How the 'New York Times' Convicted Wen Ho Lee

http://www.thenation.com/doc/20001023/scheer/print
By Robert Scheer

For me the most persuasive evidence that Wen Ho Lee was innocent of the wild spying charges lodged against him came hours after his release from jail, when he returned to his standard-issue tract house in the White Rock suburb of Los Alamos, New Mexico: It was the sight of all those neighbors and co-workers from the lab bringing over plates of potato salad and cold cuts to celebrate his freedom. These were the people who knew Lee and the inner workings of the weapons lab, and they had been there to support him throughout his ordeal, even when established human rights and civil libertarian groups had remained silent. His next-door neighbors, the Marshalls, both hold the highest security ratings; they had offered to pledge their house as bail.

Lee was a product of the lab's culture, and whatever his motive in downloading certain files, his co-workers knew that no one had ever been criminally prosecuted for such an act. It was not all that unusual for intellectually distracted scientists like Lee, who managed to begin writing a mathematics book while in solitary confinement, to be careless with the data that formed the clay they played with daily. Above all, they knew in their bones that Wen Ho Lee, their neighbor, was no spy.

Still, I was apprehensive at being introduced to Lee that evening. For one thing, there is always trepidation at finally meeting a person about whom one has written so much. In Lee's case, I'd done more than a dozen Op-Ed columns for the Los Angeles Times, being the first to challenge a spy story driven by the New York Times. Also, Lee had been through a prison nightmare, and I expected to find a broken man. Instead, I found a person still in shock but grateful, with a smile that suggested he was very much at peace with himself.

Yet Lee's ordeal had been real, and while that evening was not the time for him to go into it, he made it clear that it had been a harrowing experience. Imagine a man who has never been in trouble with the law suddenly detained in a tiny cell without a window or even bars to look through. "There was a peephole in the door, and there was someone who sat outside, and who was watching him and taking notes," recalls his Albuquerque attorney, Nancy Hollander, who visited him often in jail. "And you have to understand: Not only are they watching him eat and sleep, they're watching him use the toilet." His cell would change, but never the twenty-four-hour-a-day light or the shackles--hands and feet linked to a chain around his waist--that he wore during his one hour of permitted exercise, on the occasions he got to talk with his lawyers and during brief visits with his wife.

Hollander has spent decades representing the most hardened of criminals, but still, she says, she was shocked: "I've had murder clients, drug clients, clients accused of taking millions of dollars from the federal government, you name it, but I've never had a client treated like Wen Ho Lee."

A recent Washington Post article quotes one government insider as expressing the opinion that the decision to hold Lee under these circumstances was an attempt to break him. They weren't able to, and instead, it was the FBI and the US Attorney General who had to back down because, as the Post reported, they were convinced that the admitted deceptions in the case, including those used to make the case against bail, had turned Judge James Parker against them. Parker had gone along with the prosecutors for nine months, but eventually he was revolted by these deceptions. He saved the day, first by ordering that the government turn over evidence of racial profiling in targeting Lee, as well as potentially incriminating documents regarding the FBI's behavior; and second, by ordering Lee released on bail. In the end, Judge Parker made a broken judicial system work and sternly condemned those who had done it so much damage.

I: Here Comes the Judge

What a moment it was to sit in the Federal District Court in Albuquerque on September 13 and hear Judge Parker, a conservative Reagan appointee, say: "I sincerely apologize to you, Dr. Lee, for the unfair manner [in which] you were held in custody by the executive branch." Parker described Lee's imprisonment to a hushed courtroom as having been under "demeaning, unnecessarily punitive conditions," and he said that he was "sad and troubled because I do not know the real reasons why the executive branch has done all of this."

What is known is that the government's case against Lee crumbled, with the government agreeing to dismiss fifty-eight of fifty-nine counts that had been lodged against Lee, who faced life imprisonment for intending to betray the national security of the United States. Suddenly the government, which only a week before had said Lee's release could risk "hundreds of millions of lives," was willing to let him go for time served. As for Lee, the nine months of harsh imprisonment had taken their toll, and he was willing to plead guilty to a single felony count of mishandling classified data--a charge that defense lawyers might have been willing to settle on even before there was an indictment.

Parker went on to tongue-lash "the top decision makers in the executive branch," who, he said, "have embarrassed our entire nation and each of us who is a citizen of it."

I filed out of the courtroom with my media colleagues, who spoke of their eyes having welled up with tears at the judge's remarks but of feeling proud that the system had worked once again. As the judge had said, "The executive branch has enormous power, the abuse of which can be devastating to our citizens," and in this case it had been checked. That's how the story got reported.

But once I was outside in the bright heat of an early desert afternoon, it seemed outrageous that yet again the media were leaving out their own responsibility in the creation of this wicked tale. The torment of Wen Ho Lee did not begin in December of 1999, with his indictment and arrest, but rather the previous March, when the New York Times, the most respected media outlet in the country, laid out a tale of atomic spying that has been proved wrong on virtually every count, but that launched a witch hunt ending in Lee's incarceration [see Bill Mesler, "The Spy Who Wasn't," August 9/16, 1999].

There are too many low points in the history of this nation's journalism to permit one easily to employ superlatives about the Times's startling transgression. I don't know if it makes the all-time Top Ten list, but the trial and conviction of Lee in the pages of the Times--both in its news columns and on its editorial page--is certainly right up there. A leak from a Congressional committee chaired by California Republican Christopher Cox regarding the alleged theft of secrets about the W-88 nuclear warhead (a sophisticated, miniaturized bomb that fits on a MIRVed launcher) by Chinese spies--a nonevent that was never substantiated and was scoffed at by most experts--along with the contentions of a controversial and much-disputed source, was used by the newspaper to smear a Taiwan-born US citizen singled out for vilification simply because of his ethnic background.

Of course, the Times couldn't have done it alone. But what makes this primarily a media story is that without the backing of the Times, whose stories set the tone for TV journalism, not much of anything would have happened. If properly vetted through the normal channels, the case, based largely on the zealous pursuit of Lee by one disgruntled former government security sleuth and amplified by the ambitions of a right-wing Congressman, would have come to naught. Instead, the Clinton Administration, recovering from impeachment and mired in a campaign finance scandal linked to Asian funds--including the charge that Beijing had secretly funneled money to the Democrats--panicked. Cowed by its fear that the China issue could be used effectively against Gore in the election, the Administration was willing to play along, and it did so through its Energy and Justice departments.

Lee sat in jail for one reason and one reason only: The Administration wanted to prove to its critics that it was tough on Chinese spying, whether or not that spying existed and whether or not it had anything to do with Wen Ho Lee. In the end, the spy hysteria whipped up by the Cox committee and the Times has taken a terrible toll on the life of one scientist and has cast suspicion over the entire community of Asian-American scientists, many of whom are now boycotting employment in the nuclear weapons labs.

The assumption that Lee, whose roots are in Taiwan and who has no relatives on the mainland, would be the prime target of an investigation simply because of his skin color and ethnic identity has sent shock waves through the Asian-American community. The leading support for Lee has come from the Committee of 100, made up of highly influential Chinese-Americans alarmed that their entire community has been scapegoated as disloyal.

All the more bizarre, this resurfacing of cold war imagery occurred at a time when China was moving as fast as a nation possibly can down what Mao Zedong would have condemned as the capitalist road. The same week Wen Ho Lee was released, Congress approved permanent normal trade relations with China with overwhelming bipartisan support. Yet there were Attorney General Janet Reno and FBI Director Louis Freeh still claiming that Lee was a great risk to the nation.

While Reno and Freeh defended their handling of the case before Congress, the New York Times, in one of the most contorted editors' notes in that paper's history, and on its editorial page two days later, defended its journalism in the Lee case while offering up some faint notes of apology. But like the ravings of an addict promising to abstain, the Times again committed egregious distortions in the very editors' note intended to set the record straight. For one thing, the September 26 note implied that Lee might have had something to do with espionage and also with the theft of information critical to building the W-88 warhead, even though he was never charged with either offense.

Most unbelievable was one sentence that was so ingenuously dishonest as to be worthy of the most effective editorialist for Pravda in the bad old days. The Times editors wrote that at the time of the newspaper's first story, "Dr. Lee had already taken a lie detector test; FBI investigators believed that it showed deception when he was asked whether he had leaked secrets." The fact is that in December of 1998, three months before the Times's first story ran, Lee had passed an Energy Department lie-detector test with flying colors. What the note would seem to indicate is that the Times still could not acknowledge a single piece of evidence pointing to Lee's innocence.

In its very long editorial admitting to some errors, most important is the admission that "we find that we too quickly accepted the government's theory that espionage was the main reason for Chinese nuclear advances and its view that Dr. Lee had been properly singled out as the prime suspect." But then the editorial quickly segues into a non-sequitur argument about the need for increased security at the weapons labs. Sure, and it could probably save on its electricity bill with more prudent management as well. What the Times editorial never explains is why the paper uncritically accepted the leaks from the Cox committee as truth. Why did the newspaper ignore the massive amount of evidence in the scientific and intelligence commu- nity suggesting that Chinese nuclear weapons gains were very slight and could easily have been the product of the country's own internal research, and that in any case, China is a full four decades behind the United States and no threat in any way as a nuclear power? To this day the Times editorial page will not concede that the big scare of a growing Chinese nuclear power, which fueled the hunt for a spy, is bogus.

