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Huawei Iran-Sanctions Evidence Is Too Risky for China to See

June 19, 2019
Some of the evidence can only be reviewed by defense lawyers who are U.S. citizens, because the information could identify potential witnesses or contains “national security” material, prosecutors say.

Some evidence used to charge Huawei Technologies Co. with bank fraud and violating U.S. sanctions on Iran was deemed so sensitive that the Chinese telecom giant’s lawyers must now take unusual steps to review the information -- and even then, the company may never see it.

While specific evidence wasn’t disclosed, prosecutors convinced a federal judge that releasing too much would pose a risk to national security and other governmental concerns. The U.S. already had banned the company’s technology and accused Huawei of aiding Beijing in espionage. Last week, the court imposed restrictions on when and how information in the criminal case gets shared, and who can see it.

“What underlies all of this is the allegation that there are deep and close connections between Huawei and the Chinese government,” said Ryan Fayhee, a former Justice Department national security lawyer. “That’s why this presents differently than a traditional fraud case.”

The Huawei prosecution has forced government lawyers to balance evidence rules and a defendant’s right to a fair trial, while safeguarding intelligence gathering. A similar dilemma has threatened to undermine a case brought by Special Counsel Robert Mueller against 16 individuals and companies in Russia over election meddling, because the government is refusing to disclose some sensitive evidence.

For now, the Huawei case is proceeding with disclosures to the company’s American defense lawyers under restrictions set June 10 by U.S. District Judge Ann Donnelly in Brooklyn, New York. On Wednesday, she scheduled a Sept. 4 hearing to decide whether one Huawei lawyer, James M. Cole, should be disqualified because he had access to classified data when he worked as a Deputy Attorney General of the U.S. from 2011 to 2015. Cole, now a partner at Sidley Austin LLP, has said he has no conflict.

Unusual Restrictions

Donnelly’s order includes unusual restrictions, even for sanctions cases, legal experts said.

Some of the evidence can only be reviewed by defense lawyers who are U.S. citizens, because the information could identify potential witnesses or contains “national security” material, prosecutors say. Those documents must be stored on a computer that isn’t connected to the Internet and can’t be taken or transmitted outside the country or shared with Huawei.

If Huawei lawyers want to share sensitive material with anyone outside the U.S., they must notify the government. There are also provisions for allowing foreign nationals to view the evidence in the U.S., including with safe-passage guarantees against arrest. There also are options for reviewing information outside the country, but only in the presence of U.S. defense lawyers.

Without such provisions, Huawei could accuse the U.S. of hampering its ability to defend itself, said Henry Mazurek, a partner at law firm Meister Seelig and Fein LLP in New York.

Huawei’s close ties to the Chinese government have impacted the willingness of the U.S. to share evidence with the company, but prosecutors are obligated to turn over evidence, said Fayhee, the former federal prosecutor.

“The government has the view, as also substantiated by its recent blacklisting, that Huawei is an arm of the Chinese government,” Fayhee said. “The founder of the company served nearly a decade as an engineer with the People’s Liberation Army, and continued connections have been regularly alleged. But that’s what the government signed up for when it decided to bring this case.”

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