Spies, Lies & Portable Tapes

The feds were already suspicious of scientist Wen Ho Lee. Then they discovered hed downloaded every secret in the nuclear arsenal.

But Holscher said Messemer's statements were absurd. "This scenario that is being strung here of spies and the inference that Dr. Lee will commit a death-penalty offense while under the most heightened security ever in the United States is just a ludicrous premise," the defense attorney argued.

Judge Parker was confronted with a difficult choice. Lee was a responsible husband and father who had no criminal record, and ordinarily, he would have been released on bail. But this was no ordinary case. The judge had listened to days of apocalyptic testimony about the enormous threat that Lee posed to the entire nation. Sandia's Paul Robinson had likened the choice to a "you-bet-your-country" decision. Directing his comments to the bench, Robinson had warned, "I would take, if it were in my power, every action I could take to make sure this information that has been taken out of its protection is placed back into protection and is not divulged to anyone else. I would be willing to take whatever actions I could to make sure that it does not get transferred to another nation or power."

In the end, Parker ruled that Lee should remain incarcerated: "The government has shown by clear and convincing evidence that there is no combination of conditions of release that would reasonably assure the safety of any other person and the community or the nation."

The spy next door? Wen Ho Lee heading into court last December.
The spy next door? Wen Ho Lee heading into court last December.
The spy next door? Wen Ho Lee heading into court last December.
The spy next door? Wen Ho Lee heading into court last December.

While Wen Ho Lee has been locked away in jail, support for him has grown steadily. Many Asian-Americans feel that he has been unjustly targeted and that his incarceration is unduly harsh. There have been marches and speeches and a Web site established in his name. Energy Secretary Richardson, who gave the order to fire Lee, has vehemently denied that race had anything to do with the charges, and he recently ordered the entire weapons complex to "stand down" for an afternoon to listen to lectures about race issues.

Only days after the indictment was handed down, Lee fired the first volley of what could become protracted civil litigation. Brian Sun, a Los Angeles attorney, filed a complaint in the District of Columbia against the Justice Department, the FBI and the DOE, claiming that the agencies violated the Privacy Act by "willfully and intentionally" leaking private information about Wen Ho and Sylvia Lee to the media. Dr. Lee, the petition continued, was made a scapegoat for the Clinton administration, which was accused of turning a blind eye on the espionage scandal because it had received 1996 campaign contributions from Chinese officials. The FBI, in turn, expended vast sums of money to support their predetermined conclusions that Wen Ho Lee was a spy, the lawsuit charges.

The American Association for the Advancement of Science and the American Physical Society have both written letters to Janet Reno, protesting the inhumane conditions of Lee's confinement. The case, the groups warned, is already having an adverse impact on the ability of the weapons labs to recruit and retain scientists. "The extraordinarily harsh conditions under which he is detained suggest to the outside world that he is presumed guilty and is being punished before his trial has even begun," an American Physical Society representative wrote.

An assistant to Reno defended the conditions of Lee's confinement and noted that even the judge had agreed that his release posed a national threat because of "the risk that Dr. Lee will find a way to, and will be inclined to, reveal to unauthorized persons the location of the seven missing tapes or to assist an unauthorized possessor in understanding and utilizing the information contained in the tapes." Reno's aide also pointed out that Lee is getting more time to visit with his family than other prisoners who are similarly situated.

Numerous scientists familiar with nuclear weapons believe that Sandia's Paul Robinson, as well as the Los Alamos physicists, grossly overstated the harm that would occur if the tapes fell into the wrong hands: Building a workable nuclear weapon requires not just codes, but engineering skills and an adequate amount of plutonium or enriched uranium. In a letter to the Wall Street Journal, Harold Agnew, a former director of Los Alamos, wrote, "Being able to use information from any of the national laboratories' codes requires a great deal more knowledge than following a cake recipe...No nation would ever stockpile any device based on another nation's computer codes. Maybe for security reasons the originator has included a 'virus' that would result in a dud if the codes were to be followed exactly."

The Albuquerque Journal also pointed out recently that many of the files that Dr. Lee downloaded actually had a security designation known as "PARD," an acronym that stands for "Protected As Restricted Data." This is a category reserved for information that is technically considered classified but has not yet undergone the formal classification review process. PARD data, for example, might include printouts of mathematical calculations and could be left out on a scientist's desk in the secure area overnight.

Meanwhile, the government is moving ahead with trial preparations, which will be complicated enormously by the amount of classified material that must be handled. At the federal courthouse in Albuquerque, carpenters have just completed construction of a Secure Compartmented Information Facility, or SCIF. No electronic signals will be able to penetrate or escape from the specially enclosed facility. In this tomb-like room, away from the eyes of the jury and the media, prosecutors, defense lawyers and the judge will hash out disputes over what classified information can be declassified and admitted at trial. Chief U.S. District Judge John Conway, who will preside at the trial, recently ruled that the Classified Information Procedures Act, or CIPA, is constitutional and can be applied during the trial. That means that the defense team will have to identify beforehand what kind of classified evidence it plans to introduce in order to give the government the opportunity to first assess whether the information will damage national security and, if so, whether other information or substitutions can be used.

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