Judge Orders U.S. to Turn Over Data in Secrets Inquiry

James Sterngold - The New York Times - August 30, 2000

ALBUQUERQUE -- A federal judge today ordered the government to turn over what could amount to thousands of pages of classified internal documents to help him determine whether there is evidence that the former Los Alamos nuclear scientist Wen Ho Lee was unfairly singled out for prosecution because he is Chinese-American.

The judge, James A. Parker, also rejected government efforts to impede or add new restrictions to his decision last Thursday ordering the Dr. Lee's release on bail. The scientist was arrested and indicted last December on charges that he had illegally downloaded a virtual library of nuclear weapons secrets. Dr. Lee, who has spent more than eight months in close to solitary confinement, could be released to a form of home detention as early as Friday afternoon, after a three-day period in which prosecutors can seek to file an appeal.

The decision on the documents indicates that Judge Parker at least believes there are some grounds for the defense's assertions that Dr. Lee was a suspect because of his ethnicity, not because of the facts, and that others who violated or were suspected of violating security laws were not prosecuted.

Although Dr. Lee is not charged with espionage, he was initially investigated for years on suspicions that he had given highly sensitive nuclear weapons secrets to China. Dr. Lee was born on Taiwan and is a naturalized American citizen. Although government officials have said they have no evidence that Dr. Lee spied for anyone, they have claimed in court that Chinese spies routinely seek out Chinese-Americans in their clandestine recruitment activities.

Selective prosecution motions very rarely lead to the dismissal of a case and the judge's decision represents only a small victory for the defense. Once the documents are handed over, by Sept. 15, the judge would inspect them privately and decide whether they should be handed over to the defense. The defense could then use them to argue that the case should be dismissed.

In its motions, the defense provided statements from two former senior counterintelligence officials, Robert Vrooman of Los Alamos National Laboratory and Charles Washington of the Department of Energy, asserting that Dr. Lee might have been a subject of racial profiling and that he had been pursued at least partly because of his Chinese ancestry. Such concerns have led a number of civil rights groups, from the American Civil Liberties Union to the Asian Law Caucus, to take up Dr. Lee's cause and file briefs on his behalf.

The judge ordered that the government provide several categories of documents that the defense has been seeking.

He ordered the release of some secret testimony provided to Congress about the investigation, classified material that the Department of Energy collected last year for a report on whether the agency had engaged in racial profiling, State Department records on security breaches by employees that were not prosecuted and a counterintelligence training tape that the defense says encourages racial profiling.

He also sought statements by a former counterintelligence official at the Energy Department, Notra Trulock, that the investigation should focus on ethnic Chinese and Mr. Trulock's full list of suspects.

In addition, he sought F.B.I. reports on the number of people who had access to information about the advanced warhead that the government believes may have been leaked to China, as well all reports on administrative inquiries by the Energy Department or the Los Alamos National Laboratory on improper handling of classified data from 1987 to the present.

The issue of bail, which Judge Parker granted on Thursday after two earlier denials, was crucial in the minds of many of Dr. Lee's supporters today, as well as to the government, which continued to argue that Dr. Lee presented a grave threat to national security.

Dr. Lee is charged with downloading weapons test and design data onto 10 portable computer tapes, 7 of which are missing. Dr. Lee has indicated through his lawyers that he destroyed the tapes, but the government maintains that if he spirited them away to a hostile power after his release they could alter the global balance of power.

By granting bail, the judge appears to have accepted the defense's claims that those assertions are exaggerated. And while the judge also rejected the government's request for a seven-day stay of Dr. Lee's release on $1 million bail, he did grant a three-day stay to give prosecutors time to prepare an appeal and receive permission to file it from the United States solicitor general.

The judge reversed his denial of bail to Dr. Lee after receiving new information at a hearing two weeks ago, including an F.B.I. agent's admission that he had provided incorrect testimony on several critical issues, which made Dr. Lee appear deceitful when he had not been.

"We must note that had Judge Parker been provided the complete record in December, Dr. Lee would not have spent eight months in solitary confinement in shackles," Mark Holscher, one of Dr. Lee's lawyers, said after this morning's hearing.

The judge ordered Dr. Lee's lawyers and the prosecutors to meet this afternoon to work out the conditions of his release, which the judge agreed to modify only slightly from a draft proposal he released last week.

These changes included an explicit order that Dr. Lee could garden in his backyard at home, that he could use an ambulance if he required emergency medical treatment, and that staff members of the Albuquerque law firm representing him could pick Dr. Lee up and transport him to and from the courthouse here when he was meeting with lawyers to prepare his case.

The judge tersely rejected arguments by the lead prosecutor, George Stamboulidis, that tight restraints needed to be imposed on Dr. Lee's communications with his wife, Sylvia, and on his wife's communications with third parties outside their home near Los Alamos.

"I'll reject that out of hand," Judge Parker said when Mr. Stamboulidis began discussing limits on Dr. Lee's conversations with his wife.

When Mr. Stamboulidis argued that Dr. Lee might use his wife to unwittingly pass along a coded message that would result in the transfer of weapons secrets, an act of espionage, Judge Parker expressed pointed skepticism.

"The scenario you described suggests Dr. Lee would consciously subject his wife to an offense that could subject her to the death penalty," he said in rejecting any restraints on Mrs. Lee's communications outside the house.

"I'm just glad he's getting out," said Alberta Lee, Dr. Lee's daughter. "Any conditions are fine."

Lifting of Security Steps

WASHINGTON, Aug. 29 (AP) -- Scientists from countries like China, Russia and Iran are expected soon to resume normal ties with the Energy Department's three nuclear weapons research labs, ending a 10-month ban on virtually all such contact.

Concerned about safeguarding nuclear secrets, Congress last November barred scientists from 25 "sensitive" countries from visiting the labs, having contact with lab scientists or access to any computer systems at the sites.

The law said the moratorium could be lifted only after directors of the Federal Bureau of Investigation and the Central Intelligence Agency determined that the foreign visitors program had safeguards to prevent the loss of nuclear secrets.

The F.B.I. director, Louis J. Freeh, and C.I.A. director, George J. Tenet, informed key members of Congress on Tuesday that they had concluded that the system met those security needs.

  • The Wen Ho Lee Page