Eugene Fidell made his argument Monday to the military judge, Col. Dan Trimble, who is presiding over the preliminary hearing of Capt. James Yee, who previously served at Fort Lewis, Wash. The proceeding continues Tuesday.
"I have a lot of frustration," Fidell said. "The government's cart is before the horse. It's crazy."
Fidell told Trimble the documents he needs to see include two small notebooks, a typewritten page and a term paper on Syria that Yee had written for a college course on international affairs.
The defense also requested access to two detainees referenced in some of the documents. Trimble said he would not rule at this point in the proceeding.
The Army is reviewing the confiscated documents, prosecutors said.
Yee is charged with storing pornography on his government laptop computer, making a false statement and adultery, a crime under military law. He was arrested Sept. 10 when he returned to the United States for a holiday from Guantanamo, where he worked with suspected terrorists. He was held in a Navy brig for 76 days before being released and charged.
The hearing will determine if there is enough evidence against Yee to warrant a court-martial. It's just a formality, reports CBS News Correspondent Sharyl Attkisson.
Initially, it was rumored, by an unnamed government source, that Yee was possibly involved in some sort of espionage, but he's never been charged with that, reports Attkisson. He was held in solitary confinement for more than 10 weeks, indicating that somebody thought he must be some kind of threat, and yet at the end of that time, they released him. They didn't drop the charges against him, which were security breaches, but didn't charge him with espionage.
"He hasn't committed any spying," said Fidell. "These are ridiculous, preposterous suggestions and there are no charges like that on the table."
Fidell says the government is simply hoping it can throw all kinds of charges out there and hope that something sticks. The attorney says this is because clearly the military hasn't found a way to charge Yee with espionage, as it originally it appeared they were trying to do, so now they're looking for any little thing, to either embarrass him or keep him behind bars or make it so he doesn't get off without any penalties.
In court Monday, a specialist with the Army's Computer Crime Unit testified by telephone that she found what she considered pornographic pictures on Yee's laptop. Warrant Officer Jennie Callahan said some pictures were similar to those in lingerie catalogs, while others were more explicit.
Callahan said she also found evidence that the computer had been used to access some adult Web sites.
Under a grant of immunity, Navy Reserve Lt. Karen Wallace testified that she had sex with Yee about 20 times at his quarters in Guantanamo and at a motel in Orlando, Fla., where he was attending a conference. She said she knew he was married.
Yee's wife, Huda, of Olympia, Wash., who arrived at the courthouse Monday along with her 4-year-old daughter and Yee's parents, sat stone-faced during Wallace's testimony. But during a break, she sat on a bench outside the courtroom and dabbed at her eyes with a tissue. Yee's mother comforted her.
At the hearing Monday, a Customs agent also testified Yee had "suspicious" documents related to national security in his backpack when he left the U.S. military base at Guantanamo.
Yee is a 1990 West Point graduate who left the military for four years to study Arabic and Islam in Syria. After his return to the Army as a chaplain, he counseled some of the 660 suspected terrorists from 44 nations being held at the remote base on the eastern tip of Cuba.
"In general, I do have access to the detainees to be able to speak and talk with them," he told CBS News' 60 Minutes II in September.