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American Morning

Legal Perspectives

Aired December 08, 2003 - 09:18   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


BILL HEMMER, CNN ANCHOR: Is there enough evidence against Army Chaplain James Yee to warrant a court-martial? A military hearing scheduled today in Fort Benning, Georgia set to make that call. Yee ministered to Muslim prisoners at Guantanamo Bay in Cuba, suspected of spying, but never charged. He's now facing six counts, including mishandling classified material, committing adultery with a female officer at Guantanamo Bay.
Our legal analyst Jeffrey Toobin checks in now, recently returned from Guantanamo Bay in Cuba. Back here in the chilly climes of New York City.

What did you find out about him down there? What was his reputation?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, certainly he had a good reputation. I was talking to the head of the food services there, and he was saying -- we were talking about the diet of the detainees and he was saying this diet is halal, which is the sort of diet that Muslims are supposed to follow, and he said Captain Yee helped design this diet. And you know, he was a respected person there. Everyone was shocked when he was arrested.

HEMMER: Shocked?

TOOBIN: Totally shocked.

HEMMER: That's the word they used?

TOOBIN: Yes, absolutely. And he has not been replaced. There is no Muslim chaplain there.

HEMMER: What explains that?

TOOBIN: They're not many Muslim chaplains in the military. And this was certainly a hot seat, a very difficult assignment. Yee's term ended very badly, obviously, for all concerned. There is a new Muslim chaplain on the way in a few weeks. But there hasn't been one there for quite some time.

HEMMER: Explain this to us if you could, from a legal standpoint as it applies to the military. We're led to believe that this was espionage in the very beginning. It since has morphed itself into a number of other different charges -- adultery, pornography. How do you get to that point?

TOOBIN: It's a very striking difference. When you arrest someone for espionage, that is about as serious a thing as you can have in the military, and even potentially carries the death penalty. When he is actually brought to an article 32 hearing, which is like a cross between a grand jury and a preliminary hearing, a preliminary investigation, for these really minor charges, of pornography, of adultery, and he's been released from custody, so that really suggests the military doesn't fear that he's doing anything very bad. It suggests that the military may be overplaying its hand at the beginning.

HEMMER: Is this a fishing expedition, legally, as some had suggested?

TOOBIN: I can't go to the motives. I really don't know enough to know if there any improper motives here, but certainly you can see why Muslim activists, supporters of Chaplain Yee, are suggesting there was at least some sort of rush to judgment at first in suggesting espionage.

Now, when they have to produce evidence, it's these really minor charges.

TOOBIN: We've got another minute here, want to talk about another legal case, Lee Boyd Malvo, testimony continues again today, now age 18, the heinous crimes charged with in D.C. Area. You believe right now there's a certain defense strategy that's kind of getting ahead of the game. Explain that.

TOOBIN: Right. They're putting a lot of their effort on a psychologist who testified -- who is allegedly putting forth an insanity defense at the guilt phase. It really doesn't match the legal definition of insanity. It's not really a very good insanity defense, what's being put forward. And I think it's unlikely to succeed at the guilt phase.

However, planting with the jury the idea that this was a psychologically troubled kid, who was completely under the domination of John Muhammad, could potentially be a very good defense in the penalty phase to try to get him to avoid the death penalty. So I think that's what's really going on here.

HEMMER: Manipulation, though, is one thing. But getting them to be convinced that he was under the guise of this older man, age 42, and that is what led him to carry out these shootings, boy, that's a heck of a ploy, don't you think?

TOOBIN: It's very tough for the defense to get him out on the guilt phase on this. I think 10 shootings, with that extremely vivid confession, all of his drawings, suggesting that he really wanted to kill these people. It's very hard to suggest that he was insane when he was doing that, and should get a not guilty verdict.

But with the death penalty, it's something very different. There, you only need one juror to say, you know, bad as this act was, it doesn't deserve the death penalty. That seems more promising.

