to be worried about us. I have to be strong for my family and my daughter. I have to take care of them."
The media blitz about the monster espionage case against James Yee was taking its toll on Huda's life. Neighbors who once waved at her began ignoring her. She was made to feel unwelcome at the Fort Lewis commissary. She was visited by Army investigators who told her, "You don't know the man you married."
Increasingly Huda confined herself to caring for her daughter and checking news sites and TV for coverage on her husband's fate.
Fortunately, the Army continued sending his paychecks. James's father helped by handling her finances.
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. 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."
Yee appealed the reprimand to Southern Command which oversees Guantanamo Bay. On April 14 Commanding Officer General James Hill took the rare step of reversing the reprimand. "While I believe that Chaplain Yee's misconduct was wrong," Hill later told reporters, "I do not believe, given the extreme notoriety of his case that further stigmatizing Chaplain Yee would serve a just and fair purpose."
In one sense Yee remains shackled to this day by a letter he received from Lt. Col. Marvin S. Whitaker, his commander at Fort Lewis, entitled "First Amendment rights to free speech." It ordered Yee to refrain from any "adverse criticism" of the Department of Defense "or Army policy that is disloyal or disruptive to good order and discipline."
"Speech that undermines the effectiveness of loyalty, discipline, or unit morale is not constitutionally protected," wrote Whitaker. "Such speech includes, but is not limited to, disrespectful acts or language, however expressed, toward military authorities or other officials."
"The punch line is, 'Pal -- you're walking in a minefield and we're not going to tell you where the mines are. Proceed at your own risk,'" Yee's attorney believes that, in essence, the broadly phrased commandment prohibits Yee from saying anything about his ordeal on pain of being subjected to more legal charges.
During his seven-month ordeal, Captain Yee had gone from being branded a "dangerous" threat to national security shackled in leg irons to becoming an exposed adulterer reinstated to his former status as chaplain at his home base of Fort Lewis, Washington. In short, his life had been devastated. The big question remained: Why did it happen?
"If he were a white American, say a chaplain of some other denomination, I don't think this would have happened," said Fugh. "Any time you do something like this, you're bound to have some damage done to the integrity of the military justice system."
Yee's supporters in the American Islamic community agree.
"Nobody in history has been held for 76 days in solitary for the innocuous charge of mishandling documents," said Samia El-Moslimany, of the Seattle chapter of the Council on American-Islamic Relations.
Some have drawn damning conclusions from the treatment of three other Guantanamo men arrested at around the same time as James Yee.
One is Ahmad al-Halabi, a Syrian-born naturalized U.S. citizen serving as an airman in the U.S. Air Force. In July of 2003 while working as a translator at Guantanamo he was arrested and charged with 25 criminal counts, allegedly for failing to report contacts with the Syrian Embassy and trying to send to Syria more than 180 e-mails on behalf of Guantanamo prisoners. The most serious charges of espionage and lying to investigators were were later dropped but al-Halabi was court marshalled in April on 17 criminal counts.
The second is Ahmed Mehalba, an Egyptian-born civilian interpreter at Guantamo. In September of 2003 he was arrested at Boston's Logan Airport for allegedly mishandling classified data and lying about it. He was indicted by a federal grand jury in November.
The third is Army Reserve Colonel Jack Farr, a caucasian American who heads up Gauntanamo's prisoner interrogation unit. He was charged in November with transporting classified materials without proper containers on October 11 and lying about the materials when questioned. Like James Yee, the first two were held indefinitely without bail following arrest. Farr remained free and was allowed to remain on duty pending a court-martial hearing seven months later.
The sole reason for the differing treatment, suggested James' father Joseph Yee, now a 76-year-old World War II veteran, is "ethnic and religious profiling."
"How much have you heard about Col. Farr's case?" said the elder Yee. "What's the story on him? Col. Jack Farr is Caucasian and not a Muslim. James is Chinese and a Muslim."
Yee has made no decision about what he will do after his tour of duty ends in 2005. Meanwhile he has begun making discreet public appearances in an effort at rehabilitating his image and raising money to help pay off his large legal bills. One was a talk on Islam in June at the Washington State History Museum for the Tacoma chapter of The Bill of Rights Defense Committee.
"I'm here today as James Yee, your brother in humanity," he told the audience of about 75. "Today's special for people who have a passion for justice and diversity. Islam is relevant and all over the news. We must understand each other."
Upon learning of Yee's large legal bills the audience passed around a hat and filled it with cash. Many stepped up after the talk to give more money, to shake Yee's hand, even to get his autograph.
"I apologize as an American," said one man as he shook hands.
Perhaps in deference to the Army gag order Yee said nothing about his ordeal.
A Defense Committee officer presented Yee with a plank from Tacoma's old Japanese Language School building which had been demolished earlier in 2004. The school had closed when students and their parents were interned during World War II. The intervening sixty years had not been enough to protect James Yee from the same kind of race based hysteria triggered by a national crisis.
