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The Associated Press
July 5, 2000

Show-and-tell deadline passes;
defense issues new warrant challenge

Associated Press Writer

Defense lawyers filed a new challenge Wednesday against the warrant used to search a scientist's home, saying any evidence seized from Wen Ho Lee should be barred from his trial.

The lawyers filed a separate challenge Wednesday to the government's refusal to use Wen Ho Lee's computer files as evidence.

The defense attorneys told U.S. District Judge James Parker the government was seeking to skirt the "best evidence" rule, which says original documents, rather than copies or summaries, are to be used as evidence when available.

"We expect to raise significant challenges to any summary the prosecution offers," defense lawyers Mark Holscher and John Cline said in their filing Wednesday.

The lawyers are preparing for a closed July 12 hearing on what classified evidence may be introduced.

Lee has a right to be confronted with "concrete and particular" evidence, defense attorneys said. "Vague substitutions drafted by the prosecution cannot possibly vindicate these basic rights."

The defense enclosed a copy of a July 3 letter from Assistant U.S. Attorney George Stamboulidis saying: "We do not intend to offer the classified materials (Lee's computer files) ... into evidence at trial."

The defense response came on the day the government had been ordered to reveal what nations were allegedly intended beneficiaries of Lee's actions at Los Alamos National Laboratory.

Accused of transferring restricted data from secure to unsecure computers and computer tapes, the 60-year-old scientist could face life in prison if convicted.

But for that to happen, the government must prove Lee downloaded the files with intent to harm the United States and secure advantage for a foreign nation.

The FBI has said that when Lee was listed among scientists targeted for potential layoffs in 1993 and 1994, he sought employment in his native Taiwan as well as in Hong Kong, Singapore, Switzerland and Germany.

Lee's daughter, Alberta, has said her father also applied at several U.S. companies - a fact she said prosecutors "tend to overlook."

Ultimately, Lee, a naturalized U.S. citizen, was never laid off, so the layoff issue was moot, Cline said.

Prosecutors have not said whether any of the five nations mentioned by the FBI were intended beneficiaries of Lee's actions. They argued they did not need to specify a nation.

The judge ordered them to list by Wednesday night any nation that might be included in their allegations. By close of business, the document had not been filed. A prosecution spokeswoman said it would probably be left in a court drop chute overnight, unavailable until Thursday.

The new warrant challenge was filed after FBI agent John Lowe's testimony last week that agents used discretion in deciding to seize Lee's personal papers and books April 10, 1999.

Federal courts demand warrants so specific that "nothing is left to the discretion of the officer," the defense contends.

"Agent Lowe's testimony that the government took only 10 percent of these books and personal effects shows only that the agents - not the warrant - limited what items could be seized," it says.

As for classified evidence, the defense said Lee "expects to prove at trial that at relevant times, virtually all of the information at issue was either available in the open literature or could be readily derived from the open literature."

They disputed prosecution arguments that "open literature" designations are irrelevant.

Steven Aftergood, who directs the Project on Government Secrecy at the Federation of American Scientists, agreed the open-literature question was "clearly relevant because it affects the court's assessment of any damage to national security that might have resulted."

"If similar or comparable information is already in the public domain, then any further disclosure would be a technical violation of the law at most," Aftergood said Wednesday in Washington, D.C.

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