U.S. Plans to Drop Wiretap Evidence

Faced with a challenge by defense lawyers, federal prosecutors have dropped their plan to use evidence gathered during covert searches, wiretaps and bugging at the home of retired FBI counterintelligence agent James J. Smith in their case against him.

Smith, who supervised accused Chinese double agent Katrina Leung, is facing trial in Los Angeles on charges of criminal gross negligence and dishonesty in the line of duty.

From April 2002 until his arrest a year later, Smith was the subject of intense surveillance that apparently included furtive entries into his Westlake Village home, tapping of his telephone, and interception of his e-mails and faxes. The FBI, according to a court affidavit, bugged a Los Angeles hotel room where Smith and Leung allegedly had sex.

Those intrusions were authorized by the little-known, secretive Foreign Intelligence Surveillance Court in Washington, D.C. To obtain a special surveillance warrant, federal investigators must allege that the intended target is an agent of a foreign power.

Recently, Smith’s defense lawyers, Brian Sun and John D. Cline, filed a motion demanding to see the FBI’s application for the surveillance warrant.

The law provides that any evidence gathered from an improperly authorized warrant can be suppressed. Two years ago, the Foreign Intelligence Surveillance Court reported to Congress that the FBI had given false information in 75 out of 250 affidavits submitted to obtain warrants. The Justice Department said the criticism was overblown and outdated.

Responding to Smith’s request, federal prosecutors filed papers last week, stating that the issue was no longer “ripe” because they did not intend to use any evidence gathered as a result of the warrant.

Asked why, the U.S. attorney’s office declined to comment Wednesday.

Smith’s lawyers declined to speculate on the government’s reasons. But other defense lawyers familiar with the Foreign Intelligence Surveillance Act said it appeared that prosecutors were trying to avoid any possibility of an unfavorable ruling from U.S. District Judge Florence-Marie Cooper, the trial judge assigned to the case.

Joshua Dratel, a New York attorney and coauthor of a brief challenging the act, said he knew of no instance in which the government had agreed to disclose the contents of a request for a foreign intelligence surveillance warrant. He said he was unaware that any federal judge had ordered disclosure.

This does not mean that the prosecution is giving up its case against Smith. On Friday, the defense filed a motion demanding that the prosecution produce the FBI’s application for the surveillance warrant issued against Leung. Smith’s lawyers said the prosecution evidently was planning to build its case against Smith on evidence that had been gathered under that warrant.

Smith and Leung allegedly were lovers for two decades. He spent many hours at her home in San Marino. Investigators said he often took his briefcase, crammed with classified documents, to the home. Leung allegedly told FBI interrogators that she removed some of those documents and copied them.