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
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
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
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.
The Wen Ho Lee Page