Attorneys for the Navy officer accused of spying are expected to argue Monday that the naval flight officer's constitutional rights have been violated and that the service prejudiced the upcoming court-martial by the government dismiss the charges accused spy Edward Lin are set to argue Monday that the career Naval Flight Officer’s constitutional rights have been violated and that the Navy prejudiced the proceedings by orchestrating an "avalanche of negative press" ahead of the trial.
In a strongly written motion obtained by Navy Times, Lt. Cmdr. Edward Lin’s attorneys argue that since Lin has been in confinement for nearly a year, he has been denied his constitutionally guaranteed right to a speedy trial and that charges should be dismissed.
"The court should grant the defense motion to dismiss all charges and all specifications thereto, with prejudice for a lack of speedy trial," wrote Lin's civilian attorney, Larry Youngner (CQ).
"An accused's right to a speedy trial is most fundamental. LCDR Edward Lin has languished in pretrial confinement since 11 Sep 2015, while the government has investigated his alleged offenses since 2 April 2014 ... It is time to stop this injustice."
Lin, who is attached to a secretive maritime patrol squadron in Hawaii, was held in confinement for nearly seven months without being sent to an Article 32 hearing, the military equivalent of a preliminary hearing, and remains in pre-trial confinement. He was arrested in the airport in Honolulu on Sept. 11, 2015, and appeared at an Article 32 preliminary hearing in April. Lin, a Taiwan native who became a naturalized U.S. citizen in 1998, is accused of espionage and attempted espionage, including for allegedly passing information to an undercover FBI agent, Lin's attorneys said in the preliminary hearing.
The court filings obtained by Navy Times reveal new details about the investigation of Lin, codenamed "Rogue Archer" by investigators, which uncovered some alleged unreported travel to Asia and his ongoing contact with Taiwanese diplomats and military staff on defense matters.
The government's attorneys' responded to the speedy trial motion by claiming that Lin's attorneys never demanded a speedy trial and that the defense was aware of all the relevant dates and delays in the case as they were happening. The general court-martial date has been set for late October.
Additionally, Lin's attorneys accuse the Navy of orchestrating negative press attention, asserting that it amounted to unlawful command influence.
Pointing to dozens of news articles that label Lin an alleged spy and cite unnamed Navy and Pentagon sources, Lin's attorneys argue that the Navy and U.S. Fleet Forces Command initiated a "full-court press" of media that has made it impossible to render a fair verdict in the trial.
The media attention, the defense argues, has also hobbled Lin’s attorneys’ ability to gather witnesses. Lin is accused of passing secrets to Taiwan, but Taiwanese nationals involved in the case have declined to be interviewed or to testify because of the media attention.
"The accused has been prejudiced by the Government's media campaign, in so much that it will not be able to put on a valid defense for many of the charged offenses."
The Navy Office of Information declined to comment on on the motion. Fleet Forces Command similarly declined to comment through a Navy spokesman.
The government responded to the motion, arguing by saying the defense had failed to demonstrate evidence of a media campaign and said the public affairs response was entirely generated by queries from the media, including USNI News, which broke the story April 10, and Navy Times, which followed with its own version story shortly thereafter.
The motion raising the possibility of unlawful command infuence raises some serious issues, said Timothy Parlatore, a New York criminal defense attorney and former surface warfare officer who does pro-bono UCMJ work with sailors.
"This could be one of his strongest arguments," Parlatore said. "The Government's opposition doesn't seem to address several of these significant issues, instead concentrating of the release of trial materials to the press. Presumably, the judge will order a hearing on this issues, which will be very interesting to watch."
Lin's attorneys are also focusing on a number of other charges, raising constitutional and due process issues with several of the charges and specifications.
One of the specifications of failing to obey a lawful order related to mishandling of classified information. It tracks back to a crew manifest left in his luggage, according to the motion. In Lin's top secret world, the list of names in the air crew are secret controlled.
In May, Lin's bags were searched at the San Francisco airport and security found old Navy flight manifests in his bag. A Department of Homeland Security agent interviewed him and Lin claimed the records were stuffed in his flight suit from last year and he had never pulled them out.
