Both Sides Confront Legal Risks on Nuclear Secrets

James Sterngold - The New York Times - June 19, 2000

ALBUQUERQUE -- Emboldened by the latest security scandal at the Los Alamos National Laboratory and several other breaks, the lawyers for Wen Ho Lee, the scientist accused of mishandling a trove of nuclear weapons secrets, plan a courtroom assault in coming weeks that could all but decide the case before the trial.

If the lawyers win some crucial judicial rulings, they could severely limit the government's ability to prosecute Dr. Lee.

But should they lose, the strategy could also create serious risks for Dr. Lee's defense, particularly since his lawyers have indicated a great reluctance to plea bargain.

In recent weeks, the government replaced its lead prosecutor with another who is well regarded but lacks experience in these kinds of trials, and the federal district judge who had been overseeing the case suddenly withdrew and assigned it to a judge whom the defense regards as more independent-minded.

But the unexplained disappearance and then suspicious reappearance last week of two computer hard drives packed with nuclear secrets amounted to a potential legal "bombshell," said one government official involved in Dr. Lee's case.

Although not directly related to Dr. Lee, the security breach would seem to bolster his contentions that security at the laboratory had long been lax, that scientists there had routinely moved classified material without witnesses or signing logs and that doing so was not necessarily a sign of malice, just expedience or perhaps carelessness.

"This is huge," another government official conceded. "You have to think about how this would affect a jury using common sense."

Dr. Lee's lawyers are expected to use the episode involving the hard drives in their battle to have Dr. Lee, 60, released on bail, perhaps within the next few weeks. He has been in jail in Santa Fe, N.M., under unusually harsh conditions since his arrest and indictment in December. The government insists that he poses a grave national security risk and that even a seemingly benign remark in the presence of a foreign agent could enable a transfer of data that could, as one witness for the government said at an earlier hearing, "shift the global balance of power."

Yet one of the people who was most strident in voicing such concerns was Stephen M. Younger, the head of the nuclear weapons program at Los Alamos; he was also among the six people placed on leave after it was disclosed that the computer hard drives had vanished.

The defense is also likely to raise at a bail hearing the earlier disclosure that the data Dr. Lee downloaded was not officially designated classified at the time it was transferred, as the prosecutors have said, but carried a less restrictive designation common for large volumes of scientific data called "protect as restricted data," or PARD.

The rules on handling PARD material are looser and, the defense will argue, the exposure of such information would pose far less of a security risk.

This overall strategy failed at the last bail hearings in January, but the defense is hoping the new information about the classification of the data and the recent security lapse will convince the judge that Dr. Lee deserves bail.

"I think the latest disclosures show that there are systemic problems with the handling of sensitive information at Los Alamos, and it points out the unfairness of scapegoating Dr. Lee for what he did," said Mark Holscher, one of Dr. Lee's lawyers. "The information that has now disappeared carried a far more sensitive classification than the material Dr. Lee downloaded. There was just an unjustified hysteria around the material he moved to an open system."

Dr. Lee's case has also been taken up by Asian-Americans, whose leaders have complained that he is being prosecuted selectively because he is Chinese-American, an accusation the government has denied.

The prosecutors would not comment on the latest developments related to the case.

Further heartening the defense was the government's sudden decision to bring in -- just before these crucial hearings -- a new lead prosecutor, George A. Stamboulidis, an assistant United States attorney on Long Island. He has had great success in prosecuting organized crime and political corruption cases, but he has no background in nuclear issues or national security matters.

The defense was also not unhappy when the judge who had been overseeing the case, John Edwards Conway, unexpectedly said he was assuming senior status, a sort of semiretirement, and recused himself from the case. It was assigned to Judge James A. Parker of Federal District Court. Judge Parker denied Dr. Lee bail at the hearings in January, but the defense regards him as more independent than his predecessor in dealings with the prosecutors.

As a result of these developments, the defense is brimming with confidence as it approaches the two coming hearings.

The defense's agenda for the hearings will involve efforts to suppress the evidence gathered at Dr. Lee's home because of a faulty warrant -- a tactic whose success, considered a long shot, could cripple the prosecution -- and an even more important attempt to introduce all the data Dr. Lee downloaded, equal to more than 400,000 pages, at his trial. This is being done under a special law for dealing with classified information called the Classified Information Procedures Act, or CIPA.

John Cline, another of Dr. Lee's lawyers, has said the defense would use the data to back up its claim that "virtually all" the esoteric physics, testing and design information had already been made public in academic journals and other forums, making its transfer by Dr. Lee to an unsecure computer and portable computer tapes more benign.

The government has called the information "the crown jewels" of the American nuclear arsenal, a library of information on how to design more sophisticated weapons. So if the judge agrees with Dr. Lee, and the defense prevails in the expected appeals, the government will have to decide whether to permit the public exposure of the information or drop the charges. Of course, the judge's denial of the requests could undercut one of the pillars of the defense.

There is a third option: the judge could permit the defense to introduce unclassified summaries of the data. But even then, the vagueness of the summaries could prove a continuing source of argument. If at any time during the trial a government witness were to characterize the data Dr. Lee mishandled as crucial to national security, the defense would be expected to demand the introduction of the actual information in an effort to undercut such claims.

But this remains an extremely complex case filled with uncertainties, which also include troubling questions potentially damaging to Dr. Lee. He has not explained why, for instance, he downloaded the storehouse of data to an unsecure computer and easily portable computer tapes, nor has he provided firm evidence of what happened to seven of the tapes that are missing. He said he destroyed them, but has yet to prove it. And losses in both of the coming hearings could deal a severe blow to his defense.

About the only certainty is that both the defense the and prosecution are pursuing risky, all-or-nothing strategies in a case that could have far-reaching national security implications.

The government, for instance, chose to charge Dr. Lee under a little-used statute that could land him in prison for life if he is convicted. But in doing so the government saddled itself with the task of proving beyond a reasonable doubt that Dr. Lee not only illegally downloaded the classified data, but did so with the intention of passing it to another country, presumably China, even though the government has also acknowledged that it has no evidence such a transfer ever took place.

For its part, the defense has conceded that Dr. Lee violated some government rules by downloading the material. But his lawyers say they are fighting for exoneration.

At a status conference on June 12, Judge Parker asked Mr. Holscher, one of Dr. Lee's lawyers, if there were any efforts to negotiate a plea deal and if some sort of mediator might be brought in to facilitate such a deal.

Mr. Holscher said that there had been some preliminary discussions between the two sides but that Dr. Lee was flatly rejecting pleading guilty to any of the charges in his 59-count indictment or accepting a sentence that would involve time in prison beyond the months he has already served.

Through all this, Dr. Lee has endured better than the government seems to have expected. Indeed, the government seems to have believed that Dr. Lee, a respected scientist, would crack under the bitter jail regimen -- he is segregated from other prisoners and can meet with his family for just one hour a week, and then only with a guard next to him. While people close to him say he has been depressed at times, they say he is now busy and emotionally steady.

He is writing a math textbook and academic papers to keep his mind busy, and most days he is driven from his jail in Santa Fe to the new, austere federal courthouse here to work in a secure room with his lawyers.

He wears a prison sweatshirt and sweat pants and is shackled when moved to or from the windowless white van that transports him. But he can still spend hours focused on preparing his case and eating lunches brought by his lawyers rather than jail food, factors that his family and lawyers say are preparing him for a long and vigorous defense.