High crimes at Guantanamo Bay?
Why the espionage allegations, if proved, may be serious enough to warrant the death penalty
By Phillip Carter
(FindLaw) -- Recently, the United States took two of its own servicemen -- Captain Yousef Yee and Senior Airman Ahmad I. Al Halabi -- into custody for alleged acts of espionage.
And just last week, the FBI took another American -- Ahmed Mehalba -- into custody for allegedly stealing classified documents from the same location. (The charges against Halabi and the charges against Mehalba are public; Yee has not yet been publicly charged.)
All three cases are intimately linked to America's detention and interrogation center at Guantanamo Bay, Cuba -- where more than 600 detainees from the war on terrorism are being held. The U.S. government has designated these prisoners as "unlawful combatants," and thus has given them something less than full Geneva Convention status as prisoners of war.
Since their capture, the government has exhaustively interrogated all of these prisoners for information about al Qaeda, the Taliban, and terrorism generally. Although the precise results remain classified, several reports indicate that this effort has yielded some valuable intelligence for the war on terrorism.
The essence of the charges against these three men is this: According to the government, they gathered classified information about Guantanamo Bay, and interfered with the interrogation effort there. If these allegations are proven, the men could be convicted of capital espionage, defined as communicating, delivering, transmitting, or attempting to communicate, deliver or transmit information about nuclear weaponry, military spacecraft, early warning systems against large-scale attack, war plans, communications, or other major weapons systems. (A lesser, non-capital charge of espionage exists for communication information about other secret matters).
Yee and Halabi could also be convicted of aiding the enemy, defined as giving (or attempting to give) "arms, ammunition, supplies, money, or other things" to the enemy, communicating with the enemy, or having "any intercourse with the enemy, either directly or indirectly".
If convicted, the two military defendants could face the death penalty. (In contrast, Mehalba currently faces up to 5 years in federal prison for his alleged false statements to airport officials, but more charges are expected that could lead to a life sentence for him.)
At first glance, imposition of the death penalty here might seem severe, especially for non-violent crimes; after all, murder is the classic death-eligible crime. But, as the government doubtless points out, these crimes, if they are proven, will have jeopardized not just one life, but literally thousands, for they could have a lasting impact on America's ability to understand the threat it faces from Al Qaeda.
Viewed in this context, the death penalty begins to seem far more appropriate. Certainly few who support the death penalty for murder would oppose it for Richard Reid -- the so-called "shoe bomber" who tried to down a passenger airliner. Yet if the allegations against Yee and Halabi are proven, they have put many, many more people in serious jeopardy than even the notorious Reid did.
The facts of Yee's case
On September 10, in Jacksonville, Florida, the government arrested Captain James "Yousef" Yee, a U.S. Army Muslim chaplain who was assigned to provide religious counsel to the detainees at Guantanamo. Yee was then transferred to the military brig in Charleston, South Carolina, where he remains today. Yee has been assigned military defense counsel, and apparently, a military magistrate approved Yee's pre-trial confinement.
Yee grew up in the United States and graduated from the U.S. Military Academy at West Point. He fought in the first Gulf War as an air defense artillery officer, but eventually left the Army. Yee converted to Islam while in the Saudi desert for that war; he later left the Army and moved to the Middle East to study Islam.
After graduating from a prestigious seminary in Syria, Yee moved back to the United States, where he sought to re-enter the U.S. Army as a military chaplain. In late 2002, the Army deployed Yee to Guantanamo Bay to tend to the religious needs of the detainees there.
Details are sketchy about Captain Yee's case, because no official charges have been released. Some reports say that he allegedly counseled detainees not to reveal information to their interrogators. Other reports say that he allegedly took messages from the detainees and promised to convey them to friends and relatives abroad -- messages which may have been coded and intended for other terrorists. It's also thought that Yee is alleged to have taken a large amount of classified information from Guantanamo, including schematics of the facility and the names of the detainees.
The facts of Halabi's case
The facts of Airman Halabi's case are more clear than those of Yee's case, if only because formal charges have been preferred against Halabi, and made public.
Halabi was assigned to Guantanamo Bay on a temporary basis from Vandenburg Air Force Base in California because of his language abilities. A native Syrian, Halabi was a naturalized U.S. citizen who spoke Arabic with a fluency no school-trained interrogator could ever match. As a translator, he played a crucial role in the interrogations, serving as the conduit between the intelligence experts and the detainees.
Prosecutors allege that Halabi did a number of things to frustrate the interrogation effort he was supposed to be aiding. More than 30 counts charge Halabi with e-mailing the names and serial numbers of detainees to foreign sources known to be the enemy, acting as a courier for notes from the detainees, and mishandling classified materials. In one count, Halabi is alleged to have aided the enemy by arranging private meetings with the detainees and delivering food -- including baklava.