Lin abandoned the records to the agents who said they would destroy it, but Lin never reported the compromise of the classified information. His lawyer argues that there is no duty to self-report because it would violate his Fifth Amendment right against self-incrimination, a precedent that has been upheld in the Uniform Code of Military Justice.
The government is set to argue that Lin violated established security procedures that govern classified information handling and ignored the reporting requirements for compromised secret-controlled information when he turned over the flight manifests to a third party — albeit agents from Homeland Security who told him they would destroy the records.
One of the charges —, three specifications of false official statement, — relate to leave chits where Lin, instead of listing his ultimate destination, listed his home address in California instead of listing his ultimate destination. Lin’s attorneys argue that two of the three specifications — travel in 2011 and 2013 — should be dropped because he is being charged as if he were in Hawaii, where his unit is, even though he was not in Hawaii at the time.
The government's motion concedes that the jurisdiction claims are an issue, but argue that they can make the correction without violating Lin's rights and that the substance of the charge doesn't change: Lin put down a false destination in his leave requests.
The defense is also looking to supress statements made by Lin over two days of interrogation after his arrest in the airport. The government says that Lin signed a waiver of his rights to conduct the interview. But Lin's attorneys argue that the audio of the encounter clearly demonstrates that agents didn't properly advise him of either the crimes he was suspected of or his right to an attorney. Furthermore they ignored Lin's request for clarification, even though the transcript says he did not have any questions, the motion said.
Parlatore said that the contradiction between the transcript and the audio should be enough to suppress the statements.
"Significantly, the defendant is asserting that the written investigation report (which stated that he had no questions) is directly contradicted by the recordings of the actual interrogation," Parlatore wrote in an email. "This raises significant issues about the integrity of the agents and their investigation.
"This, combined with the agents failure to properly advise LCDR Lin of the crimes he was suspected of committing, should lead to suppression of the statements."
'Rogue Archer'
The motions also shed light on new details of the NCIS investigation into the accused spy. The court’s ruling on a previous motion, which denied Lin release from pretrial confinement, details a number of the key allegations arising from the levied at Lin through the NCIS investigation.
Notably, there is no mention at all of any allegations of spying for the People's Republic of China, which was widely reported by media that reported by nearly every major news outlet in the country in April and cited to defense and government sources.
Lin was placed under investigation in April 2014. Labeling Lin "Rogue Archer," the investigation uncovered both "personal and impersonal contact" with representatives from the Taipeiwan Economic and Cultural Representative Office in Washington, D.C., which is Taiwan’s de-facto embassy.
During that time, he Lin was part of the Taiwan Young Scholars program. and u Under its auspices, he traveled to Taiwan took a trip there o that country in 2011, which was paid for by the Taiwanese government. Lin did not disclose the trip to the Navy. and not reported to the Navy by Lin.
He traveled again to Taiwan in 2013 to visit family, but he again met with a former naval attaché from TECRO while he was there, according to the documents.
Taiwan has denied any involvement in the case and denies that it was spying on the U.S.
During a search of his emails, agents uncovered a handful of emailsi to TECRO representatives, some of which discuss weapons programs such as submarine-launched torpedoes. In one email, a TECRO representative asks Lin if the results of weapons tests were releasable, to which Lin responded that they were usually classified secret but that some secret information was shareable under security agreements. Investigators discovered Lin then was shown to have gone in and modified unclassified briefs dealing with that torpedo program on his computer, but there is no evidence he shared them.
In fact, each of the emails listed as compelling evidence used to deny his release from pretrial confinement appear to be fairly mundane. One email asks Lin about the U.S. military draft program, to which Lin responds that the sender should check out the Selective Service website.
In another email, Lin sends a TECRO representative a link to an unclassified All-Navy message dealing with sequestration. Another email was a news article with some notes, all unclassified.
In denying the motion to release Lin, the judge said he had shown a "dangerous pattern of disclosure of classified information," but did not point to any disclosures of classified information.
The Navy and Lin's attorneys declined to comment on these motions in the high-profile case.
David B. Larter was the naval warfare reporter for Defense News.
