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CAIR REPORT - May 11, 2005
The status of Muslim civil rights in the United States - 2005
The case of U.S. army Captain James Yee
Background
James Yee was born in Springfield, New Jersey to Chinese-American parents and graduated from West Point Academy in 1990. In 1991, he converted to Islam and adopted the Islamic name Yusuf[44]. Captain Yee left active duty in 1993, joining the United States Army Reserves so that he could go to Syria to learn Islam and Arabic, preparing to become one of the U.S. Army's first Muslim chaplains.[45] It was during his visit to Damascus that he met and married his wife, Huda.[46] When he returned from Syria, Captain Yusuf Yee became a chaplain with the 29th Signal Battalion at Fort Lewis, Washington and was stationed there during the September 11th attacks.
In November 2002, Yee was transferred as an army chaplain to Guantanamo Bay, Cuba, where he would minister Muslim prisoners and teach his superiors about Islam and pertinent issues relating to the 660 detainees being held at Camp X-Ray.47 During this time, Captain Yee and other Muslim workers would use a vacant office in the prison compound for prayers and some meals.[48]
Acts of Espionage?
On September 10, 2003, Captain Yee arrived at the Jacksonville (FL) Naval Air Station on leave for a one-week vacation. Investigators at Guantanamo Bay had ‘tipped off’ customs agents at the airport that Yee was possibly carrying classified materials. A customs agent testified at an Article 3249 military investigation that he had been ‘tipped’ to stop Captain Yee and that he confiscated "suspicious" documents from him.[50]
Federal agents say the captain was found in possession of sketches of the military prison at Guantanamo Bay and lists naming U.S. interrogators and imprisoned Taliban and al-Qaida fighters.[51] After being searched and found in possession of these classified documents, Captain Yee was arrested. Thus began Captain Yee’s seventy-six day confinement[52], the vast majority of this ordeal was spent in solitary confinement without him being convicted of any crime.
At his confinement hearing on September 12, 2003, a Navy prosecutor argued that Yee should be held under maximum-security conditions since he was a ‘flight risk’. This determination was made despite the fact that Captain Yee was a commissioned army officer with no history of fleeing a subpoena.
On September 16, 2003, Yee was subjected to sensory-deprivation treatment and driven to Charleston, South Carolina. Shackled, blindfolded and deafened by covers over his ears, he was then transported to the Navy brig and given the same treatment used on Camp X-ray prisoners being flown to Cuba. Court papers from the confinement hearing reported that Captain Yee was being charged with espionage, spying, aiding the enemy, mutiny or sedition, and disobeying an order. Some media reports were already speculating that Captain Yee could face the death penalty if convicted.[53] Surprisingly, details of Yee's arrest appeared in the media before he was ever charged with a crime.
A September 20, 2003 Washington Times article[54] proudly proclaimed "Islamic Chaplain is charged as spy" and proceeded to lay out details about the charges against him. Such media reports before any charges were levied against Captain Yee led many to believe that there had indeed been leaks by government officials to the media.[55]
Captain Yee was finally brought to trial on October 10, 2003. Despite the severity and ‘treasonous’ nature of the accusations originally levied against Captain Yee, he was indicted on only two much lesser charges; counts of failing to obey orders.[56] The Department of Defense's Southern Command, which oversees Guantanamo Bay, reported that Yee was charged with "taking classified material to his home and wrongfully transporting classified material without the proper security containers or covers."[57] Air Force Master Sergeant Jose Ruiz, a spokesman for the Southern Command, reported that the Army "had sufficient evidence that [Yee] violated the procedures in place for classified material given what he had in his possession."[58] After his trial, Yee's status was reduced to low security.[59]
Inhumane Treatment
Without being convicted of a crime, Captain Yee was imprisoned under maximum security conditions in 23-hour solitary confinement for an astonishing grand total of 76 days.[60] According to his army-appointed civilian lawyer, Eugene Fidell, Yee was let out of confinement for only one hour a day for exercise which he had to perform wearing leg iron shackles and handcuffs.[61] Personnel at the Navy brig in Charleston refused to recognize his status as a commissioned officer and required him to identify himself as an E-1, the lowest enlisted rank.[62] Fidell also reported that brig personnel were "needlessly interfering with his daily prayers and religious practices" by refusing to provide him a prayer rug, a liturgical calendar or telling him the time of day or direction of Mecca.[63]
"They let him languish in solitary confinement for 76 days. That's outrageous. When he saw his legal counsel, he was in leg irons,” said John Fugh, a retired Army judge advocate general. “We don’t treat commissioned officers that way. I don’t care what they did."[64]
From Treason to Pornography?
