FORT BENNING, Ga. -- After just one day of testimony that was more about sex than security, a military commander ordered a 40-day delay in the case of Army Captain James J. Yee to determine whether documents seized from the former Muslim chaplain at Guantanamo Bay Naval Base prison were classified and, if so, how sensitive they were.
Pending the results of the security review, no one involved in the hearing, including Army Colonel Dan Trimble, the investigating officer who is to judge whether the charges against Yee merit a court martial, is allowed to see the only security-related evidence against the former chaplain.
The Guantanamo commander, Major General Geoffrey Miller, ordered the hearing to start this week but delayed it after prosecutors said they could not proceed with the classified-information charges against Yee until the security review was complete.
Prosecutors presented evidence Monday that Yee had an extramarital affair with a fellow officer last summer and kept pornography on his government computer. But they were unable to present much evidence of the charges that Yee mishandled classified information.
Late in the afternoon, Miller ordered the hearing delayed until Jan. 19 to finish evaluating the papers, which were described by a Customs agent Monday as consisting of several dozen pages of handwritten notes and one typewritten page with "names and numbers next to those names" pertaining to Guantanamo detainees and interrogators.
Prosecutors did not explain why the hearing started before the evidence had been fully examined, and a military spokesman was unable to answer the question.
Adding to the sense of disarray, Yee's civilian attorney, Eugene Fidell, suggested that the delay may trample upon a "speedy trial" rule that defendants be arraigned within 120 days or the charges against them be dropped. Yee was arrested on Sept. 10.
"I want the clock running every second," Fidell said.
Miller has authorized a 45-day extension to the speedy trial rule, but Fidell said that the extension was vulnerable to challenge. A military spokesman disputed that interpretation.
Meanwhile, during the seven-hour idle period before Miller's decision yesterday, Army Major Scott Sikes, the military defense lawyer assigned to Yee, revealed that a prosecutor told him several months ago that he would need to add someone with death penalty qualifications to his team.
Instead, Yee, who was released from confinement last month after 76 days in a brig, faces a maximum penalty of 13 years in prison for charges related to allegedly taking classified information home and transporting without proper covers, making a false statement, adultery, and accessing pornography on his government laptop.
"It concerns me that this case was raised to a level echelons above reality early on and it seems like we've been in steady decline in terms of the seriousness of the allegations since then," said Sikes. "This is the most incredible military proceeding that I've ever been involved with."
Sikes also said that the level of charges that remained would be better addressed with an administrative reprimand rather than a criminal case, and suggested that the government's pushing forward with a full court martial for the charges it was able to make is "face-saving" because of the original level of the suspicions against Yee.
The government's admission that the unfinished security review meant the case could not proceed was made in public only after a confrontation between Trimble and Fidell, who began the day storming into the courtroom and complaining to observers that the judge wanted to discuss the problem behind closed doors in violation of his client's right to a public hearing.
"We have become concerned about the extent to which there have been conferences with the investigating officer in private and we have this morning declined to do it any longer," Fidell said. "Any further business will be conducted in the courtroom."
The defense team has also requested information on security procedures at the base, an independent security specialist to review documents, and access to two detainees who were "material witnesses" in the alleged false statement incident, which has to do with whether a compact disc Yee gave one detainee had been cleared for his use.
Making a rare public statement afterward, Yee said he intended to request permission for a leave from Miller today.
"That gives me some needed time with my family, some lost time that I spent in pretrial confinement," he said. "The first thing on my mind is spending some time with my family."