During the CIPA process the defense demands to see every scrap of evidence it can possibly claim to be relevant — here, all the information in the files that Lee allegedly illegally downloaded. The government can argue some of the items demanded are not relevant, or it can offer unclassified summaries as substitutions.
At this point the judge has ruled that much of what the defense wants is indeed relevant to the case. The prosecution will now propose substitutions, the defense will accept or refuse them, and the judge will rule. If the judge were to order that certain items be revealed and the government refused, the resolution would be dropping counts or even the entire case. That happened to Lawrence Walsh in Iran-Contra, when he had to drop the charges against former CIA official Joe Fernandez.
The second issue at the hearings will be the defense charges of selective prosecution — that Lee was unfairly targeted by investigators and prosecutors, largely because of his ethnicity.
I wrote a few weeks ago about the defense motion. The government’s response was equally hard-hitting: “Lee has failed to present any evidence … [that] the Department of Justice decided to prosecute Lee, even in part, because of his ethnicity. Lee also has failed to produce any evidence that another individual has committed acts even remotely similar to his own.
“Lee cannot point to any other person who has downloaded America’s nuclear secrets onto seven missing portable tapes — without any conceivable work-related reason — who has not been prosecuted.”
Finally, the judge has agreed to hear renewed arguments from the defense that Lee should be released on bail until his trial, albeit under house arrest with stringent safeguards.
The government promises to consider relenting on some conditions, but still argues it is entitled “to impose restrictions on Lee’s communications in order to protect national security.” The filing maintains Lee continues to pose a danger to the nation if he were released, and also presents a risk of flight.
So it’s possible, but not likely, that the judge could order Lee released next week.