II: The Times Gets Its Man

The media nightmare for Lee began with a 4,000-word front-page Times story on March 6, 1999, under the shocking headline: "Breach at Los Alamos: A special report; China Stole Nuclear Secrets for Bombs, US Aides Say." It was written by two of the newspaper's more aggressive investigative reporters: Jeff Gerth, who won a Pulitzer Prize for reporting the alleged transfer of satellite technology to China (a controversial report that triggered the Cox investigation), and James Risen. The opening paragraph--never mind that it was false--stated, "Working with nuclear secrets stolen from an American Government laboratory, China has made a leap in the development of nuclear weapons: the miniaturization of its bombs, according to Administration officials." This "breakthrough," the story claimed--also incorrectly--"was accelerated by the theft of American nuclear secrets from Los Alamos National Laboratory in New Mexico." The story noted dramatically, "At the dawn of the atomic age, a Soviet spy ring that included Julius Rosenberg had stolen the first nuclear secrets out of Los Alamos. Now, at the end of the cold war, the Chinese seemed to have succeeded in penetrating the same weapons lab."

The reporters relied heavily on unnamed sources and one named source, Notra Trulock, the former Energy Department Director of Intelligence, who had been involved in the Wen Ho Lee investigation. They credited Trulock with being the "star witness" at the Cox Congressional hearings. The Times described him as a "whistleblower" ignored by a Clinton Administration devoted to maintaining good ties with Beijing at any cost. Trulock's secret testimony, leaked to the Times reporters, was taken as unquestioned gospel and formed the basis of the newspaper's claim that China had stolen the secrets for the advanced W-88 warhead, an incident that the Times charged had led to what "senior intelligence officials regarded...as one of the most damaging spy cases in recent history." A simple background check on Trulock might have raised red flags about his motives in the case and his credibility as a source, but that would be revealed only later, by other reporters.

Gerth and Risen went on to chastise the Administration for not properly addressing what they alleged was a most egregious security leak: "A reconstruction by The New York Times reveals that throughout the Government, the response to the nuclear theft was plagued by delays, inaction and skepticism." The Times bemoaned the fact that after three years of investigation "no arrests have been made" and that the key suspect had been allowed to keep his high security clearance for more than a year after he'd been tagged a spy. They went on to identify the likely culprit, although withholding his name: "Only in the last several weeks, after prodding from Congress and the Secretary of Energy, have Government officials administered lie-detector tests to the main suspect, a Los Alamos computer scientist who is Chinese-American."

Two days later, that suspect was revealed to be Wen Ho Lee. Lee was abruptly fired from his job at Los Alamos after three days of grueling questioning.

Because several errors were so widely reported in the media and will haunt Lee even though the government's case crumbled, it is important to dissect each of them. To begin with, there is no conclusive evidence that China stole the secrets to the W-88 warhead, and the consensus of experts in the field is that spying, if it occurred, was not decisive to China's still minuscule and primitive nuclear program. That was the conclusion of a June 1999 report by the President's Foreign Intelligence Advisory Board, headed by former Republican Senator Warren Rudman. The board report concluded: "This information had been widely available within the U.S. nuclear weapons community, including the weapons labs, other parts of D.O.E., the Department of Defense, and private contractors, for more than a decade. For example, key technical information concerning the W-88 warhead had been available to numerous U.S. government and military entities since at least 1983 and could well have come from many organizations other than the weapons labs."

This was also the consensus in another Times cover story, reported five months after the original Gerth/Risen article, by William Broad, the paper's leading expert on nuclear weapons, which shredded the assumptions of the earlier Gerth/Risen stories. Broad interviewed Robert Vrooman, who was head of counterintelligence at Los Alamos during the investigation of Lee, who said a description of the W-88 had been widely disseminated. "A rather detailed description of the W-88 had a distribution of 548 copies," he said, adding, "Please note that I am referring to 548 mailing addresses, not people."

Even the original Gerth/Risen report stated that the CIA did not accept Trulock's dire assessment: "Trulock's briefing was based on a worst-case scenario, which C.I.A. believes was not supported by available intelligence. C.I.A. thinks the Chinese have benefited from a variety of sources, including from the Russians and their own indigenous efforts." But that assessment was treated in the story as a minor caveat.

Trulock's sensational charges were based on what the Times story termed "an intelligence windfall from Beijing." In June of 1995, a Chinese official gave CIA analysts a document that, according to the Times, "specifically mentioned the W-88 and described some of the warhead's key design features. The Los Alamos laboratory, where the W-88 had been designed, quickly emerged as the most likely source of the leak." And, of course, that is where Lee worked.

What the Times reporters either did not know or care to mention was that the CIA had quickly concluded that the Chinese official was a double agent still working for Beijing, and that the document had been planted for some devious purpose such as to impress Taiwan that Beijing might modernize its nuclear force. It also turned out that while the document was an authentic duplication of some design calculations, it contained several signature errors that had been made in the weapons design process after the W-88 had left Los Alamos and was being worked on at Lockheed Martin and at the Sandia National Laboratories in New Mexico. Lee had no connection with that document, and as a result of that discovery and the fact that there was not a scintilla of any other evidence linking Lee with the theft of W-88 warhead secrets, at the time of his indictment in December of 1999 Lee was no longer a target of an investigation concerning the W-88. So much for the main evidence.

The rest of the Times's original indictment against Lee was at best circumstantial and again does not withstand serious scrutiny. First among those distortions was the suggestion that Lee had failed a lie-detector test. As the Times's original account put it, "Energy gave the suspect a polygraph, or lie-detector test, in December. Unsatisfied, the F.B.I. administered a second test in February, and officials said the subject was found to be deceptive."

As noted, Lee, willingly and without legal advice, took that polygraph--ordered by an Administration under pressure from the Cox committee to do something about alleged Chinese spying--on December 23, 1998. The test asked four basic questions: "Have you ever committed espionage against the United States? Have you ever provided any classified weapons data to any unauthorized person? Have you had any contact with anyone to commit espionage against the United States? Have you ever had personal contact with anyone you know who has committed espionage against the United States?"

Lee's answer to all four questions was a definitive "No," and the polygraph expert conducting the test concluded, "I am of the opinion [that] this person was not deceptive when answering the relevant questions pertaining to involvement in espionage, unauthorized disclosure of classified information and unauthorized foreign contacts." The manager of the polygraph test center, under contract to the Energy Department, also reviewed the result and stated that his judgments "concur with the Examiner that upon completion of testing the Examinee was not deceptive when answering the relevant questions."

According to CBS News, which later looked into the matter: "The polygraph results were so convincing and unequivocal, that sources say the deputy director of the Los Alamos lab issued an apology to Lee, and work began to get him reinstated in the X-division. Furthermore, sources confirm to CBS News that the local Albuquerque FBI office sent a memo to headquarters in Washington saying it appeared that Lee was not their spy."

Yet when the results of the polygraph test arrived in the FBI's Washington headquarters, those same results were reinterpreted to conclude that Lee had not passed. CBS raised the question of how the very same polygraph charts could be open to such contrary interpretation with Richard Keifer, chairman of the American Polygraph Association, who is a former FBI agent who ran the agency's polygraph program. According to CBS News: "We asked Keifer to look at Lee's polygraph scores. He said the scores are 'crystal clear.' In fact, Keifer says, in all his years as a polygrapher, he had never been able to score anyone so high on the non-deceptive scale. He was at a loss to find any explanation for how the FBI could deem the polygraph scores as 'failing.'"

A second test, in February of 1999, in which Lee later said he had been asked only one question, has never been made available to independent experts. According to the CBS report: "The FBI then did its own testing of Lee, and again claimed that he failed. Yet sources say the FBI didn't interrogate Lee at this time, or even tell him he had failed the polygraph--an odd deviation from procedure for agents who are taught to immediately question anyone who is deceptive in a polygraph."

What the CBS story suggested was that the FBI, under pressure from the Administration and/or Congress, was doing all it could to find someone to blame for some breach of security and that Wen Ho Lee, one of the many thousands with access to data concerning the W-88, was singled out as the target of opportunity.

The New York Times had originally planned to run its first story on March 5, but--the newspaper's executive editor, Joseph Lelyveld, later admitted to the Washington Post--at the request of the FBI, it held off publication for a day. The FBI took advantage of that delay to grill Lee yet again. After publication of the Times story, the FBI conducted another vicious, baiting interview of Lee, which stands as a classic of intimidation. During that interview, two FBI special agents--Carol Covert and John Hudenko--told Lee repeatedly that he had failed both the December polygraph and the February test.

Some excerpts from that session:

FBI: You're never going to pass a polygraph. And you're never going to have a clearance. And you're not going to have a job. And if you get arrested you're not going to have a retirement...if I don't have something that I can tell Washington as to why you're failing those polygraphs, I can't do a thing.
Lee: Well, I understand.
FBI: I can't get you your job. I can't do anything for you, Wen Ho. I can't stop the newspapers from knocking on your door. I can't stop the newspapers from calling your son. I can't stop the people from polygraphing your wife. I can't stop somebody from coming and knocking on your door and putting handcuffs on you....
Lee: ...I don't know how to handle this case. I'm an honest person and I'm telling you the truth and you don't believe it. I, that's it....
FBI: Do you want to go down in history? Whether you're professing your innocence like the Rosenbergs to the day that they take you to the electric chair?...
Lee: I believe [God] will make the final judgment for my case.

CBS carried that exchange, which is a part of the public record, while the New York Times, which did so much to raise the specter of espionage and first mentioned the Rosenberg precedent, ignored it. Los Angeles Times reporter Bob Drogin later wrote that agent Covert, who had been asked to take a crash course in hostile interviews before meeting with Lee, "was so upset after conducting the interview that she took three months' sick leave and transferred out of the Santa Fe office."

The Times story contained other half-truths, omissions and falsehoods that helped construct a case against Lee. For example, it erroneously reported that "agents learned that the suspect had traveled to Hong Kong without reporting the trip as required. In Hong Kong, officials said, the bureau found records showing that the scientist had obtained $700 from the American Express office. Investigators suspect that he used it to buy an airline ticket to Shanghai." He didn't: The $700 withdrawal was used to permit his daughter, Alberta, to take a tourist trip to the nearby territories.

