Accused Scientist to Go Free on Bail in Los Alamos

James Sterngold - The New York Times - August 24, 2000

LOS ANGELES -- Saying the government case against the Los Alamos scientist Wen Ho Lee "no longer has the requisite clarity and persuasive character" needed to keep him in detention before his trial, a federal judge reversed his previous decision today and ordered Dr. Lee released on bail.

The order is a humiliating blow for government prosecutors, who have had Dr. Lee held in jail for more than eight months under unusually harsh conditions on charges that he had mishandled the "crown jewels" of the country's nuclear weapons program and posed a grave threat to national security.

The judge, James A. Parker of Federal District Court in Albuquerque, said in his order today that Dr. Lee would be required to post $1 million in bail.

Dr. Lee could remain in prison for a week or so while the tough conditions the judge outlined, amounting to home detention, are finalized. The government could also attempt to halt the order with an appeal and a request for a stay.

But the decision represented a stunning turnaround in this politically charged trial and was another in a string of recent developments suggesting that, at least in some respects, the prosecutors' case appears to be unraveling.

At a bail hearing in December, Judge Parker had agreed with the government and found that Dr. Lee, a former scientist at the Los Alamos National Laboratory, posed such a threat that he could not be released under any condition before his trial, which is scheduled for November.

Last week, the assistant United States attorney leading the prosecution, George Stamboulidis, said that if Dr. Lee were released and managed to hand over to a foreign power the secrets he had improperly downloaded, "it's of a caliber where hundreds of millions of people could be killed."

But at the same hearing a senior F.B.I agent acknowledged that earlier he had provided inaccurate testimony about Dr. Lee's supposed deceptions on several critical issues, which the judge had cited in his detention order in December.

Also, two highly respected weapons experts appearing for the defense contradicted several government witnesses and said that the data Dr. Lee is accused of having illegally downloaded onto portable computer tapes would not be of great use to another country and that most of it had already been made public in scholarly journals and the like.

While the judge did not detail his reasoning in the order, released late today, he clearly rejected the government's assertions this time about the threat from Dr. Lee. In court last week, Judge Parker said that he would not rule until he had read the full transcript of the unusually long and detailed three-day bail hearing. But in his decision today, he wrote that he now felt able to render the decision before the transcripts had been completed.

"We're simply delighted," said Brian Sun, an attorney for the family of Dr. Lee. "I wish I could wax on further, but we're just happy."

Dr. Lee's daughter, Alberta, 26, a fervent supporter throughout the case, was highly emotional. "I'm just thrilled that he will finally be at home," she said in a telephone interview. "I can't wait to see my Dad and hug him."

She added, "I think it just means that the government's case is crumbling."

Mark Holscher, one of Dr. Lee's lawyers, said that the terms Judge Parker described in his order, while tough, were agreeable. The judge scheduled a hearing for Tuesday to discuss and finalize the conditions of Dr. Lee's release.

"We are gratified by the court's decision," Mr. Holscher said. "Dr. Lee and his family are grateful to the scientists and members of the community who have supported him. We have always indicated to the court we would comply with any of its conditions."

The only government response came from Patricia Chavez, a spokeswoman for the United States attorney in Albuquerque. "The court's order is being reviewed," Ms. Chavez said in a written statement. "The government will be responding in court."

Judge Parker listed 12 conditions in a draft order for Dr. Lee's release. In addition to the requirement that he post a bond valued at $1 million, secured by his own assets and the assets of family members and friends, the conditions include that Dr. Lee be held in detention at his home near Los Alamos, in the town of White Rock.

His next-door neighbors, Don and Jean Marshall, who also work at the government lab in Los Alamos, would be third-party custodians.

Dr. Lee would be monitored electronically at all times and would have a single telephone in his house, with no computers or other electronic communications devices. Officials would be able to immediately block any phone calls that appeared to involve sensitive information. The government also would be able to inspect all of his mail, and he would be able to leave his house only with one of his attorneys to work on his case or to go to a hospital for emergency medical treatment.

The judge ordered that only Dr. Lee's wife, Sylvia, would be able to stay with him at his home. She would be able to leave the house only after notifying government officials of the time of her departure, her destination and the purpose of the trip. Law enforcement officials would have the right to search her upon leaving and re-entering the house.

Dr. Lee's two children, his daughter Alberta, and his son, Chung, 27, would be allowed to visit only during the daytime and only after having arranged the visits in advance with the government, which would have the right to have a law enforcement official present in the house during the stay.

While the terms were onerous, they represented a marked improvement from the conditions under which Dr. Lee has been held since he was arrested and indicted in December.

He is being held in something close to solitary confinement in a prison in Santa Fe, N. M. He had been shackled until recently for his brief periods in an exercise yard, is shackled when he travels to the courthouse to work on his case with his lawyers, and can see his family for one hour a week, and then only with a law enforcement official nearby.

Although the government has insisted in several hearings that Dr. Lee was engaged in what amounted to one of the most serious cases of espionage since the dawn of the nuclear era, he is not charged with spying in the 59-count indictment. He was investigated for several years on suspicions that he had passed secrets on a sophisticated warhead to the Chinese government, but prosecutors have now said there is no evidence for this and that they will not raise the matter at the trial.

Dr. Lee is charged with having illegally downloaded a huge mass of nuclear weapons secrets to an unsecure computer at Los Alamos, and then putting the information on 10 computer tapes, seven of which are missing. Dr. Lee has indicated through his lawyers that he destroyed the seven tapes after he was fired in March 1999, and he offered to take a lie detector test on this question.

The government has not taken him up on the offer, and prosecutors have used the question of the whereabouts of the tapes as a critical issue in the three bail hearings that have taken place.

The tapes are still unaccounted for, but new testimony was provided at the hearing last week that clearly cast the circumstances of Dr. Lee's actions in a far different light. Earlier, the Federal Bureau of Investigation agent, Robert Messemer, said Dr. Lee had lied to a colleague whose computer Dr. Lee used to complete the downloading. Last week, Mr. Messemer said that had not been the case.

The prosecution has also said that Dr. Lee downloaded the information to enhance his job prospects with several scientific institutes in foreign countries like Australia, Germany and Singapore. But last week Mr. Messemer said that though letters to those institutes had been found on Dr. Lee's home computer, the government had no evidence that the letters had ever been sent or received.

Although several government witnesses had described the codes and other information that Dr. Lee downloaded as the "crown jewels" of the nuclear weapons program, several respected scientists rebutted those assertions, apparently undermining, at least in Judge Parker's eyes, the need to continue holding Dr. Lee in the kind of conditions reserved for the most nefarious spies and criminals.

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