The facts of Mehalba's case
The third suspect -- the one who currently faces, at most, a life and not a death sentence -- is Ahmed Mehalba. Mehalba is a former U.S. Army intelligence specialist, and the nephew of a retired Egyptian army intelligence officer. He was employed by Titan Corporation, a San Diego-based defense contractor, as a linguist for the interrogation effort.
Federal agents arrested Mehalba at Logan Airport in Boston after he returned from a trip to Egypt. Mehalba presented airport officials with a Defense Department ID card and U.S. passport upon his entry, as well as an ID that said he worked as a linguist at Guantanamo Bay. While searching his bags, airport officials reportedly found a number of classified documents, many connected to the facility at Guantanamo Bay. Federal agents took Mehalba into custody and charged him with making false statements to federal agents about whether he had classified documents in his possession.
Authorities say they have no evidence that Mehalba was connected to Yee or Halabi, but a classified investigation is currently underway into the matter. Mehalba remains in custody in Boston pending these charges, with a preliminary hearing set for October 8.
If convicted on this charge alone, Mehalba could face up to 5 years in prison and a $250,000 fine. However, many experts think that Mehalba will be charged with additional crimes such as providing material support to terrorists, which may make him eligible for life in prison.
Why Yee and Halabi, if convicted, will be death-eligible
If true, the allegations against Yee and Halabi could lead to the death penalty. Espionage and aiding the enemy both carry the penalty of death under the Uniform Code of Military Justice.
If a military jury convicts these men, it could recommend the death penalty -- but would have to do so by a unanimous verdict. If such a verdict were issued, it would have to be approved by the convening officers for each soldier's trial. (This requirement constitutes a kind of executive review in the military justice system. Such review ensures that both the jury and the office agree that the death penalty is warranted in a given case.)
The sentences would then be automatically reviewed by the respective services' court of criminal appeals. After that, they would once again be automatically reviewed, this time by the U.S. Court of Appeals for the Armed Forces.
Both military defendants could also appeal their sentences to the U.S. Supreme Court, but there, review would be discretionary -- not automatic.
The importance of ensuring the security of interrogations
As I noted above, if these three defendants breached interrogation security, they may have put thousands of lives at risk -- because they may have fatally imperiled the efficacy of the Guantanamo interrogations.
This contention may sound like hyperbole to a civilian unfamiliar with either the power of interrogation, or its fragility when imperiled. But to those familiar with interrogation, this contention about the damage Yee and Halabi, if guilty, may have done, is very credible indeed.
Interrogation is a dark art, practiced in secrecy by men and women whose existence is often denied by the governments for whom they work. Most Western governments -- the U.S. included -- have moved away from physical means of torture -- for reasons not only of humaneness, but also of efficacy.
As Mark Bowden recently explained in an article in The Atlantic Monthly, torture usually forces the mind to shut down, yielding no results. Thus, coercion, distinguished from torture by its focus on the mind instead of the body, has become the preferred method of interrogation for American intelligence officers.
Successful interrogators generally start their process by building a relationship in which the detainee feels, and is, dependent upon the interrogator. This sense of dependency is reinforced by isolation, as well as other tools like sleep deprivation, and disorientation as to the time and place. A detainee who's alone, disoriented, and afraid will likely turn to his interrogator for help -- assistance that can be bought with the currency of information.
Small environmental changes can have a major impact on the detainee's willingness to resist interrogation, whether these small changes are extra food from a guard or a kind word from the chaplain.
Contact with the outside world can be extremely disruptive, as it often gives the detainee a false sense of hope or sense that he is allied with a larger struggle. Indeed, in memoirs written after the Vietnam War, many American POWs said that their contact with other inmates was what enabled them to persevere through years of captivity.
If Yee and Halabi indeed, as the government believed, acted as friendly counselors to, couriers for, and even -- in Halabi's case -- procurers of food for, the detainees, then it is very likely that they fatally sidetracked interrogation. It is also likely that had that interrogation been successful, lifesaving information about al Qaeda and terrorism more generally would have been learned.
Initial reports indicate that Yee and Halabi may have acted so as to destroy the necessary atmosphere of dependency and isolation. As chaplain, Yee enjoyed a privileged position where he was able to meet privately with the detainees, and he was expected to give them religious counsel. In doing so, he may have also steeled their wills against the American interrogators, hampering the intelligence gathering effort.