Some investigators. Lee's trips to China were made at the suggestion of his superiors at the Los Alamos laboratory, to whom he gave a full report upon his return.

Fortunately, somewhere between the Times attack on Lee and the government's move to indict him, Lee obtained highly competent legal counsel. Soon after the horrendous March 7 interview with the FBI, in which he was threatened with death in the electric chair, Alberta contacted a friend who had gone to Columbia Law School. As a result of that contact, Lee obtained the services of a brilliant former assistant US Attorney, 37-year-old Mark Holscher, who had become a partner in the old-line Los Angeles law firm of O'Melveny & Myers, which agreed to take the case on a pro bono basis with Holscher's bulldog-tough associate Richard Myers II. At the same time, Brian Sun, another former prosecutor with an equally impressive reputation, agreed to represent the family, also pro bono. Sun's contacts in the Asian-American community elicited most of the financial support that was to help Lee with the cost of investigators and other research. It also led to the hiring of an Albuquerque attorney, John Cline, who had extensive experience in national security cases, including a stint as Oliver North's attorney, and Cline's partner, Nancy Hollander, a highly regarded trial lawyer.

The defense team was able to explore the issue of racial profiling and unearthed evidence that it had dominated the hunt for Lee. Indeed, perhaps the most compelling reason for the plea bargain was that the judge approved a defense request by ordering the government to turn over thousands of pages of documents relating to that matter. The material was due to be handed over to the judge days after the plea bargain was accepted.

Gerth and Risen would have done well to investigate their "star witness," Trulock, the disenchanted Energy Department "whistleblower" who has tracked Lee for four years. The Times presented Trulock as a neutral observer, which was denied by other security experts, who claimed he had been building a case against Lee and was hostile to those who did not view the case his way.

Affidavits filed with the court at Lee's last bail hearing, just before the prosecution's sudden end, are devastating. Vrooman, the former head of counterintelligence at Los Alamos, declared under oath that "it is my opinion that the failure to look at the rest of the population [people with access to the same secret data as Lee] is because Lee is ethnic Chinese." Vrooman added that although there was a list of non-Chinese people with access, "Mr. Trulock made clear that Dr. Lee was his primary suspect." In a declaration dated June 22, 2000, Vrooman said, "The racial issue surfaced explicitly in comments made by Notra Trulock, the head of DOE's Office of Counterintelligence, who told me on November 20, 1996 that 'ethnic Chinese' should not be allowed to work on classified projects, including nuclear weapons."

Another devastating affidavit was filed under oath by Charles Washington, former acting director of counterintelligence at the Energy Department and currently a senior policy analyst at the DOE, who stated, "Based on my experience and my personal knowledge, I believe that Mr. Trulock improperly targeted Dr. Lee due to Dr. Lee's race and national origin." Washington, a decorated Vietnam veteran with extensive military intelligence experience, concludes:

Based upon my personal experience with Mr. Trulock, I strongly believe that he acts vindictively and opportunistically, that he improperly uses security issues to punish and discredit others, and that he has racist views towards minority groups. I am a black man of African-American origin, and I personally experienced his misconduct, and I know of other minorities who were victimized by Mr. Trulock. At one point I was forced to call outside police officers due to Mr. Trulock's abusive behavior, and I brought a lawsuit against the Department of Energy based on that incident, as well as other improper conduct by Mr. Trulock. That case was settled favorably to me by the Department of Energy this year with a pay raise, a cash award, restoration of leave, and other incentives.

According to the Los Angeles Times, Washington said Trulock "spat on me." Trulock is now under investigation by the FBI for allegedly mishandling classified material. Despite all the criticism of Trulock, the New York Times's Risen continued to write sympathetically about him and is still trusted by the paper to cover the Senate hearings on the Lee case objectively.

III: The Charges and What Followed

While it was a simple matter to fire Lee, it was altogether more difficult to charge him with espionage or any betrayal of US secrets, since there was absolutely no evidence. Lee had to be charged with something, but what? Once again, in an April 28, 1999, story, Gerth and Risen came through with the charge--again based on leaks from the ongoing investigation--that Lee had improperly downloaded computer files containing nuclear codes. This time their lead was even more frightening than the one in the first story: "A scientist suspected of spying for China improperly transferred huge amounts of secret data from a computer system at a government laboratory, compromising virtually every nuclear weapon in the United States arsenal, government and lab officials say."

In fact, the material that Gerth and Risen referred to as "secret data" was not classified as secret when Lee downloaded it; rather, it carried the low-level designation "protect as restricted data" (PARD), which meant it could be sent to colleagues through registered US mail. Some of the material was reclassified as "secret" after Lee's firing, but never as "top secret." As to "compromising virtually every nuclear weapon in the United States arsenal," that charge was dismissed as absurd by top weapons experts, who provided affidavits to Lee's defense attorneys. Former Los Alamos director Dr. Harold Agnew, a top adviser on nuclear weapons to five Presidents, testified that "if the People's Republic of China had already obtained these codes, or were to obtain these codes, it would have little or no effect whatsoever on today's nuclear balance."

When the government finally got around to arresting Lee, in December of 1999, it charged him only with the improper handling of files--and stretched to include the claim that the mishandling had been done "with the intent to injure the United States" and "secure an advantage to a foreign nation." But the indictment made no reference to the theft of the W-88 warhead data, which had led to his excoriation in the Times, and the prosecutors told the court they did not plan to make the case that Lee ever actually passed any secrets to a person or nation. (By contrast, former Director of Central Intelligence John Deutch, who downloaded some of the nation's top secrets to his home computer, has not yet been charged with any crime and remains a free man.)

For nine months after his arrest, Lee remained in prison without bail, while his attorneys mounted an aggressive effort to disprove the government's case against him. Finally, in August, after the lead FBI agent, Robert Messemer, admitted he'd misled the judge on several topics--including the claim that Lee had lied to a colleague to gain access to his computer--and witnesses came forward to say that much of the allegedly secret material was in the public domain, the judge agreed to bail for Lee.

IV: Conclusion

As the government's case came apart at the seams, more voices were raised in opposition, including The Bulletin of the Atomic Scientists and the Federation of American Scientists. Just before Lee's release, three of the nation's four scientific academies, endowed by Congress, demanded that Lee be given bail. That call even came to be echoed by the New York Times in a strong editorial, which noted that the judge had been lied to by the FBI on key aspects of the case in rendering his initial ruling denying Lee bail.

Judge Parker's decision to grant bail, which turned out to be moot because of the plea bargain in the case, was accompanied by a seventeen-page document that demolished key aspects of the government's case. As New York Times reporter James Sterngold summarized Parker's view: "The opinion is important in part because it casts deep doubts about many of the government's assertions about Dr. Lee's supposed deceptiveness and the value of the secrets he is accused of downloading, issues at the heart of the prosecution's case." And at the heart of the original New York Times reporting, one might add, not to take anything away from Sterngold's stellar reporting once he was assigned to the story.

Parker's words are worth quoting because they cut through all the hysteria about the losses to the US nuclear arsenal, which he himself had accepted in originally denying Lee's bail request. He cited, with apparent agreement, one top weapons expert who referred to the government's original claim that Lee had downloaded the "crown jewels" of America's nuclear program as "unbridled exaggeration."

On the matter of motive, the judge pointed out that the government had shifted its case from the claim that Lee was a potential, if not an actual, spy out to hurt the country's national security to the lame argument that he might have been attempting to burnish his credentials for future civilian employment in light of threatened massive layoffs at Los Alamos.

I have always believed this to be the most likely explanation for Lee's actions. During years of covering the labs for the Los Angeles Times, I frequently encountered complaints from scientists working there that they paid too heavy a professional price for not being able to share their work for public peer review, which is the basis of advancement in the academic world. The Los Alamos and Livermore labs are administered by the University of California, and most of the scientists are regarded as university faculty, but because of the secrecy requirements, they are forced to keep their best work hidden. Most of the time, that work is unnecessarily classified, and scientists must engage in heroic efforts to get it declassified for publication. Ironically, that is Trulock's problem right now, as he seeks to publish his own account of this escapade.

The government's case boiled down to nothing more than the possibility that Wen Ho Lee was attempting to gather evidence of his work in the hopes of securing employment at research institutes in non-Communist countries such as Germany and Switzerland. Even that claim proved to be false, however, when an FBI witness testified that there is no evidence that Lee mailed any such material or that any institute ever received it. Even if Lee had sought to use the data for that purpose, he might have intended to have it declassified first, before sending it out. But in any case, as Judge Parker stated, "enhancing one's résumé is less sinister than the treacherous motive the government, at least by implication, ascribed to Dr. Lee at the end of last year," when bail was denied.

From the crown jewels to an enhanced résumé. Quite a shift. None of this would have happened had the Times not been willing to broadcast leaks fed to its reporters by federal and Congressional investigators with a political agenda. Whether the goal was to nail Clinton on the campaign contributions issue or to revive the cold war with China, none of this had to do with the real concerns of national security.

Whatever Lee's transgressions, they do not involve issues of spying but only sloppiness in handling data. But to equate sloppiness with spying and to incarcerate a man for nine months under abysmal conditions in the hope that he will confess to something truly subversive is a clear violation of the standard of due process on which this country prides itself and which it seeks to export.

If this had happened in another country, there would have been a great outcry from human rights circles. But only late in the day did leading scientific organizations speak up, while human rights organizations failed to show they cared one whit about what has been a modern Dreyfus case. It is a sad confirmation of the hold of national security hysteria even now that so much dangerous mischief could have continued for so long, more or less unchallenged, by those who should know better.

