Defense Seeks to Throw Out Documents in Secrets Case

Todd Purdum - The New York Times - June 27, 2000

ALBUQUERQUE, June 26 - Federal prosecutors and lawyers for Wen Ho Lee, the government scientist accused of mishandling nuclear secrets at the Los Alamos National Laboratory, wrangled today over the defense's motion to suppress a raft of documents seized at Dr. Lee's home last year on the grounds that the warrant used was unconstitutionally broad.

The daylong hearing, sometimes tense, ranged from seemingly technical concerns like whether the warrant was stapled to the sealed affidavit prosecutors used to obtain it, to sweeping arguments over whether the affidavit itself was so broad as to violate the Fourth Amendment's guarantees against unreasonable search and seizure.

Dr. Lee, 60, was indicted in December on 59 counts of illegally downloading secret data to unsecured computer files from the Los Alamos weapons laboratory where he had worked, then copying the files to computer tapes, some of which have since vanished. He has pleaded not guilty and is being held without bail. Dr. Lee faces life in prison if convicted at a trial set for November.

Today's hearing was the latest in a series of pretrial arguments, but a ruling invalidating the warrant and suppressing evidence seized at Dr. Lee's home in White Rock, N.M., on April 10, 1999, could cripple the prosecution in a case that the government has described as threatening the nuclear balance of power and Dr. Lee's defenders have characterized as a racist witch-hunt.

In the search, some 15 F.B.I. agents took computer-related files, and a total of 10 big boxes of material, including a book of plays by Tennessee Williams and short stories by Guy de Maupassant, because, an agent testified today, they had phone numbers and Chinese characters written in them or on slips of paper tucked inside.

But the warrant shown to Dr. Lee that day made no reference to specific items sought, simply noting they were detailed in an affidavit which the government had asked a judge to seal on national security grounds and would not show Dr. Lee or his lawyers at the time.

"Simply put, this is the worst warrant that any members of this defense team have ever seen," said Mark Holscher, one of Mr. Lee's lawyers.

He also sharply criticized the affidavit's list of various categories of items to be seized, and its repeated use of the phrase "includes but is not limited to," as impermissibly broad under existing federal court precedents requiring that such an affidavit in support of a warrant must be formally "incorporated" into the warrant itself.

Prosecutors contended that the warrant was not technically flawed, but suggested that even if it was, the F.B.I. agent who wrote it and the magistrate who signed it were acting in good faith on an urgent matter. The warrant was written shortly after Dr. Lee permitted a search of his office and investigators discovered that the files were missing.

"To grant this motion, the court would have to promote a staple to constitutional significance," said the lead prosecutor, George A. Stamboulidis, in arguing that the agent in charge of the search had all the documents together in a single manila envelope at the time.

The F.B.I. agent, Michael W. Lowe, testified that items like the book of plays were seized because they contained Chinese writing that might have been relevant to the investigation and could not have been readily translated on the scene during the four-hour search.

Throughout the hearing today, Judge James A. Parker asked a series of patient, probing questions of both sides, but seemed to press the defense lawyers in particular to justify any implication that the government might have acted in bad faith. He made no ruling from the bench, and neither side would predict when he might issue one in writing.

Separately, Judge Parker ordered the prosecution to provide a list, by next week, of possible foreign nations that it may argue Dr. Lee intended to help by downloading the highly sensitive data. He had been under investigation on suspicion of passing secrets to China, but has not been charged with espionage.

Also today, the defense filed a separate motion seeking to compel the government to provide various material, including Energy Department counterespionage training videos, that Dr. Lee contends will show that he was a target of selective prosecution, and that "ethnic Chinese" workers had been the subject of racial profiling by federal counterintelligence investigators.

Judge Parker set a hearing date of Aug. 15 on that motion.

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