"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."
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 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 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.
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.
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."
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.
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.
David B. Larter was the naval warfare reporter for Defense News.