As for Wen Ho Lee, the scientist came away thankful for a legal system in which the damage to him was limited by an ultimately courageous judge and a hopelessly bungled government case. But no one who cares about freedom of the individual in the face of abusive government power should ever forget how arrogant the FBI can be when backed by the shoddy reporting of this nation's premier newspaper. This was chillingly demonstrated on March 7, 1999, when Lee's FBI interrogators brandished the previous day's New York Times story as a weapon to threaten him:

FBI: Do you think that the press prints everything that's true? Do you think that everything in this article is true?
Lee: I don't think [so].
FBI: The press doesn't care.

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About Robert Scheer
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Investigation and Treatment of WHL

http://fas.org/sgp/congress/2000/h101200.html

This is a very long Congressional Record, only a few exhibits have been reproduced below, emphasis have been added.

 Declaration of Robert Vrooman
I, Robert Vrooman, do hereby declare and state:
1. I have reviewed the government's response to Wen Ho
Lee's Motion for Discovery of Materials Related to Selective
Prosecution, including the attached Declaration of Special
Agent Robert Messemer. As set out below, Agent Messsemer's
declaration contains numerous false statements. Based on my
experiences with Agent Messemer and the information I have
received from other FBI agents, I believe that the regularly
distorts information.
2. I did not tell Agent Messemer that Lee probably assisted
the Chinese by helping fix Chinese hydrocodes during his
travel in 1986 and 1988. His allegation that I did so is
false. Our April 28, 1999 meeting focused on [approx, one
line deleted] and Agent Messemer's theory that there was
something inappropriate going on [words deleted]. I attended
that interview solely as a favor to John Browne, the director
of Los Alamos National Laboratory. When it was over, I told
Browne that I considered the interview strange, because it
had nothing to do with the Lee case. I later learned from
officials at the CIA that Agent Messemer was falsely
informing CIA officials that I had been critical [word(s)
deleted]. At the time, Agent Messemer was attempting to shift
blame to the CIA for possible fallout [words deleted]. I
sought to obtain a copy of Agency Messemer's memoranda of my
interview and to have it corrected. See Attachment one. The
FBI refused to provide me a copy of this memorandum, which I
expect contains false information.
3. Agent Messemer's statement that the individuals selected
for investigation was chosen because they fit "matrix''
based on access to W-88 information and travel to the PRC is
false. Dozens of individuals who share those characteristics
were not chosen for investigation. As I explained in my prior
declaration, it is my firm belief that the actual reason Dr.
Lee was selected for investigation was because he made a call
to another person who was under investigation in spite of the
fact that he assisted the FBI in this case. It is my opinion
that the failure to look at the rest of the population is
because Lee is ethnic Chinese.
4. Mr. Moore's contention that the Chinese target
ethnically Chinese individuals to the exclusion of others,
therefore making it rational to focus investigations on such
individuals was not borne out by our experience at Los
Alamos, which was the critical context for this
investigation. It was our experience that Chinese
intelligence officials contacted everyone from the
laboratories with a nuclear weapons background who visited
China for information, regardless of their ethnicity. I am
unaware of any empirical data that would support any
inference that an American citizen born in Taiwan would be
more likely than any other American citizen [deletion].
5. Of the twelve people ultimately chosen for the short
list on which the investigation focused, some had no access
at all to W-88 information, and one did not have a security
clearance, but this individuals is ethnically Chinese. I do
not believe this was a coincidence. Further, this ethnically
Chinese individual did not fall within the "matrix'' which
Agent Messemer claims was used by the DOE and FBI. In
addition, although there were other names on the HI list, Mr.
Trulock made clear that Dr. Lee was his primary suspect.
6. Agent Messemer deliberately mischaracterizes the nature
of my comments to him regarding my concerns about Dr. Lee's
travel to the PRC. I did consider it unusual that Dr. Lee had
not reported any contact by Chinese agents when I debriefed
him following his return from the PRC. I did not believe then
and I do not believe now that Dr. Lee engaged in espionage,
and I made no such intimation to Agent Messemer. Dr. Lee and
his wife Sylvia were both cooperating with FBI
investigations, and I considered them loyal Americans.
Nonetheless, I considered Dr. Lee naive, and therefore a
potential security risk. It was to keep Dr. Lee out of harm's
way, not because I had any fear that he might knowingly
engage in improper conduct, that I recommended against
further unescorted trips out of the country for Dr. Lee.
7. My concerns about the real motivation behind the
investigation were exacerbated when I received a classified
intelligence briefing from Dr. Thomas Cook, an intelligence
analysis at LANL, in September 1999. This briefing put to
rest any concerns that I may have had that Dr. Lee helped the
Chinese in any substantial manner.
8. In my capacity as a counterintelligence investigator at
LANL, I was brief on the existence of an investigation code-
named "Buffalo Slaughter'' some time in the late 1980s
involving a non-Chinese individual working at DOE laboratory
who transferred classified information to a foreign country.
That individual was granted full immunity in return for
agreeing to a full debriefing on the information that he
passed. [Approx. six lines deleted].
9. The statements contained in my Declaration dated June
22, 2000 are true and correct and I so attest.
I declare under penalty of perjury of the laws of the
United States that the foregoing

[[Page H9891]]

is true and correct. Executed August 10, 2000, at Gallatin
Gateway, Montana.
[signed]
                                            Robert Vrooman.


Amnesty International Protests Solitary Confinement, Shackling of Dr. Wen Ho Lee
  Washington, DC, Aug. 16, 2000.--Amnesty International, the
world's largest human rights organization, has written to
Attorney General Janet Reno to protest the conditions under
which Dr. Wen Ho Lee has been held in pre-trial federal
detention since December 1999.
  In the Aug. 4 letter, released as Judge James A. Parker
hears a renewed application for Dr. Lee's release on bail,
Amnesty International expressed concern at reports that Dr.
Lee has been held in particularly harsh conditions of
solitary confinement, and has been confined to his cell for
23 hours each day. According to reports, Dr. Lee has also
been shackled at the wrists, waist, and ankles while taking
exercise once or twice a week in a federal enclosure. Amnesty
International is insisting that the use of shackles be
immediately discontinued.
  These conditions are unnecessarily punitive and contravene
  international human rights standards, said Curt Goering,
Senior Deputy Executive Director of Amnesty International
USA. The use of shackles is extremely disturbing and is
  grossly inappropriate in the circumstances.
  Rule 33 of the United Nations (UN) Standard Minimum Rules
for the Treatment of Prisoners provides that restraints
should be used only when strictly as a precaution against
escape during transfer, on medical grounds on the direction
of the medical officer or to prevent damage or injury. The
rules also state that restraints should never be applied as
punishment and that chains or irons shall not be used as
restraints. The rules also provide that every prisoner
(including pre-trial detainees) should have at least one hour
of suitable exercise in the open air daily.
  Amnesty International believes that the overall conditions
  under which Dr. Lee is detained contravene international
  standards, which require that all persons deprived of their
liberty be treated humanely and with respect for their
inherent dignity. Amnesty International is urging the Justice
Department to urgently review Dr. Lee's conditions of
confinement and ensure that he is being treated in accordance
with international standards. Such steps should include
provision for adequate exercise and out-of-cell time and
reasonable contact with the outside world.



American Bar Association, Washington, DC, August 18, 1999.
Hon. Janet Reno,
Attorney General, U.S. Department of Justice, Washington, DC.
 Dear Ms. Reno: We are writing to express our deep concern
about recent accounts that race may have played a significant
factor in pursuing the investigation of Dr. Wen Ho Lee for
alleged espionage. While we do not condone acts of espionage
or any other illegal activity by any individual, we ask that
you ensure that race is not now a factor as you make
decisions regarding this and other investigations and
prosecutions involving security violations at Los Alamos and
other national laboratories.
 According to Senators Fred Thompson and Joseph Lieberman in
a statement issued on August 5, 1999, the Department of
 Energy and the Federal Bureau of Investigation had multiple
 suspects for leaks of nuclear warhead information and yet
 only two--Dr. Lee and his wife--were investigated. Because
the DOE and FBI investigators failed to look into the other
suspects "--that is, to assess whether these others were not
for some reason equally suspicious--meant that it was
impossible to be sure that the Lees really did stand out as
the prime suspects.'' (Thompson/Lieberman Report p. 18.) This
account is further buttressed by recent statements made by
Robert S. Vrooman, former chief of Counter-Intelligence at
the Los Alamos National Laboratory. Mr. Vrooman stated that
 Dr. Lee was targeted for investigation mainly because of his
 ethnicity, and that there is no evidence that Dr. Lee leaked
 secrets to China. Mr. Vrooman noted that at least 13
 Caucasian scientists from Los Alamos "who went to the same
 [physics] institute and visited the same people'' as Dr. Lee
 were left out of the investigation.

[[Page H9890]]

 Furthermore, both the Thompson/Lieberman Statement and Mr.
Vrooman noted that key technical information concerning
certain weapons, whose acquisition by the Chinese government
initiated the investigation of Mr. Lee, was available to
numerous government and military entities that could have
been the source of the leaked information.
 While we recognize that Mr. Vrooman's statements will be
subject to debate, we believe that it is important that you
verify that no "racial profiling'' occurred in this
investigation. Additionally, we would like to request a
meeting with you to discuss these issues. In the meantime, we
ask that as you continue your investigation of security leaks
at our national laboratories, you do so with a heightened
consideration for fairness.
     Sincerely,
Nancy Choy,
 Executive Director, National Asian Pacific American Bar Association.
Daphne Kwok,
 Executive Director, Organization of Chinese Americans.
Jin Sook Lee,
 Executive Director, Asian Pacific American Labor Alliance, AFL-CIO.
Jon Melegrito,
 Executive Director, National Federation of Filipino American Associations.
Debasish Mishra,
 Executive Director, India Abroad Center for Political Awareness.
Karen Narasaki,
 Executive Director, National Asian Pacific American Legal Consortium.

