LAW FROM THE CENTER

A few hours ago, Reuters reports that Army Chaplain James Yee, who was originally charged with espionage and is now charged with mishandling classified information in violation of Army Regulations as well as adultery, has had his hearing postponed for the fifth time in three months:

A spokesman for the U.S. military's Southern Command declined to give a reason for the latest delay in the hearing to determine if Capt. James Yee should face a court-martial. Yee's lawyer said the military's case was in disarray.

Previous delays since the start of the hearing in December at the Fort Benning Army base 100 miles southwest of Atlanta were granted to allow the Army and defense more time to review evidence, which includes classified documents.

"This is the end of the line. They have got to pull the plug on this," said Eugene Fidell, a civilian attorney who began representing Yee several weeks after his Sept. 10, 2003, arrest in Jacksonville, Florida.

ANALYSIS: Mr. Fidell's remarks are very telling. Military prosecutors, according to regulations, have 120 days to bring a case to trial from the day charges are preferred. The hearing this story most likely refers to is the Article 32 hearing, which amounts to a civilian preliminary hearing. Although the news story says that the hearing has been postponed for only three months, this does not count the amount of time that Captain Yee was held in confinement before preferral of charges. Since he was held in pretrial confinement, the 120-day clock starts from the day he is held, NOT the day charges are preferred.

Defense-requested delays are not counted in that clock. However, Mr. Fidell's remarks that "[t]his is the end of the line," and that "[t]hey have got to pull the plug on this," seem to allude to the fact that the 120-day clock may be winding down.

A word about Mr. Eugene Fidell. He is to a court-martial the equivalent of Johnnie Cochrane to the civilian criminal court. He is the President of the National Institute of Military Justice, the American Law Institute of the military world. He is also a high-profile Washington Attorney. I wrote about him here. Whenever he walks into a military courtroom, everyone wearing JAG insignia knows who he is. Many military trial and appellate judges are personal friends of his. When he opens his mouth, he has instant credibility. The fact that he is representing Captain Yee, and that he is alluding to the fact that this case is at the "end of the line," is very telling indeed. This case may evaporate in a matter of days.