Similarly, Halabi acted as an interpreter at the base, and is alleged to have had extensive unauthorized contacts with the detainees -- even giving some baklava as a way of raising their spirits.
While these acts may seem innocent, they have an enormously destructive effect on the interrogation environment.
The separate but similar isolation issues in the Hamdi and Padilla cases
The issues raised here are somewhat parallel to -- though separate and different from -- the issues raised in the cases of Jose Padilla (the alleged "dirty bomber") and Yaser Hamdi (captured on the battlefield in Afghanistan). Yee and Halabi were part of the U.S. military; Padilla and Hamdi were civilians who are alleged, respectively, to have conspired with the enemy, and to have fought with the enemy.
Unlike Yee and Halabi, Padilla and Hamdi have been denied attorneys, though they are U.S. citizens -- leading to intense controversy on this point. But in the cases of all four men, as well as that of Mehalba, the government has reasonably urged that interrogation in isolation is of paramount importance. Indeed, in Padilla and Hamdi's cases, the government has argued that this seclusion would be disturbed by allowing access to an attorney.
In December 2002, a federal judge directed that Padilla should be allowed access to an attorney. But the government has still refused to let it happen, appealing the issue to the U.S. Court of Appeals for the Second Circuit.
In Hamdi's case, the government offered a declaration from U.S. Navy Commander Donald D. Woolfolk in support of its bid to deny Hamdi access to legal counsel. This declaration remains one of the best statements of why the government does not want to allow anything -- attorneys, family members, or the outside world -- to get inside its interrogation rooms at Guantanamo Bay or elsewhere.
"The United States does not employ any corporal means of coercion to gain information from persons being interrogated. Rather, the United States has adopted a humane approach to interrogation that relies upon creating an atmosphere of dependency and trust between detainees and the intelligence gathering staff assigned to that detainee. Over time, information is learned. . . . Under such circumstances the need to maintain the tightly controlled environment, which has been established to create dependency and trust by the detainee with his interrogator, is of paramount importance. Disruption of the interrogation environment, such as through access to a detainee by counsel, undermines this interrogation dynamic. Should this occur, a critical resource may be lost, resulting in a direct threat to national security."
This declaration is no overstatement -- it reflects military realities, and the reality of the circumstances under which interrogation succeeds, or fails.
How intelligence from interrogation has been effectively exploited
Ultimately, the goal of all these interrogations is to produce information about al Qaeda, the Taliban, and other terrorist threats around the world. This information is analyzed, refined, and converted into intelligence. This intelligence subsequently informs the decisions and actions of our political leaders, law enforcement officers, and soldiers in the war on terrorism -- and inaccuracies or omissions can be deadly. Two examples help to illustrate how this can work.
First, The New York Times reported this week that Pentagon officials are concerned that Halabi and Mehalba might have deliberatively mistranslated scores of interrogation proceedings at Guantanamo Bay.
At best, these mistranslations might have obscured the truth about al Qaeda, its organization, and its plans. But it's also possible that these mistranslations may have concealed critical information about the organization, such as its plans to bomb a U.S. compound in Saudi Arabia or the known hideouts of Osama bin Laden. At worst, Halabi and Mehalba may have changed the answers so as to send investigators on a wild goose chase, taking resources away from counterterrorism efforts that may bear fruit.
Second -- and more concretely -- since Jose Padilla's May 2002 arrest, the Justice Department has credited interrogations at Guantanamo Bay with producing the information necessary to find the man with whom Padilla allegedly conspired -- the "dirty" bomber himself, who is alleged to have planned to detonate a radiological dispersal device in the United States.
If someone had frustrated those interrogations -- as Yee and Halabi allegedly did with respect to the Guantanamo interrogations in which they were involved -- American intelligence officials might not have learned of these plans, and the "dirty bomb" attack might have gone forward. Had it done so, hundreds or thousands of Americans could have been wounded or killed.
The death penalty is a proper punishment for espionage and aiding the enemy
In sum, Yee and Halabi -- if guilty -- did something tremendously destructive and dangerous. If guilty, they have substantially impeded America's collection of intelligence in the war on terrorism. And if guilty, they may well have put thousands of lives at risk.
The death penalty may seem extreme for a crime that is not immediately violent. But the violence may have already happened -- or may be still to come. If these men did provide intelligence and aid to the enemy, then they may have actually caused the deaths of Americans at home and abroad -- or they may yet cause such deaths in the future.
It remains unclear how much damage these three men have caused, if any at all. Indeed, the findings of any investigations are likely to remain classified. However, if the allegations are true, then we can be certain that these men have done an incredible amount of damage to America's war on terrorism. Imposition of the death penalty, under the circumstances, would not be unjust.