Captain Yusuf Yee was finally released from prison on November 25, 2003 after two and a half months of confinement. Instead of issuing an official apology for unjustly imprisoning a commissioned U.S. Army officer for seventy-six days; the Army thought it would be prudent to now charge Captain Yee with adultery and storing pornography on a government-issued computer.[65] The alleged adultery was said to have occurred with Navy Lt. Karyn Wallace[66] between July and September 2003.[67] The pornography was said to have been stored on his government-issued computer at Guantanamo Bay.
Yee was now scheduled to face an Article 32 hearing, the military legal equivalent to a grand jury or preliminary hearing.[68] Meanwhile, a US Southern Command spokesman said the military would graciously ‘allow’ Captain Yee to return as a chaplain to the base at Fort Benning, Georgia, but that he would not be allowed to have contact with any prisoners at Guantanamo.[69]
The Article 32 hearing on the new charges against Captain Yee was postponed six times before finally being cancelled altogether.[70] The first postponement occurred on December 2, 2003 when the hearing was postponed after military officials realized they had ‘mishandled classified information’. These Army officials seemed to have committed the same ‘mishandling’ which was one of the initial charges in Yee’s litany of ‘treasonous’ charges. Apparently, officials accidentally released pages from Yee's diary to his defense attorneys. The prosecution even admitted that it was uncertain if Yee even possessed classified materials when he left Guantanamo Bay in September 2002.[71] There would be four more subsequent court postponements until March 19, 2004.
Finally, on March 19, 2004, all criminal charges against Captain James Yee, including failure to obey orders and the mishandling of classified information, were dropped. However, the Army still would not admit Captain Yee’s innocence despite the fact that they had just dropped every single charge against him. General Geoffrey Miller’s reasoning for dismissing the charges was not because Yee was innocent, but due to "national security concerns that would arise from the release of the evidence."[72]
Although Yee had now been transferred to a post at Fort Meade, Maryland[73], his ordeal was unfortunately far from over. Although not a criminal offense, ‘adultery’ is punishable under the Uniform Military Code of Justice (UCMJ), the legal standard for soldiers in the armed forces. At a non-criminal administrative hearing on March 22, 2004, Yee was given a reprimand for the adultery and pornography charges.[74] Although he was never convicted of a crime and would now be a free man, Yee and his civilian defense attorney, Eugene Fidell, reiterated his innocence and appealed the reprimand.
Complete Exoneration and Freedom
On April 14, 2004, General James T. Hill, head of the Southern Command, granted Captain Yee’s appeal, dropping all remaining reprimands from Captain Yee's record.[75] General Hill stated that he granted Yee's appeal because of the "extensive media attention given….[to] Chaplain Yee's personal misconduct…While I believe that Chaplain Yee's misconduct was wrong," General Hill said, "I do not believe, given the extreme notoriety of his case in the news media, that further stigmatizing chaplain Yee would serve a just and fair purpose."[76]
Cleared of all charges against him, Yee finally returned as an Army chaplain at his home post of Fort Lewis, Washington in early May 2004. He was, however, placed under a strict ‘gag order’ not to wear his uniform in public when making comments about his case and was told he should be careful when speaking publicly so as to not to undermine military "loyalty, discipline or unit morale."[77]
Denunciations of Army Abound
Throughout Captain Yee's case, numerous critics, including former military prosecutors, judges and congressmen, have been demanding further examination. Pointing to media leaks, lack of evidence, unjust confinement and unusual courtroom procedures, critics of the Army often felt that Yee was treated unfairly and was being targeted because of his faith. Most observers found it odd that despite the severity of the ‘espionage’ charges for which Captain Yee was initially arrested; charges for which he could have been given the death penalty, Captain Yee received only a simple reprimand for adultery. Eventually, even that reprimand was rescinded.
