News Analysis: Back to Square One

David Johnston - The New York Times - September 12, 2000

This article was reported by David Johnston, William J. Broad and Neil A. Lewis, and was written by Mr. Johnston.

WASHINGTON, Sept. 11 An investigation that began eight years ago as an effort to determine how China obtained highly classified information from American weapons labs about one of the country's most advanced nuclear warheads appears to be back where it started, with the mystery still unsolved.

Although Wen Ho Lee, a nuclear weapons scientist in New Mexico, became the government's leading suspect in the investigation of the alleged theft of warhead data, he was never charged with espionage or accused of any crime connected with the loss of information for a device known as the W-88. Nor did the government ever obtain any direct evidence linking Mr. Lee to the suspected theft.

Government officials said today that they were prepared to accept a plea bargain in which Mr. Lee would plead guilty to a single count of improperly downloading secret information.

The material Mr. Lee downloaded was unrelated to the suspected warhead design theft that prompted the government's investigation of possible Chinese espionage.

The agreement effectively means that prosecutors have ended their long pursuit of Mr. Lee as a possible source of the stolen warhead data, once described by government experts as "the crown jewels" of the United States' nuclear secrets. It also leaves them with no clear answer about how the Chinese obtained the warhead data or from whom.

Nearly a year ago, when questions were raised about whether the Justice Department had focused prematurely and unfairly on Mr. Lee, Attorney General Janet Reno and Director Louis J. Freeh of the F.B.I. ordered what law enforcement officials described as a top-to-bottom re- investigation of the suspected W-88 theft. But intelligence experts and scientists said they had made little progress.

Today, the expected release of Mr. Lee was canceled as prosecutors and defense lawyers in Albuquerque, who had signed a plea agreement on Sunday, backed away from the settlement. But United States District Judge James Parker said he would reschedule a hearing for Wednesday. [Page A18.]

"I must regretfully say that we cannot proceed with the hearing this afternoon," Judge Parker said.

Initially, in December 1999, Mr. Lee was charged in a 59-count felony indictment with gathering a huge amount of research and design data from the computers at the Los Alamos National Laboratory "with the intent to secure an advantage for a foreign power."

In trying to explain how the case collapsed, government officials acknowledged in interviews today that they had no clear idea what Mr. Lee intended to do with the information he downloaded. This proved an almost insurmountable problem since many of the offenses with which Mr. Lee was charged would have required prosecutors to prove Mr. Lee's motives.

The officials who spoke about how the case was viewed from inside the government as it evolved over the last several months said that prosecutors on the trial team had concluded recently that the case was flawed and that they would never be able to demonstrate convincingly at a trial why Mr. Lee had downloaded the sensitive information or what he had done with it.

The officials said that the turning point that led them to agree to the plea bargain was the realization that they would never fully know Mr. Lee's motives in downloading the information.

At one point, government officials said, prosecutors and investigators had competing theories as to which government Mr. Lee might have been aiding. Some investigators had worked on the theory that he might have been aiding China, where he had visited and where he had made contacts with scientists. Others argued that because he was a native of Taiwan, he might have been helping that government.

At the same time doubts and misgivings were mounting within the government, prosecutors became concerned as the case started to unravel in the courtroom. And just as importantly, according to law enforcement officials, the prosecutors realized that public opinion about the case had begun to shift toward Mr. Lee.

His supporters, with his daughter serving as an effective spokeswoman, mounted an aggressive effort to portray the government's tactics against him as a racist campaign against Chinese-Americans.

Gradually, prosecutors began to grow more receptive to overtures to settle the case especially after an embarrassing appearance by a senior F.B.I. agent at an August bail hearing who said he had testified falsely that Mr. Lee lied to a colleague about the purpose of his downloading.

By the end, the case seemed vastly diminished, with the government's acceptance of a guilty plea to only a single count of mishandling classified information, from a prosecution that began as a 59-count felony indictment. According to law enforcement officials, the welter of charges were a tactical step intended to pressure Mr. Lee into pleading to what some officials suggested could be far more serious charges.

Some government investigators even suggested that once it was fully understood, Mr. Lee's role was comparable to that of Julius and Ethel Rosenberg, who were executed as Soviet spies in 1953. In the end, the only resemblance to the Rosenberg affair that was beyond dispute is that the Lee case will stir years of debate as to what really occurred.

A number of government officials who were convinced that he provided classified information to the Chinese government remain unconvinced of his innocence, but they acknowledge, as a former senior government official did today that, "There was smoke but nothing you could hang your hat on."

The effort to investigate Mr. Lee for espionage began to unravel almost as soon as it began in 1995 when Energy Department officials gave to the F.B.I. a list of people, including Mr. Lee, who they said might be responsible for a sudden and unexplained advance in Chinese nuclear warhead technology.

Energy Department investigators concluded that the Chinese could have only obtained the crucial information about the W-88 warhead, the most advanced American nuclear weapon, by stealing it from the United States.

From the start, the inquiry was hobbled by internal disagreements over whether China might have gotten the information from other sources. Some counterintelligence officials accused the F.B.I. of failing to take the accusations seriously enough, and F.B.I. agents became embroiled in time-consuming debates with the Justice Department over whether they could legally justify wiretapping to collect evidence against Mr. Lee.

After interviews and polygraph examinations, F.B.I. agents searched Mr. Lee's office and home in early 1999. They discovered that he had downloaded 806 megabytes of information, which law enforcement officials said, amounted to 400,000 pages of information. Mr. Lee transferred the data to computer tapes which he said he either saved or destroyed.

Prosecutors have said that Mr. Lee has agreed to cooperate fully and has promised to tell them in more detail what he did with the tapes. But the officials said that they were not optimistic that Mr. Lee was likely to add much to his statements that he downloaded the information solely for his own use.

What remains of the inquiry is an investigation into whether there exists another explanation or different suspect for the loss of the W-88 technology, which began with a government effort to pinpoint the source of the leak. The new inquiry included looking for any possible clues and textual "finger prints" on a Chinese document that the C.I.A. got in 1995 and had long resided at the heart of the spy case.

It has previously been reported that its Chinese text cited five key attributes of the W-88 warhead, including two measurements accurate to within four-hundredths of an inch. That information was a strong indicator that the Chinese had obtained national secrets.

But last year, the experts said, a federal panel made up of people from the Central Intelligence Agency, the Defense Intelligence Agency, the State Department and the Energy Department and its weapons laboratories was surprised to learn that such secret information on the W-88 had been distributed widely beyond Los Alamos, intelligence experts said.

Copies of one detailed description of the warhead were distributed to 548 addresses, including ones in the Defense Department, the military services, the National Guard, and federal agencies and contractors like the Lockheed Missile and Space Corporation. As a result, the lost secrets, it appeared, were available to thousands of individuals scattered throughout the nation's arms complex and thus available from myriad sources.