The Insidious Reach of Sex Laws

It took a heterosexual this time to prove the point that gay rights advocates have been making for more than half a century: laws governing the private sexual conduct of consenting adults have no place in our society.

But, after all, he was a dangerous heterosexual at that.

The straight man in question is Capt. James Yee, who as a Muslim chaplain assigned at Guantanamo Bay, Cuba had responsibility for ministering to suspected terrorists.

Yee’s plight at the hands of Army investigators has slipped on and off the front pages since last September, but official proceedings this week which may well be the final denouement of what can perhaps best be termed official farce received little of the attention that rained on the story when it first broke.

During the past six months, investigators indicated that Yee, a 36-year-old West Point graduate, was under suspicion for spying, mutiny, sedition, and aiding the enemy. The one piece of evidence that was repeatedly trotted out to bolster such a wide array of heinous charges was that Yee had on one occasion left the base with classified materials in a manner inconsistent with military rules. That sounded suspicious indeed, until other observers familiar with the minutia of Army procedures came forward to say that the infractions were minor and very technical in nature.

In the end, Yee was merely reprimanded for two offenses that have nothing to do with national security––adultery and storing pornographic material on his government-owned computer.

Both are military crimes, but citing national security concerns, Yee was not prosecuted for criminal offenses in a court martial that would have involved the introduction of evidence. Instead, the matter was handled administratively, which is to say, at long last, discreetly.

Yee’s civilian attorney, Eugene Fidell, plans to appeal the administrative reprimand, and was quoted in The New York Times describing his client as “the victim of an incredible drive-by act of legal violence.”

The Yee episode is sadly telling in several respects.

The first relates to the stubborn resistance of top-down, hierarchical institutions like the military to admitting error. In a climate of hysteria, the Army seized on a minor procedural infraction buffered by evidence about the most private aspects of Yee’s life to craft a case of sedition. The allegations began crumbling almost as soon as they were aired publicly, yet investigators clung to their quest like a dog sinking its teeth into a mailman’s leg. When the outrageous charges first circulated evaporated into thin air, the Army did not show the decency to let go of its intrusion into Yee’s sexual life.

Last year, the Senate approved the promotion of Maj. Gen. Robert T. Clark, the man who commanded Fort Campbell, Kentucky in 1999 when 21-year-old Pfc. Barry Winchell was brutally murdered in an outburst of anti-gay hate. Despite substantial evidence that a climate of homophobia was tolerated at Fort Campbell, Winchell’s mother and stepfather, Pat and Wally Kutteles, were never able to get the Army to acknowledge responsibility for their son’s death. Clark only agreed to meet with the Kutteleses last summer, four years after the murder, when Senate Foreign Relations Chair John Warner made clear the promotion would not move forward without such a meeting.

The Army’s ability to keep the Yee case alive on the strength of charges of adultery and storing pornography alone also points up the dangerous ways in which morals laws can be used arbitrarily by government as a tool of harassment. It is likely that a substantial portion of the American adult population, and of the Army population as well, could be found guilty, given unlimited powers of government investigation, of one or the other of Yee’s “offenses.”

Why is he paying the cost, in terms of his professional standing and his personal reputation? Because his Islamic faith raised suspicions, so everything became fair game. Later, it is likely that the morals quest was sustained because investigators were pissed off that they wouldn’t get their espionage collar.

And it is probably no accident that all of this went down under George W. Bush’s approval.

Observing the administration’s assault on the latest threat to his re-election, Paul Krugman writing in The Times this week, noted that the strident attacks on former counterterrorism official Richard Clarke, who had the nerve to observe that the emperor has no clothes, fits an all too familiar pattern. Gen. Eric Shinseki’s dissent in front of Congress, when he suggested the administration was lowballing estimates of the size of the occupying force needed in Iraq, cost him his career. When Ambassador Joseph Wilson blew the whistle on Bush’s claims about African uranium, his wife’s CIA cover was exposed. Vague allusions to the possibility that former Treasury Secretary Paul O’Neill might face prosecution for removing classified material when he left government circulated in the wake of his tell-all memoir. And most recently, Richard Foster, the Medicare actuary who tried to tell Congress how much Bush’s prescription plan for seniors would cost, said his job was threatened.

Bush’s team plays for keeps. Giving folks like that petty morals laws to play with at their discretion is a recipe for disaster. Thank God that even the Rehnquist court saw fit to jettison the nation’s sodomy statutes.

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