Army Chaplain’s Lawyer Gets Secret Data

When Army Capt. James Joseph Yee goes to a military court hearing here next week, the government may find itself faced with the same accusation it has leveled against the Muslim chaplain who ministered to detainees at the U.S. Naval Base at Guantanamo Bay, Cuba: Mishandling classified material.

That odd turn of events occurred this week when Yee’s hearing was abruptly delayed after military authorities discovered they had compromised secret intelligence by giving classified material to Yee’s defense team. One of Yee’s lawyers, a civilian, has not yet obtained government security clearance.

That lawyer, Washington-based attorney Eugene R. Fidell, head of the nonprofit National Institute of Military Justice, said Wednesday that he would raise a “double-standard” issue when the military court’s preliminary hearing, known as an Article 32 examination, gets underway here Monday.

“I don’t see how they can proceed on this against Chaplain Yee,” Fidell said. “If they don’t know what’s classified and what isn’t, how is a chaplain supposed to know? And if they don’t properly mark things that are classified, how can they prosecute Chaplain Yee for the same thing?”

But Army Lt. Col. Bill Costello, spokesman for the U.S. Southern Command, which oversees the Guantanamo camp for suspected terrorists, said although the government “inappropriately” turned over classified material to Fidell, prosecutors quickly notified authorities and retrieved it.

He said that is far different from what Yee, 35, a West Point graduate, is accused of doing.

“What Capt. Yee is alleged to have done is just the opposite,” Costello said. “He kept the information and took it to an unsecure location and did not alert the appropriate officials.”

The preliminary hearing had been scheduled to begin Tuesday morning at Ft. Benning. In preparation for the session, military officials sent a packet of material to Fidell’s home in the Washington area on Nov. 28, the day after Thanksgiving, because the defense lawyer was not at his office that day.

“They left it in my mailbox at my home,” Fidell said. “They put it in the mail slot in my house.”

Among the materials was what Fidell would only describe as a handwritten “day-timer” journal that included notes Yee had made before his arrest last September. Fidell said he read and studied the material, thought that some of it might be references to classified information and then made plans to fly to Ft. Benning the following Monday.

In fact, he said, he was sitting on the plane about to depart the Ronald Reagan Washington National Airport about 5:30 p.m. Monday when his cell phone rang. The call was from a prosecutor telling him not to come to Georgia, that the hearing was being delayed because of the problem with the classified material.

“Are you telling me I should get off the plane?” Fidell said he asked the prosecutor. “He said yes. So I persuaded the cabin crew to let me off.”

Costello, the Guantanamo Bay spokesman, said it was only by chance that military officials discovered they had sent classified information to Fidell.

He said the government was also preparing for the hearing over the weekend, and learned that Yee referred to secret information in the handwritten notes and that Fidell had not been cleared to review such material.

The problem, Costello said, was that although Yee’s handwritten notes were not labeled or stamped classified, they referred to classified information.

“It wasn’t at first like a bad apple stuck in a pile that somebody should have readily seen,” Costello said.

Fidell said that assertion would not deter him from his course.

“I’ve already suggested they should abandon the case,” Fidell said. On Tuesday, he sent an e-mail to prosecutors and the hearing officer that said, in part:

“I would hope this incident would furnish the government an opportunity to take stock and consider whether, based on all the facts and circumstances, including Chaplain Yee’s ... pretrial confinement, the public interest is truly served by continuing with this case.”

Yee was recently released from a military brig and has been reassigned to Ft. Benning, where he is assisting the chaplain’s office.

Along with two counts of mishandling classified material, Yee also is charged with downloading pornography on his government computer and engaging in adultery, which is punishable in the military.

He was the first of four officials at the Guantanamo Bay prison to face charges in a scandal over security procedures there.

Fidell said he believes the case can be resolved without a court-martial trial.