HEMMER: Thanks, Jeff. Good to see you. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com






Aired December 8, 2003 - 09:18   ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
BILL HEMMER, CNN ANCHOR: Is there enough evidence against Army Chaplain James Yee to warrant a court-martial? A military hearing scheduled today in Fort Benning, Georgia set to make that call. Yee ministered to Muslim prisoners at Guantanamo Bay in Cuba, suspected of spying, but never charged. He's now facing six counts, including mishandling classified material, committing adultery with a female officer at Guantanamo Bay.
Our legal analyst Jeffrey Toobin checks in now, recently returned from Guantanamo Bay in Cuba. Back here in the chilly climes of New York City.

What did you find out about him down there? What was his reputation?

JEFFREY TOOBIN, CNN LEGAL ANALYST: Well, certainly he had a good reputation. I was talking to the head of the food services there, and he was saying -- we were talking about the diet of the detainees and he was saying this diet is halal, which is the sort of diet that Muslims are supposed to follow, and he said Captain Yee helped design this diet. And you know, he was a respected person there. Everyone was shocked when he was arrested.

HEMMER: Shocked?

TOOBIN: Totally shocked.

HEMMER: That's the word they used?

TOOBIN: Yes, absolutely. And he has not been replaced. There is no Muslim chaplain there.

HEMMER: What explains that?

TOOBIN: They're not many Muslim chaplains in the military. And this was certainly a hot seat, a very difficult assignment. Yee's term ended very badly, obviously, for all concerned. There is a new Muslim chaplain on the way in a few weeks. But there hasn't been one there for quite some time.

HEMMER: Explain this to us if you could, from a legal standpoint as it applies to the military. We're led to believe that this was espionage in the very beginning. It since has morphed itself into a number of other different charges -- adultery, pornography. How do you get to that point?

TOOBIN: It's a very striking difference. When you arrest someone for espionage, that is about as serious a thing as you can have in the military, and even potentially carries the death penalty. When he is actually brought to an article 32 hearing, which is like a cross between a grand jury and a preliminary hearing, a preliminary investigation, for these really minor charges, of pornography, of adultery, and he's been released from custody, so that really suggests the military doesn't fear that he's doing anything very bad. It suggests that the military may be overplaying its hand at the beginning.

HEMMER: Is this a fishing expedition, legally, as some had suggested?

TOOBIN: I can't go to the motives. I really don't know enough to know if there any improper motives here, but certainly you can see why Muslim activists, supporters of Chaplain Yee, are suggesting there was at least some sort of rush to judgment at first in suggesting espionage.

Now, when they have to produce evidence, it's these really minor charges.

TOOBIN: We've got another minute here, want to talk about another legal case, Lee Boyd Malvo, testimony continues again today, now age 18, the heinous crimes charged with in D.C. Area. You believe right now there's a certain defense strategy that's kind of getting ahead of the game. Explain that.

TOOBIN: Right. They're putting a lot of their effort on a psychologist who testified -- who is allegedly putting forth an insanity defense at the guilt phase. It really doesn't match the legal definition of insanity. It's not really a very good insanity defense, what's being put forward. And I think it's unlikely to succeed at the guilt phase.

However, planting with the jury the idea that this was a psychologically troubled kid, who was completely under the domination of John Muhammad, could potentially be a very good defense in the penalty phase to try to get him to avoid the death penalty. So I think that's what's really going on here.

HEMMER: Manipulation, though, is one thing. But getting them to be convinced that he was under the guise of this older man, age 42, and that is what led him to carry out these shootings, boy, that's a heck of a ploy, don't you think?

TOOBIN: It's very tough for the defense to get him out on the guilt phase on this. I think 10 shootings, with that extremely vivid confession, all of his drawings, suggesting that he really wanted to kill these people. It's very hard to suggest that he was insane when he was doing that, and should get a not guilty verdict.

But with the death penalty, it's something very different. There, you only need one juror to say, you know, bad as this act was, it doesn't deserve the death penalty. That seems more promising.

HEMMER: Thanks, Jeff. Good to see you. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com