Judge Rejects Request To Subpoena Reporter in China Spy Case

SAN FRANCISCO — A federal judge has refused to allow a reporter for the Washington Times to be subpoenaed by defense attorneys in a case stemming from allegations of Chinese espionage at American defense contractors.

Lawyers for one of the defendants in the case, Chi Mak, argued that the newspaper's top national security correspondent, William Gertz, should testify about leaks he allegedly received of classified information about the prosecution.

Judge Cormac Carney, who is based in Santa Ana, Calif., rejected the request, ruling that the legality of the government's wiretaps under the Foreign Intelligence Surveillance Act should be assessed solely on the basis of the paperwork the government filed to seek warrants for the surveillance.

"Any classified information Mr. Gertz may have received is irrelevant to the court's inquiry," Judge Carney wrote in an order dated October 16.

An attorney for Mr. Mak, Ronald Kaye, declined to discuss the motion to subpoena Mr. Gertz. A copy of the defense's legal filing was not available last week from the court. Mr. Gertz is renowned in Washington for obtaining and publishing classified reports. It is unclear precisely what prompted the interest of defense attorneys, but the case against Mr. Mak is discussed at length in Mr. Gertz's latest book, "Enemies."

Mr. Mak, a China-born naturalized American citizen is charged, along with four of his family members, with failing to register as an agent of the Chinese government. Prosecutors contend that he stole details about Navy-related propulsion technology from his employer, Power Paragon, and arranged to deliver them to Chinese agents. Judge Carney has ordered that Mr. Mak stand trial separately from the other defendants because of what the judge said was a "powerfully incriminating" confession by Mr. Mak. All of the defendants have pleaded not guilty. The judge did not rule on whether Mr. Gertz could be called as a witness at trial. There is no indication that the defense has made such a request.

The government opposed the subpoena to Mr. Gertz, but did not say in its filing whether any investigation into the alleged leaks is under way.

In a similar case, involving two pro-Israel lobbyists accused of obtaining classified documents, a federal judge in Virginia recently ordered a Justice Department probe into alleged leaks to CBS News.The results of that inquiry have not been made public.