Retired Coast Guard judge Kevin Barry would be one of the first to speak out against the injustice against Captain Yee. He said that, "This is a case that's so obviously wrong that [even] people who don’t know military law are, if not outraged, then very concerned about what happened." Speaking about the dismissal of charges, Judge Barry said, "There apparently was no evidence. If they had the goods, they would have prosecuted."[78]
Certain patterns also emerge when Captain Yee's case is compared with other terrorism-related cases, noted Bob Barr, a former Republican congressman from Georgia. Congressman Barr noted that, "What we're seeing in Guantanamo, and perhaps in this case, is what happens when you've removed any judicial oversight over what the government is doing."[79]
Of course, Yee's lawyer, Eugene Fidell, has consistently spoken out against major discrepancies in the case and has often called upon the Army to apologize for their vilification of Captain Yee. Fidell spoke about the lack of evidence against his client.
"When you see a gulf between the shrill charges and this anthill of evidence…you have to wonder." He also noted that the prosecutors never showed the defense any evidence of the classified materials Yee was suspected of carrying. "The government has never produced the evidence that it believes was classified, so I am somewhat at a loss…We were playing Hamlet without Hamlet here."[80]
In finally realizing the blatant injustice committed against Captain Yee, four United States Congressmen called for a formal investigation into the Army's unjust actions against Chaplain Yusuf Yee.
Representatives Michael Honda (D-CA), House Armed Services Committee Ranking Member, Rep. Ike Skelton (D-MO), House Armed Services Force Subcommittee Ranking Member, Rep. Vic Snyder (D-AR) and Armed Services Committee member Rep. Adam Smith (D-WA); who also happens to be Captain Yee’s congressman, wrote a letter to Joseph Schmitz, Inspector General of the Department of Defense demanding an investigation into the criminal probe and court martial hearings against Captain Yee[81].
The following are excerpts from the congressional letter:
"…We write to formally request that your office investigate the U.S. Army’s criminal probe and court martial of Army Chaplain, Captain James Yee. The Army’s decision to drop all charges against Captain Yee raises important questions about the strength and legitimacy of initial assertions by Army officials that Captain Yee had engaged in espionage and treasonous conduct at Guantanamo Bay, Cuba..."[82]
"…Press reports alleged that while confined, Captain Yee, a commissioned officer of the United States Army, was not afforded the military courtesies commiserate with his rank and that he was unduly targeted because of his religious affiliation with Islam. Given the unusual facts of this case, it is critical to determine whether Captain Yee was appropriately investigated, arrested and charged for criminal conduct by the U.S. Army…"[83]
In addition, on the other side of Congress, Senators Carl Levin (D-MI) and Edward Kennedy (D-MA) also separately demanded that Secretary of Defense Donald Rumsfeld start an[ 84] investigation into the Captain Yee fiasco.
In response to this request by the prominent Congressmen and Senators, the Inspector General of the Defense Department agreed in August 2004 to investigate the case. Assistant Inspector General John Crane said the investigation would be launched in the fall of 2004 and could not be started sooner because of "other ongoing and urgent matters."[85] Though the Inspector General's Office did not comment on what the probe would include, Congressman Honda expected that it would explore whether the Army ever had sufficient probable cause and evidence to suspect Captain Yee at all.
Eugene Fidell commented that the inspector general's investigation was long overdue. He hoped that the probe would eventually lead to an official apology, something that Captain Yee had been demanding for months. Mr. Fidell rightfully noted that congressional intercession should not be required for the Army to finally apologize to Captain Yee for its blatant mistakes and the undue hardships imposed upon him and his family. "The more tooth-pulling involved, it seems to me," said Fidell, "the less the apology."[86]
Understandably, these trials and tribulations had a profound effect on Captain Yee and his family. In August 2004, Captain Yee tendered his resignation to his superiors, asking to be discharged effective January 7, 2005. A portion of Yee's letter cited several reasons why he was leaving the Army.
