White House meeting before indictment

Decision Nears on the Fate Of Ex-Los Alamos Scientist
By JAMES RISEN AND DAVID JOHNSTON
Published: December 8, 1999

The Federal authorities have intensified their deliberations about whether to prosecute a nuclear weapons scientist at the Los Alamos National Laboratory on charges of mishandling highly classified atomic data, government officials said today.

A decision on whether to charge the scientist, Wen Ho Lee, is expected within days, the officials said, after a crucial meeting held on Saturday at the White House and attended by the administration's top security, law enforcement and energy officials.

The participants concluded after a lengthy intelligence review that should Attorney General Janet Reno decide to prosecute, the secrets that would probably be divulged at a criminal trial would not irreparably damage national security.

Among those present in addition to Ms. Reno were Samuel R. Berger, President Clinton's national security adviser; Energy Secretary Bill Richardson; Louis J. Freeh, the director of the F.B.I.; George J. Tenet, the director of central intelligence, and John Kelly, the top federal prosecutor in Albuquerque, who has jurisdiction in the case.

Law-enforcement officials and Mr. Kelly have recommended going ahead with a case against Mr. Lee, said the officials, who spoke on condition of anonymity. Mr. Richardson, who supports bringing a prosecution, indicated that he was prepared to exercise his statutory authority to declassify atomic secrets likely to be needed as evidence in the trial, the officials said. But they added that it was Ms. Reno who must decide whether to seek an indictment and that she had not given prosecutors final approval.

Mr. Lee, his lawyers and his supporters have repeatedly said that he has done nothing wrong and that no one has ever been criminally charged for similar conduct, for example, transferring classified information into a nonclassified computer. Mark Holscher, Mr. Lee's lawyer in Los Angeles, did not return telephone calls today.

In the past, Mr. Holscher and Mr. Lee's other supporters have said that Mr. Lee is a loyal American who has been unfairly singled out for investigation because of his Chinese ancestry. They say Mr. Lee is being made a scapegoat by law-enforcement and energy officials who have been under fire by Republicans in Congress for security lapses at the country's weapons laboratories. In a television interview in August, Mr. Lee also said he was innocent.

The highly unusual White House meeting reflects the acute political sensitivities and high stakes involved in a case that has become a battleground for the administration and Republican critics who have said that Chinese intelligence had used scientists to steal information from the weapons laboratories that was used to vastly speed the pace of Beijing's nuclear weapons program.

As expected, if he is charged, Mr. Lee will not be accused of espionage, the officials said, which would require prosecutors to show that information was not only stolen but passed to a foreign power. Prosecutors are now weighing whether to charge Mr. Lee with a lesser crime of mishandling and failing to adequately safeguard classified information.

The recent surge of activity in the case comes just before the expiration of the term of a federal grand jury in Albuquerque that has been hearing evidence. The grand jurors were to be dismissed this month, but their terms have been extended until early January.

Mr. Lee, who worked in the nuclear weapons design area of Los Alamos, was fired in March for security violations. By that time, he had been under investigation for nearly three years in connection with the government's inquiry into the suspected theft of United States nuclear secrets by China. United States investigators believe that design information related to the most advanced nuclear warhead in the nation's arsenal, the W-88, was obtained by China, in part through espionage. The W-88 warhead was designed at Los Alamos.

After Mr. Lee was fired, investigators found evidence that he had transferred vast amounts of secret nuclear data from the classified system at Los Alamos into an unclassified system. In a televised interview, Mr. Lee acknowledged that he transferred the data, but said he did so to protect the material from being lost in computer crashes.

Since the investigation into Mr. Lee became public, a furious debate has erupted over whether the inquiry was properly handled by the Energy Department and the F.B.I. Subsequently, F.B.I. officials said that the initial inquiry into the evidence of Chinese atomic espionage was flawed, and other current and former government officials argued that investigators had focused prematurely on Mr. Lee without first determining how widely accessible the information on the W-88 warhead had been at the time officials concluded the Chinese obtained it. Asian-American groups rallied to Mr. Lee's cause, saying he was the victim of racial stereotyping.

In September, Ms. Reno and Mr. Freeh ordered federal agents to go back to square one and broaden their investigation into the evidence of China's theft of W-88 secrets, moving beyond Los Alamos to look at other labs and defense contractors that may have had access to the data.

But even as that broader inquiry into evidence of Chinese espionage is continuing, the government has been moving forward in its investigation of Mr. Lee over accusations of unauthorized computer transfers of nuclear secrets.

In addition to the unauthorized transfers of nuclear data into an unclassified computer system at Los Alamos, government investigators now believe that Mr. Lee also copied the nuclear secrets onto computer tapes and took those tapes out of the lab, officials said. The F.B.I. cannot account for those missing computer tapes, officials said. Officials have no evidence that the tapes have been handed over to any other unauthorized individuals, however.

The discovery that the computer tapes are missing appears to have convinced government officials that the evidence against Mr. Lee may be more serious than initially believed. Stephen Younger, associate laboratory director for nuclear weapons, who oversees the division where Mr. Lee worked, has completed a highly classified analysis of Mr. Lee's computer activities showing that the potential damage to national security could be extensive, officials said.

If he is charged in the computer downloading case, Mr. Lee's lawyers appear likely to respond by saying that he is the victim of selective prosecution for relatively common practices. The former C.I.A. director John Deutch, for example, who was investigated by the intelligence agency's inspector general for improperly handling classified information on his computer, had his security clearance stripped this year, but was not charged with a crime.

But Los Alamos officials have said that they disagree with Mr. Lee's assertions that his computer activities were routine.

John Browne, the director of Los Alamos, said in an interview in August: ''We have no evidence that anyone has ever done anything like this before at Los Alamos, and we have looked. I have no doubt that he violated Los Alamos security regulations, and I have no doubt that he deserved to be terminated. We have fired people for much less.''