Vrooman's Congressional Testimony

http://www.fas.org/sgp/congress/2000/vrooman.html

Statement of
Robert S. Vrooman
before the
Senate Judiciary Subcommittee
on Administrative Oversight and the Courts

"A Continuation of Oversight of the Wen Ho Lee Case"
October 3, 2000
Chairman Specter and members of the committee, I am honored to have the opportunity to testify before this committee about the investigation of Dr. Wen Ho Lee.

In this opening statement I will address three issues, ethnic profiling, FBI and Los Alamos cooperation during the Kindred Spirit investigation and the 1994 FBI investigation of Dr. Lee.

Many people have questioned why the investigators into the original allegations of Chinese nuclear espionage failed to look beyond Los Alamos National Laboratory and Dr. Lee. Those asking this question include such distinguished people as former Senator Rudman, Senators Thompson and Lieberman and recently FBI Director Louis J. Freeh. It is my opinion that the Kindred Spirit investigators had a subtle bias that the perpetrator had to be ethnic Chinese. I base my opinion on their comments and actions prior to and during the investigation.

These comments include noting something nefarious about the number of Chinese restaurants in Los Alamos, the number of Chinese postdoctoral employees and suggesting that DOE should not allow ethnic Chinese to work on classified programs. In April 2000, a Los Alamos scientist who worked on intelligence programs wrote a letter to the employee news bulletin. He said, "While I was assigned to NIS-9, I supported, on a part time basis, the counterintelligence investigation into the alleged Chinese espionage at Los Alamos. Based on my experience and observations, I concluded that racial profiling of Asian-Americans as a result of the investigation indeed took place, but principally at the Department of Energy. Further, DOE personnel directed some Los Alamos National Laboratory staff to undertake research that profiled Asians and Asian-Americans at the Laboratory. I do not believe any of us were happy with this. I feel insulted, personally and professionally, that the DOE is seeking to spread the tarnish that belongs on it, by having the Weapons Complex undergo the mandatory diversity stand down by May 5th."

The author of the above letter is referring to a request from DOE Headquarters to Los Alamos and Livermore for a list of Chinese-Americans and the programs that they were working on. Both labs refused to provide such a list because the request was clearly in violation of EO 12333.

Director Freeh recently testified to a joint hearing of the Intelligence and Judiciary Committees that the FBI opened a case on Lee based on the DOE Administrative Inquiry which stated that "Wen Ho Lee appears to have the opportunity, means and motivation" to compromise the W-88 information. Director Freeh is correct that the DOE inquiry stated this, but I would like to add that every time Lee's motive was discussed it came down to his ethnicity. There was no other motive ever suggested.

I would also like to note that the DOE inquiry was flawed because Lee did not have ready access to all of the W-88/Mark 5-reentry system or another US system that was similarly compromised. He would seem at best to be only one source of the complete leak. The FBI, of course, had no way of knowing this unless the DOE inquiry was a complete and rigorous investigation.

In spite of our reservations about the Kindred Spirit investigation, we cooperated fully with the FBI in all subsequent investigations involving Dr. Lee. From the day the FBI informed us that they intended to conduct an investigation into Dr. Lee, FBI representatives expressed similar reservations about the Kindred Spirit analysis. In my opinion, the FBI should not have accepted this case until certain issues were resolved. I am willing to elaborate on these issues in closed session if the committee desires.

As a result of serious questions about the DOE inquiry, the FBI did not assign an agent to this case on a full-time basis. It was added to one agent's already full caseload. The failure to aggressively resolve the allegations against Dr. Lee was a great source of frustration to Los Alamos Director Sig Hecker and me. On February 14, 1997 I had an acrimonious meeting with the FBI counterintelligence squad chief in Albuquerque, and he agreed to assign an agent to the investigation on a full-time basis. After this occurred we saw some progress on the case including a FISA request.

On October 15, 1997 that agent told me that he was going to work on the Peter H. Lee case and requested Los Alamos' assistance in the investigation. Once again, we had no agent assigned full time to the Wen Ho Lee case. That was the situation when I retired from Los Alamos on March 13, 1998.

On February 23, 1994, during an officially approved six-person Chinese delegation to Los Alamos, Dr. Lee met with a member of the delegation. This meeting occurred in the presence of all of the US and Chinese participants, however, and was reported in writing to the FBI by a US participant This document is classified but available to the committee from the author.

I was not aware that this meeting resulted in a FBI investigation until Director Freeh testified to that on September 26, 2000. For the record, let me state that this investigation occurred without any request for assistance from Los Alamos. We were not aware of any FBI interest in Dr. Lee until July 3, 1996.

We should not lionize Dr. Lee. He has much to answer for. On the other hand, he was not treated fairly. There are many examples, but I am most disturbed by the leaking of the investigation, along with his name, to the media. This single act destroyed the integrity of the investigation as well as adversely impacting Dr. Lee. As a result of this, I doubt if we will ever solve the mystery of how the Chinese obtained US nuclear weapons secrets.

Finally I am concerned about the collateral damage from the Lee case, particularly the adverse impact it has had on our nuclear weapons labs. Former Senator Howard Baker and former Representative Lee Hamilton recently reported that the arbitrary security changes at the national labs has damaged morale, productivity and recruitment. In my opinion, this is all the more outrageous because the national labs have had and continue to have good security. If we look at what really counts, which are results not audits of paperwork and procedures, security at the labs has been better than all other government agencies. Results are reflected in the number of people in the last fifty years who were convicted, confessed to or fled the country to avoid prosecution for espionage. When we look at this by organization, the results reflect favorably on the DOE complex. We have two cases in the DOE and neither case involved the compromise of nuclear weapons information. During the same time period there were ten cases in the CIA, three in the FBI, seven in the NSA and over 80 in the DOD. When one considers that the DOE population is at least an order of magnitude larger than all but DOD, this record is impressive.

I believe that we must act quickly to repair the damage to our national labs so that the talent in the labs is available to meet the challenges of the 21st century.

Capital Gang on Wen Ho Lee

http://transcripts.cnn.com/TRANSCRIPTS/0009/16/cg.00.html
SHIELDS: Welcome back.

Nuclear physicist Wen Ho Lee ended nine months of solitary confinement on espionage charges with a plea bargain. Judge James Parker scolded the prosecution.

Quote, "Government officials caused embarrassment not just for me but also have caused the nation embarrassment. I sincerely apologize for the unfair manner in which you were held," end quote.

The attorney general refused to apologize, but the president did.

(BEGIN VIDEO CLIP)

JANET RENO, ATTORNEY GENERAL: I think Dr. Lee had the opportunity from the beginning to resolve this matter, and he chose not to. And I think he must look to himself.

WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: I don't think that you can justify, in retrospect, keeping a person in jail without bail when you're prepared to make that kind of agreement? So I, too, am quite troubled by it. (END VIDEO CLIP)

SHIELDS: Al, who's right, the president or the attorney general?

HUNT: If the president means what he says, he ought to demand either immediate accountability or the resignation of Janet Reno, Louis Freeh, the FBI director and Energy Secretary Bill Richardson.

Mark, as "The L.A.Times" said this week, what those three did is they kept this man in solitary confinement for nine months under shackles, denied him bail in order to pressure him to confess to a crime that he didn't commit. That is Constitutionally impermissible, and it is an absolute outrage.

I also think it's quite clearly this was a case of racial profiling. If his was name was Lee H. Winston, he never would have been, you know, picked on like this.

And, Mark, you may -- he illicitly downloaded classified material. So did John Deutsche, the former CIA director. He hasn't been put in shackles yet. This is a shameful episode. Clinton ought to act on what he said.

O'BEIRNE: I totally agree with Al on this one, except I -- well, except look what Bill Clinton's doing here. He acts as if the Justice Department is an independent fourth branch of government. They all work for him.

And, of course, it's the legacy of having an incompetent attorney general. This is not the first time she's in over her head because she was so detached. But look, why didn't Bill Clinton interfere sooner? Well, the explanation because he always felt uneasy about the fact that this man was being held in solitary for nine months. Well Joe Lockhart tells us, well, he didn't want the bad press, You would have been all over him. He didn't mind bad press when he was protecting his own disordered, predatory behavior, but he didn't want to risk bad press to protect the civil rights of this poor man.

SHIELDS: You've been an officer of the court, Ed Rendell -- your reaction?

RENDELL: As a district attorney, obviously the result is very strange. It doesn't in any way justify being held without bail, clearly. But I think -- I don't know if the president had all the facts. I think before I would totally commend this case, I'd want to know what the facts were. If Al's correct, and that was the sole reason he was being held in jail, that is inappropriate conduct. I just don't think we know all the facts.

NOVAK: Oh, Ed, the president was exactly right -- I don't often say that -- when he says...

SHIELDS: I'll say.

NOVAK: ... that if you have a plea bargain for one count out of 59, you shouldn't have had him in solitary confinement for nine months. It doesn't matter what the facts are.

Now I would say this...

RENDELL: But, Al, I can tell you...

NOVAK: ... I think that the president has got a confusion. I think he has already begun his new career as a commentator, because he's kind of acting, well, I don't have anything to do with that. It's not my responsibility. I'm not going to do anything in the future.

But I will say one thing. I've been saying at this table for a long time...

SHIELDS: You have not at this table.

NOVAK: The old table -- that Janet Reno is a disaster.

O'BEIRNE: Correct.

NOVAK: She was a poor appointment, she is a pathetic old woman. I feel sorry for her because she's ill, but she gets these terrible cases all the way from Waco to this and she says, well, we've acted on the basis of the law and the evidence. She never says anything, and she gets a soft press outs of it. She's a disgrace.

HUNT: And I disagree with you, but on this one you're right. An FBI agent named Robert Messner (ph) lied under oath. Why hasn't he been fired?

SHIELDS: Last word -- Al Hunt. Ed Rendell, thank you for being with us.

THE GANG will be back with the "Outrage of the Week."

(COMMERCIAL BREAK)

SHIELDS: And now for the "Outrage of the Week."

