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Toobin: Detained Army cleric's future unclear

CNN legal analyst Jeffrey Toobin
CNN legal analyst Jeffrey Toobin

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A U.S. Army chaplain is being investigated for possible espionage and treason.
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On the Scene
Jeffrey Toobin
Soledad O'Brien
Guantanamo Bay Naval Base (Cuba)

WASHINGTON (CNN) -- Administration sources Monday told CNN there is a broad military, law enforcement and intelligence investigation into possible security breaches at the U.S. Navy base at Guantanamo Bay, Cuba, following the arrest of an Islamic U.S. Army chaplain.

The cleric, Capt. James Yee, has not been charged with any crime. Yee was taken into custody September 10 at the Naval Air Station in Jacksonville, Florida, after he was found to possess classified documents about the facility, where alleged al Qaeda members are being held, sources said. CNN's Soledad O'Brien spoke with legal analyst Jeffrey Toobin about Yee's situation.

O'BRIEN: First of all, he hasn't been charged. But for the sake of discussion, let's say he is charged. Specifically what would he be facing?

TOOBIN: There are various possibilities. Espionage is one possibility because you don't have to be a member of the military to engage in espionage. Anyone who helps an enemy of a country, anyone who helps give secret information to one of our adversaries, that could be espionage.

He's in a potentially worse situation because he could be charged with treason as a member of the military helping another country or another entity overthrow or injure the United States, which is an extremely rare but a very serious charge.

O'BRIEN: Does Yee's position as a cleric complicate things? Would information he had about people he ministered to be admissible in court?

TOOBIN: Well, you know I have to say I don't think the answer to that is clear at this point. Many clergy people in dealing with their parishioners have a privilege, the most famous in the Catholic faith -- the privilege of the confession.

But here in the military, it really hasn't come up very often, what is admissible from a chaplain's conversations with people he's ministering to. It's a little different there because they're expected to treat or counsel people of different religions, although he's mostly counseling Muslims here. It's hard to know.

It certainly would be a complex legal issue that would be highly relevant in the prosecution of him.

O'BRIEN: There are lots of "ifs" and "mights," [such as] if he may have been carrying classified information. Why do you think this information would be leaked to the media? He's been held now for almost two weeks.

TOOBIN: I never know why things are leaked and why they aren't. And often I think it's just happenstance. Things leak out that are not intended to leak out.

They can't hold him forever without pressing charges. It's been 11 days now. I think certainly they're going to have to put up or shut up. At some point it's a very difficult situation and really very interesting.

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