Some relevant excerpts of his letter are as follows:
"…In 2003, I was unfairly accused of grave offenses under the Uniform Code of Military Justice and unjustifiably placed in solitary confinement for 76 days. Those unfounded allegations -- which were leaked to the media -- irreparably injured my personal and professional reputation and destroyed my prospects for a career in the United States Army…"[87]
"…The only formal punishment I received (on matters having nothing to do with national security) was overturned, but at the same time official statements again unfairly tarnished my reputation…"
Because of the gag order, said Yee, "my ability to defend myself against this pattern of unfairness has been impeded by official correspondence, the clear purpose of which is to chill the exercise of my right to free speech…"
Yee wrote that he waited for months for a government apology, "but none has been forthcoming. I have been unable even to obtain my personal effects from Guantanamo Bay, despite repeated requests. In the circumstances, I have no alternative but to tender my resignation..."[88]
After his ordeal and honorably completing his tenure with the United States Army, Captain Yee plans to complete his master's degree in international relations and return to his home in Washington.
44 Yusuf is the Arabic version of the name Joseph.
45 Rivera, Ray. "Pentagon to investigate case of Fort Lewis chaplain." Seattle Times, August 5 2004.
46 Parker, Laura. "The ordeal of Chaplain Yee." USA Today, May 16 2004.
47 "Yousef Yee Charged With Adultery, Storing Porn on Gov't Computer." Fox News Channel, November 26 2003.
Topics ranged "from the history of Islam to insights on the rise in suicide attempts" among the detainees
48 Supra note 8.
49 An Article 32 hearing is the military equivalent of a grand jury proceeding or hearing.
50 Rowan Scarborough. "Yee case on hold as military falters." The Washington Times, December 12 2003.
51 Supra note 7.
52 Supra note 8.
53 Supra note 11.
54 Rowan Scarborough, “Islamic chaplain is charged as a spy,” Washington Times, September 20, 2003 available at http://www.washtimes.com/national/20030919-105619-9614r.htm
55 Supra note 8. 16
56 "Gitmo Chaplain Charged." CBS News, October 10 2003.
57 Guy Taylor, "Muslim Chaplain Charged by Army." The Washington Times, October 10 2003.
58 "Guantanamo Muslim chaplain charged." Al-Jazeera, October 11 2003.
59 Mike Barber, "Yee reunited with family." Seattle Post-Intelligencer, April 6 2004.
60 “Chaplain’s prosecutors focus on porn, sex charges” CNN.com, December 8 2003 available at
http://www.cnn.com/2003/LAW/12/08/yee.hearing.ap/
61 Supra note 7. 62 See note 20. 63 See note 21.. 64 Ibid.
65 "Yousef Yee Charged With Adultery, Storing Porn on Gov't Computer." FOX News, November 26, 2003 available at
www.foxnews.com%2Fstory%2F0%2C2933%2C104082%2C00.html
66 Supra note 8.
67 Supra note 25.
68 Id.
69 Id.
70 See www.captainyee.com
71 Mike Barber, "Yee reunited with family." Seattle Post-Intelligencer April 6 2004.
72 Supra note 70.
73 Rowan Scarborough, "Army, captain near deal in espionage case." The Washington Times, March 16 2004.
74 Laura Parker, "The ordeal of Chaplain Yee." USA Today, May 16 2004 available at
http://www.usatoday.com/news/nation/2004-05-16-yee-cover_x.htm
75 "Muslim Army chaplain wins adultery appeal." CNN.com, April 14 2004.
76 Supra note 74.
77 Supra note 75.
78 Supra note 74.
79 Ibid.
80 Ibid.
81 See http://www.spokesmanreview.com/local/story_txt.asp?date=032004&ID=s1501264
82 "Letter Requesting Investigation of Captain Yee." May 20 2004. Mike Honda, Fifteenth District of California available
at http://www.house.gov/honda/InCongress/yeeletter.html
83 Id.
84 Supra note 7.
85 Id.
86 Ibid.
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