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Judge redacts records in FBI spying case, but won't issue deletion order

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Judge redacts records in FBI spying case, but won’t issue deletion order

  • A federal judge in California ordered redactions to two pleadings that had already been made public, but rejected prosecutors attempts to have those pleadings erased from private computers, which would include those of a newspaper and a First Amendment organization.

Oct. 23, 2003 — Citing national security concerns, a federal judge in Sacramento, Calif., has taken the unusual step of ordering redactions to two pleadings, including a civil rights group’s friend-of-the-court brief, that had already been publicly disseminated in their entirety.

U.S. District Judge Garland E. Burrell Jr. ruled Oct. 10 that two pleadings in the civil-rights lawsuit by former FBI agent Lok Tyhe Lau must be redacted because they contain classified national security information. He rejected the government’s broader request to let the FBI seek out and delete unredacted electronic copies that were already in the public’s possession. The request would have affected computers of, among others, the San Antonio Business Journal and the California First Amendment Coalition, which posted the filings on its Web site.

Burrell’s denial of the “search-and-destroy” request was without prejudice, meaning the government could choose to renew it at a later date. Justice Department officials told The Associated Press they are still deciding whether to do so.

The pleadings at issue are a 30-page declaration by Lau and a seven-page friend-of-the-court brief filed on his behalf by the League of United Latin American Citizens (LULAC), a Hispanic civil rights organization. Although Lau is Chinese-American, LULAC got involved because the case “will have [a] momentous effect on minorities and other people of color who work for the government of the United States,” according to its brief.

“This is really just an effort to keep the public and media from knowing what’s going on in the case,” said Rev. Julie Marquez, chairperson of the LULAC committee that filed the brief.

Marquez, who has seen unredacted versions of both documents, denies that they contain classified information. “I absolutely dispute that there was any sensitive, classified information in [Lau’s] declaration or our brief,” she said.

In court papers, Lau claims he conducted spying missions for the FBI in unidentified foreign countries in the 1980s — a controversial allegation, given the FBI’s mandate of domestic law enforcement. But many details of his activities are classified, and were omitted even from Lau’s original declaration.

Marquez says the government is attempting to deflect attention from what may have been an illegal operation. “The FBI is not supposed to be spying overseas,” she said.

Lau says the FBI fired him because of his Chinese heritage and psychological disabilities the FBI itself caused, by repeatedly exposing him to extreme stress as an undercover operative between 1986 and 1991, allegedly with inadequate training and support. Lau says he was treated as an outcast when he began regular field duty in 1991.

The FBI says Lau was fired for deficient performance and bizarre behavior, including two alleged shoplifting incidents.

Many details of Lau’s activities, including the countries to which he allegedly traveled, are classified. According to an Oct. 13 report in the San Antonio Business Journal, even Judge Burrell and the lawyers handling the case do not yet have the necessary security clearance to obtain access to all the facts.

The government has not indicated whether it will seek to seal additional documents or proceedings in the case.

(Lau v. Ashcroft) JM

© 2003 The Reporters Committee for Freedom of the Press

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