Ronald Reagan was a popular two-term president who many Republicans and most conservatives continue to revere. The National Airport has been renamed for Mr. Reagan, and so, too, has an enormous new federal office building in Washington. Now, on direct contradiction of U.S. law which bars memorials to anyone American until at least 25 years after his or her death, Republicans on a House committee want to build a Republican memorial to join Abraham Lincoln and George Washington on the national Mall. Let's obey the law and wait the required 25 years, for goodness sakes.

Bob Novak.

NOVAK: The teachers in Buffalo, New York, are something else. Not only have they defied state law by going on strike but ignored a judge's back-to-order -- back-to-work order until temporarily complying yesterday. The only people who suffer are the children. But the Buffalo Teachers Federation doesn't care. Like other teachers unions, it is arrogant, entrenched power in the Democratic Party and intimidating the Republicans. They block school reforms, then hit the streets for contract demands. Clearly, decline in public schools has accompanied rising union power by teachers.

SHIELDS: Kate O'Beirne.

O'BEIRNE: It's wrong to profit from messages that poison our culture and teach our children that killing is cool. That was Senator Lieberman in the past, criticizing the music industry, This week, he joined the vice president for a $6 million fund raiser with their friends in the music industry, where his campaign directly profited from the sex and violence Hollywood peddles to our kids.

SHIELDS: Al Hunt.

HUNT: Mark, Senators Mitch McConnell and Judd Gregg tried to sneak through a provision to let federal judges rake in honoraria from any manner of special interests. Incredibly, this had the blessing of Chief Justice Rehnquist. Senate Majority Leader Trent Lott may have let the cat out of the bag by declaring that this could pave the way to lift the honoraria ban on senators, too. If judges or senators need more money, do it through the front door of pay increases, not the back door of legalized bribery.

SHIELDS: This is Mark Shields saying good night for THE CAPITAL GANG.

Judge Scolds U.S. Over Case Tactics

http://articles.latimes.com/2000/sep/14/news/mn-20908
By Bob Drogin
September 14, 2000 in print edition A-1

Wen Ho Lee walked out of court a free man Wednesday after a federal judge repeatedly apologized for incarcerating him for nine months without trial and angrily rebuked the Clinton administration for its handling of a case that “embarrassed this entire nation.”

In a morning marked by high drama, laughter and tears of joy, the former Los Alamos nuclear weapon scientist agreed in thickly accented English to a negotiated deal that brings an abrupt end to the highly controversial case.

Lee pleaded guilty to one felony charge of illegally retaining national defense information. He was sentenced to the 278 days he has served since his arrest. The government dismissed all 58 other counts, many of which carried life sentences.

“Next few days, I’m going fishing,” Lee declared with a broad grin on the mobbed courthouse steps after his release. His lawyer Mark Holscher called it “a sweet day indeed.”

In a sworn statement provided as part of the deal, Lee said for the first time that he did not intend to harm the United States when he downloaded classified nuclear weapon data onto an unsecured computer and portable tapes at Los Alamos and that he had not passed the tapes or their contents to anyone.

Lee, 60, also agreed to submit to intense debriefings by government investigators for 10 days over the next three weeks and further questioning if necessary over the next year to satisfy government concerns about why Lee created the tapes and what he did with them. Lee could face further prosecution if he fails to comply.

Norman Bay, U.S. attorney for New Mexico, called the resolution of the high-profile and highly controversial national security case “a favorable disposition for the government and a fair disposition for the defendant.”

But the court hearing was dominated by U.S. District Judge James A. Parker’s stunning summation, an emotion-charged monologue in which he repeatedly apologized to Lee and bitterly condemned government prosecutorial tactics.

Speaking in somber tones to a packed and hushed courtroom, Parker excoriated what he called the “top decision-makers in the executive branch.” He particularly criticized the White House, U.S. Atty. Gen. Janet Reno, Energy Secretary Bill Richardson and the FBI for their roles in bringing the case.

“They have embarrassed this entire nation and each of us who is a citizen of it,” Parker said.

The decision to prosecute Lee, he said, “was made at the highest levels of the executive branch in Washington, D.C.” He cited a meeting of senior Justice and Energy Department officials at the White House on Dec. 4, six days before Lee was indicted.

The executive branch, Parker warned, “has enormous power, the abuse of which can be devastating to our citizens.”

In contrast, Parker effusively praised Lee’s lawyers as “outstanding” and said that they would have provided a “formidable” defense had the case gone to trial.

“You turned a battleship in this case,” the judge told Lee’s lawyers from the bench.

Prosecutors sat stone-faced through much of Parker’s harsh scolding. The FBI’s chief investigator, Robert Messemer, whose recantation last month of his own testimony sharply undermined the prosecution’s case, scowled. Messemer, a beefy man with slicked-back hair, avoided reporters after the hearing.

An FBI source in Washington said that, while Messemer’s conduct in the case will be routinely reviewed, the agency seems to believe that his testimony “wasn’t that inaccurate” and it is doubtful he will be disciplined.

But Parker, who took over as chief federal judge in New Mexico this month, repeatedly said that the government “misled” him by exaggerating evidence against Lee in December when prosecutors insisted that the Taiwan-born scientist should be denied bail and held incommunicado in jail until his trial.

“Dr. Lee, I feel great sadness that I was led astray” during the December bail hearing, Parker said.

Parker, 63, also criticized John J. Kelly, the former U.S. attorney here, who quit in January to run for Congress. Before leaving, Kelly “personally argued vehemently against your release and persuaded me not to release you,” the judge told Lee.

“In hindsight, you should not have been held in custody,” he added.

Until recently, Lee spent his time in virtual solitary confinement in a Santa Fe jail. He was allowed to see his family one hour a week and to exercise alone one hour a day. He was shackled hand and foot even during those periods, however, as well as during his meetings with his lawyers.

Parker complained that the government moved much too slowly, despite his urgings, to ease the conditions of Lee’s confinement.

“Dr. Lee, you were terribly wronged by being held in pretrial custody in demeaning and unnecessarily punitive conditions,” Parker said. “I am truly sorry.”

Parker also questioned why the government ignored an offer by Lee’s lawyers, shortly before his indictment Dec. 10, for Lee to take a polygraph test at Los Alamos to answer questions about the tapes. Had they responded, the judge suggested, the last nine months might have been avoided.

“Nothing came of it, and I am saddened that nothing came of it,” Parker said.

But Parker called it “most perplexing” that the government, which repeatedly fought to keep Lee in jail, “should suddenly agree to release you” without any conditions. “This makes no sense to me.”

Lee’s family and supporters burst into loud applause when Parker dismissed the court–and closed the sensational case–shortly after 1 p.m. here. Many wept, hugged and cheered as they filed out into the blinding New Mexico sunshine.

The plea arrangement was hammered out last weekend after a series of secret sessions but nearly collapsed Monday shortly before the plea was to be filed and Lee was to go home.

In a case marked by agonizing cliffhangers, prosecutors insisted on additional concessions at the last minute, including a demand that Lee submit to government questions for more time than in the original proposed agreement.

The court-appointed mediator, U.S. 9th Circuit Court of Appeals Judge Edward Leavy, rushed to Albuquerque on Tuesday from his home in Portland, Ore., to negotiate a compromise. He met prosecutors and defense lawyers until nearly 3 a.m. Wednesday before the stalled deal was revived.

Lee will pay no fine or restitution under the agreement and is not subject to probation or supervision. He must get approval from the government if he wishes to travel abroad during the next year, but Leavy will mediate any disputes.

Lee arrived at his home in White Rock, a suburb of Los Alamos, at 5:30 p.m. local time to a tumultuous welcome from friends and supporters, as well as a crush of reporters and camera crews crowded around his simple wood-and-brick bungalow.

In a brief statement, Lee thanked his neighbors. “They made me very strong when I was in jail,” he said.

The first sign that Lee was going home came at 7:50 a.m., when defense attorney Holscher strode up the courthouse steps with a broad smile. “It’s a good morning, a very good morning,” he said.

But a 9 a.m. hearing was quickly postponed until 10, and that was pushed back another hour as lawyers drafted final wording of the deal. Lee, who wore a dark gray suit and a blue tie, appeared relaxed as he waved at friends and laughed with his lawyers. His wife, Sylvia, daughter, Alberta, and son, Chung, waited silently in the front row of the courtroom.

Finally, at 11:02, the silver-haired Parker entered the courtroom in his flowing black robes.

“I understand the parties have finally agreed,” he announced.

Lee raised his right hand, fingers splayed far apart, as he was sworn in beside his lawyers. For the next 90 minutes, the judge patiently explained the 10-page plea agreement, stopping every few minutes to ask Lee if he understood and agreed.

Although Lee has lived in the United States since the 1960s and is a naturalized U.S. citizen, he asked the judge to repeat himself several times or turned to his lawyers for a whispered explanation. “Now I understand, yes,” he then would answer.

As a convicted felon, Lee will lose the right to run for office, serve on a jury, possess a gun or vote.

“You’ll be giving up your right to cast a vote about what was done to you,” Parker told Lee. “Do you understand?”

“Yes,” Lee replied softly.

Finally, Lee read aloud his crime: “On a date certain in 1994, I used an unsecured computer in T-Division to download a document or writing relating to the national defense,” he began.

Lee said he knew at the time that possession of the tape outside the X-Division, the lab’s top-secret weapon design area, was unauthorized and violated lab directives. He said he kept the tape and never returned it to the lab.

“How do you plead, guilty or not guilty?” the judge finally asked at 11:58 a.m.

“Guilty,” Lee said firmly, leaning forward into the microphone. A tiny man, he stood a full head shorter than his attorneys and appeared an unlikely subject of such intense attention.

If convicted in court of the same crime, Lee could have been sentenced to 10 years in jail, a $250,000 fine and mandatory three years’ probation.

Except for an interview on CBS-TV’s “60 Minutes” in August 1999, Lee had not spoken publicly before. An anonymous scientist in the secret world of nuclear weapons, Lee exploded into the nation’s headlines in March 1999, when he was identified as the target of an FBI investigation into Chinese espionage. Photos of his arrest, when he was escorted away by burly FBI agents, were shown again and again.

The case created a political firestorm on Capitol Hill, where Republican critics accused the Clinton administration of ignoring nuclear theft to soothe relations with Beijing. In the end, the FBI admitted that it had no evidence that Lee was a spy and he was not charged with espionage.

But he was indicted Dec. 10 for allegedly downloading the files. From the start, the government said that it was most concerned about recovering seven tapes that Lee had created. Lee insisted that they were destroyed but offered no proof.

Under the agreement, Lee agreed to provide a “truthful written declaration, under penalty of perjury, stating the manner in which he disposed of the seven tapes.” The statement was turned over to the government, but was not released.

The chief prosecutor, Assistant U.S. Atty. George Stamboulidis, defended the agreement, since it prevents disclosure of national secrets in open court.

Even if Lee were convicted of all charges at trial, Stamboulidis added, he “might go to prison for a very long time, but we might never learn what happened to those tapes.”

When the judge asked why the government suddenly was willing to accept Lee’s word, after challenging his veracity for months, Stamboulidis replied that Lee would face “a whole world of horribles” through further prosecution if he failed to cooperate.

In Washington, FBI Director Louis J. Freeh defended the bureau’s actions in the Lee case and insisted that the most important result–protecting the nation’s secrets–has been realized.

In a statement, Freeh said that the plea agreement “provides the opportunity to determine what in fact happened to the nuclear design and source codes that Dr. Lee unlawfully and criminally downloaded, copied and removed from Los Alamos.”

Freeh said the data Lee took “represents the fruits of hundreds of billions of dollars of investment by the United States.”

Had they gone to trial, Freeh said, the government was prepared to prove that Lee sought to conceal what he had done, “and to destroy the electronic footprints left by the transfer and downloading process.”

He added: “The government was prepared to prove that, after the existence of the investigation became known, efforts were made by Dr. Lee to delete files that had been manipulated into unclassified systems” and “that there were many attempts–some in the middle of the night–to regain access to the classified systems even after access had been formally revoked by Los Alamos.”

“Determining what happened to the tapes has always been paramount to prosecution,” Freeh added. “The safety of the nation demands that we take this important step.”

Freeh did not mention Judge Parker’s scolding in his statement.

Reno said that she and Freeh “shoulder the awesome responsibility of protecting national security” and added that the terms of the plea will allow investigators to find out what happened to Lee’s tapes. “This is an agreement that is in the best interest of our national security in that it gives us our best chance to find out what happened to the tapes.”


Related Articles

* Clinton Criticizes Justice Dept. Over Wen Ho Lee Case Sep 15, 2000
* Lee’s Detention Ran Counter to U.S. Values, Clinton Says Sep 16, 2000
* Attorney in Los Alamos Case Quits Jan 04, 2000
* Scientist’s Attorneys Want Seized Evidence Suppressed Apr 18, 2000
* Prosecutors Fight Bid by Jailed Scientist May 25, 2000
* Reno, Freeh Insist Wen Ho Lee Posed ‘Great Risk’ to U.S. Sep 27, 2000

Clinton's Remarks

http://www.fas.org/irp/ops/ci/whl_clinton.html
POTUS REMARKS UPON DEPARTURE ON PATIENTS BILL OF RIGHTS
September 14, 2000

[...]

Q Mr. President, could you take a question? I was wondering, Mr. President, if you share the embarrassment that was expressed yesterday by the federal judge in New Mexico about the treatment of Wen Ho Lee during his year of confinement under federal authorities?

THE PRESIDENT: Well, I always had reservations about the claims that were being made denying him bail. And let me say -- I think I speak for everyone in the White House -- we took those claims on good faith by the people in the government that were making them, and a couple days after they made the claim that this man could not possibly be let out of jail on bail because he would be such a danger -- of flight, or such a danger to America's security -- all of a sudden they reach a plea agreement which will, if anything, make his alleged defense look modest compared to the claims that were made against him.

So the whole thing was quite troubling to me, and I think it's very difficult to reconcile the two positions, that one day he's a terrible risk to the national security, and the next day they're making a plea agreement for an offense far more modest than what had been alleged.

Now, I do hope that, as part of that plea agreement, he will help them to reconstitute the missing files, because that's what really important to our national security, and we will find out eventually what, if any, use was made of them by him or anybody else who got a hold of them.

But I think what should be disturbing to the American people -- we ought not to keep people in jail without bail, unless there's some real profound reason. And to keep someone in jail without bail, argue right up to the 11th hour that they're a terrible risk, and then turn around and make that sort of plea agreement -- it may be that the plea agreement is the right and just thing, and I have absolutely no doubt that the people who were investigating and pursuing this case believe they were doing the right thing for the nation's security -- but I don't think that you can justify, in retrospect, keeping a person in jail without bail when you're prepared to make that kind of agreement. It just can't be justified, and I don't believe it can be, and so I, too, am quite troubled by it.

Q -- clemency here? Are you thinking in terms of clemency for him, for Wen Ho Lee?

THE PRESIDENT: Well, I'd have to look at that. It depends on, if he's in fact -- he has said he's going to plead guilty to an offense which is not insubstantial, but it's certainly a bailable offense, and it means he spent a lot of time in prison that any ordinary American wouldn't have, and that bothers me.

[...]

Flawed Case against Dr. Lee

http://articles.latimes.com/2000/sep/13/news/mn-20151
How FBI's Flawed Case Against Lee Unraveled
Investigators pursued questionable tactics in their zeal to prosecute a Los Alamos scientist as a spy. Careers are ruined, and still no one knows how China obtained nuclear secrets.
By BOB DROGIN, Times Staff Writer

Key Players in the Lee Case
Wen Ho Lee: Former computer scientist at Los Alamos National Laboratory, indicted for downloading vast library of data on U.S. nuclear weapon design.

Notra Trulock III: Former head of counterintelligence at Energy Department, one of first government officials to identify Lee as a suspect in espionage investigation.

Bill Richardson: U.S. Energy secretary, pushed for Lee's prosecu-tion based on limited evidence, came under criticism in Congress for security lapses at Los Alamos.

Other Players
James A. Parker: U.S. district judge in Albuquerque, called attention to weaknesses in government's case against Lee and reversed earlier decision to deny bail.

Robert Messemer: The FBI's chief investigator in the Lee case, publicly recanted earlier testimony in which he had accused Lee of acting in a deceptive manner.

Robert Vrooman: Former head of counterintelligence at Los Alamos, Energy Department whistle-blower who said Lee was targeted because of his ethnicity.

WASHINGTON--Early last year, Wen Ho Lee walked from his cluttered sixth-floor office at the Los Alamos National Laboratory down to a first-floor conference room. A fellow nuclear weapon scientist and two FBI agents then grilled him until nearly nightfall.

In halting English, the Taiwan-born Lee repeatedly denied--as he had in 19 previous sessions with the FBI--that he ever gave design secrets about America's most sophisticated nuclear warhead to China or anyone else.

"At the end, everyone was convinced he was not a spy," recalled Robert Vrooman, then head of counterintelligence at Los Alamos, who listened to the previously undisclosed meeting from another room. "We all concluded there was no evidence. We figured we'd put this puppy to bed."

But the next day, an FBI agent with the unlikely name of Carol Covert was called into the bureau's Santa Fe, N.M., office and ordered to take a special FBI crash course in "hostile interviews."

A day later, Covert and fellow FBI agent John Podenko sat across from Lee. They said--falsely--that Lee had failed a polygraph test. Then they angrily warned him that, unless he cooperated, he might never see his children again and could be "electrocuted."

Finally, the two agents pulled out a piece of paper and demanded that Lee sign a full confession of espionage--a crime that carries the death penalty--without a lawyer present. Lee had not even retained a lawyer at the time.

"Poor bastard, he didn't understand," said an official who has seen the FBI-drafted confession. "He kept crossing things out and trying to correct it. He was trying to help them. He still didn't get what was happening."

Lee learned soon enough. He was fired from Los Alamos the next day, March 8, 1999, and news accounts branded him the "spy of the century." The shy scientist, an expert in the arcane physics of fluid dynamics and the elegant art of Chinese cooking, soon became ensnared in a legal and political nightmare.

Lee, now 60, has spent the last 277 days in jail, under conditions usually reserved for convicted terrorists or spies. He hopes to go home today if his lawyers and federal prosecutors can agree during a scheduled court hearing in Albuquerque on a proposed plea arrangement. He would plead guilty to one felony charge under the deal, which would bring an embarrassing close to one of the most important national security cases since the Cold War.

Why did the government proceed with what now appears a seriously flawed prosecution? Not all the answers are known. But investigators' zeal to catch a spy, fueled by sensational press reports, near-hysteria by some members of Congress and a U.S. attorney in New Mexico who sought to secure an indictment before he retired to run for Congress created a structure that was shaky from the start--and that quickly began to crumble.

What is clear is that in the wake of the inquiry, morale at the lab is a shambles, careers and lives have been ruined and the government is no closer today than when it started in determining how China obtained secrets on U.S. nuclear weapons.

Case Stems From Warhead Inquiry
The case began in 1996 as "Kindred Spirit," a three-year FBI investigation into China's alleged theft of America's W-88 warhead secrets from Los Alamos. Last year, when no such evidence was found linking Lee or Los Alamos to Chinese espionage, a new inquiry--ironically code-named "Sea Change"--was launched.

The result: Lee was indicted on 59 charges and arrested last Dec. 10 for allegedly transferring top-secret nuclear weapon data to unsecured computers and portable tapes at Los Alamos. Thirty-nine of the charges, all carrying life sentences, alleged that Lee acted with intent to harm the United States and to aid a foreign power. Seven of the tapes could not be located, despite what the FBI said was one of the largest searches in its history. Lee's lawyers claimed that he destroyed the tapes but offered no proof.

Problems quickly arose in the FBI inquiry.

The weapon data were not formally classified when Lee copied them. Even now, the material is classified "secret restricted data," which means under Energy Department regulations that it may be mailed through the U.S. Postal Service. And many senior scientists openly dispute the government's contention that the missing data represent America's "crown jewels."

Nor was the FBI investigation as complete as claimed.

Agents repeatedly argued after Lee's arrest that he should be held incommunicado in jail. One agent ominously warned that Lee might pass a coded message, such as "the fish are biting" or "Uncle Wen says hello," that could endanger national security.

But the FBI's concern was new: It did not wiretap Lee's home telephones during the nine months between the discovery that the scientist had created the tapes and his arrest. Lee made hundreds of unmonitored calls.

FBI tactics also came into question. On Feb. 10, 1999, an FBI polygrapher repeatedly asked Lee about highly classified nuclear weapon designs--and required him to draw detailed diagrams--in an unsecured hotel room in Albuquerque. In theory, Lee broke the law by answering. His drawings are still classified.

Lawyers Describe Lee as Bumbling, Naive
On the other hand, Lee's actions remain a mystery. Why did he devote 40 hours to downloading the equivalent of 400,000 pages of nuclear data from the lab's classified computers? Why did he repeatedly try to enter a classified area after his security clearance was revoked--once at 3:30 a.m. on Christmas Eve?

Lee's lawyers depict him as bumbling and naive, a pack rat who lived in a rarefied world where complex nuclear equations lead to weapons of mass destruction. As for the plea, one lawyer said: "He doesn't know the difference between a misdemeanor and a felony."

If Lee had evil intent, his defenders ask, why did he leave the files in open view on the lab's unclassified system for six years? Why did he call the lab's computer help desk for aid in moving and later deleting the files?

"He's clueless," said Lee's 26-year-old daughter, Alberta. A longtime colleague said that Lee "is an absolute genius. Or a moron. Take your pick. He's a totally focused scientist."

For its part, the FBI said it is satisfied with the proposed plea agreement hammered out last weekend by defense and prosecution lawyers. Barring further delays, Lee is expected to plead guilty today to one charge of unlawful retention of national defense information, a felony. All 58 other charges will be dropped, and no fine, probation or other penalty will be imposed.

Lee, in turn, must agree to debrief the FBI over the next two weeks, take polygraph tests if necessary, and answer questions over the next six months, especially about why he made the tapes and what he did with them. It will be Lee's first meeting with the FBI since agents tried to persuade him to confess to a capital crime.

"It's breathtaking," said Steven Aftergood, a senior analyst at the Federation of American Scientists, a nonprofit group founded by veterans of the original Manhattan Project at Los Alamos. "It's a dramatic reversal. One feels relieved for Wen Ho Lee. But it's disgraceful that a man spent nine months in solitary confinement without being convicted of a crime."

In a statement issued Monday--before an unexplained snag delayed filing of the plea agreement--the FBI said that it had achieved its goal by "securing the full cooperation of Mr. Lee."

The FBI also said the indictment followed "repeated requests" for Lee to explain what he did with the tapes. "None was forthcoming. The indictment followed substantial evidence that the tapes were clandestinely made and removed from Los Alamos, but no evidence or assistance [exists] that resolved the missing tape dilemma."

Actually, Lee's lawyers sent letters to the Justice Department shortly before he was indicted, specifically offering to let him take a polygraph test to answer questions about the tapes. The offer was ignored.

So was Vrooman. In early 1999, he and several colleagues repeatedly testified in closed-door sessions before the House and Senate Intelligence committees and several investigative review boards. Their message: No espionage had occurred and Lee had been unfairly targeted because he is Chinese American.

"I was trying to do it within the system," Vrooman said.

Energy Department Issues Reprimands
But the Energy Department clamped down. On Aug. 12, 1999, after Vrooman had retired from Los Alamos, Energy Secretary Bill Richardson issued reprimands to Vrooman and two colleagues at the lab for allegedly failing to assist the FBI in its pursuit of Chinese espionage.

Vrooman was barred from being a consultant for the department for five years. Another counterintelligence official at the lab, who also was disciplined, quit.

Angry at what he viewed as a cover-up, Vrooman went public. His complaints about racial profiling and what he called a complete lack of evidence against Lee were the first indications that the case was seriously amiss.

But Notra Trulock III, then director of counterintelligence at the Energy Department, continued to insist that a Chinese spy had looted Los Alamos and that Lee was the only suspect. Trulock was a self-described "knuckle-dragger," a hard-charging ideologue with little patience for those who did not agree with him.

Trulock found powerful allies in Congress, where Republican leaders urged members to use the Lee case to excoriate the Clinton administration for lax security in the face of wholesale nuclear theft. Heated hearings and lurid reports dominated news reports for weeks.

But many colleagues who knew Trulock best had little respect for his views.

One of them, Charles E. Washington, who worked for Trulock as acting director of counterintelligence and is now a senior policy analyst at the Energy Department, said in a sworn affidavit filed on Lee's behalf that Trulock "acts vindictively and opportunistically, that he improperly uses security issues to punish and discredit others and that he has racist views toward minority groups."

In a telephone interview, Washington said that he once was forced to call outside police to the Energy Department headquarters "due to Mr. Trulock's abusive behavior" during an argument. "He spat on me," he said.

Washington, who is black, filed a federal discrimination lawsuit as a result. The Energy Department settled the case last year, giving Washington a pay raise, a cash award, restoration of leave and other incentives.

Trulock could not be reached for comment. He quit the Energy Department last year after complaining that the Clinton administration was trying to whitewash Chinese espionage. Ironically, the FBI is now investigating Trulock for attempting to sell an article on the Lee case that allegedly contained classified information.

Key Witness Turns Into Weakest Link
Other careers also have been severely tarnished.

Notable among them: Robert Messemer, the FBI's chief investigator in the Lee case and a specialist in Chinese counterintelligence. Known to colleagues as "Stealth" for his crafty ways, Messemer was intended to be the key government witness against Lee.

Instead, he became the prosecution's weakest link.

During a mid-August bail hearing for Lee, Messemer admitted from the stand that his previous testimony was wrong when he said repeatedly that Lee had lied and sought to hide his actions when he copied the weapon files and created the tapes.

One of Lee's colleagues had told the FBI that Lee had asked for password access to his computer to download some files or data. Messemer interviewed the scientist, Kuok-Mee Ling, at least six times and reviewed transcripts of his other statements. Messemer nonetheless had testified falsely to two judges on three occasions that Lee had lied to Ling by saying that he wanted to download a "resume."

Messemer also acknowledged that, despite his testimony last December and despite a prosecution document filed with the court in June, the FBI had no evidence to show that Lee had applied for jobs at six academic or nuclear institutes overseas. Prosecutors had argued that Lee might have created the tapes to enhance his job prospects.

U.S. District Judge James A. Parker cited Messemer's claims when he denied Lee bail in December.

Messemer's public humiliation was a bombshell. It not only left the government with no hard evidence of a motive for Lee's action, it now had a crucial witness with a severe credibility problem--and a federal judge openly skeptical of prosecution claims.

"You should not have 'oops' in your vocabulary if you're a government witness in an important case or a brain surgeon," said John L. Martin, who prosecuted and won every government espionage case for 26 years until he retired from the Justice Department in 1997.

"One of the biggest problems I had was keeping the shenanigans and skulduggery that go on in investigations from reaching the courtroom," Martin added. "That's the problem here. And the case suffered as a result."

Case Is Called a 'Great Civics Lesson'
Martin called the Lee case a "great civics lesson," especially for the FBI and the Energy Department. With reports of ineptitude and over-reaching, both were badly scarred in the push for prosecution.

"Now they realize that, in order to take one of these cases, they've got to back up in court what they say publicly," Martin said. "They painted this as a devastating case. They alleged terrible things before they indicted him. Then they couldn't back up those sensational allegations."

Among those who had pushed hardest behind the scenes for prosecution of Lee was John J. Kelly, then U.S. attorney in New Mexico, and his Democratic mentor, Energy Secretary Richardson, a former member of Congress from New Mexico. Kelly quit his post to run for Congress three weeks after Lee was indicted.

Kelly defended his actions this week from the courthouse steps in Albuquerque. "I thought it was a good indictment then, and I think events have shown that Dr. Lee has taken material that he should not have," he told reporters. "The government is going to learn in the next week or so where the tapes are. I think that's good."

Richardson had a cautious response. "The issue here is, are we getting the tapes back," he said Monday at a news conference at the Oak Ridge National Laboratory in Tennessee. "I think that is the key. The plea bargain enables us to get that information."

Lee's lawyer Mark Holscher and the chief prosecutor, Assistant U.S. Atty. George Stamboulidis, met to discuss a settlement on Aug. 25, a day after Judge Parker had agreed to let Lee go home on $1-million bond. After hearing Messemer admit inaccurate testimony and defense experts challenge the significance of the missing tapes, Parker ruled that the evidence against Lee no longer had the "requisite clarity" to justify continued incarceration.

Government Gets Hit Again and Again
"What the government described in December 1999 as the 'crown jewels' of the United States nuclear weapons program no longer is so clearly deserving of that label," the judge added. It was a stunning blow to the prosecution.

Parker then walloped the government again.

He unexpectedly ordered federal prosecutors to give him thousands of pages of internal documents from the FBI, CIA, Energy Department, Justice Department and other government agencies by this Friday. Defense lawyers had argued that the documents would show Lee was unfairly targeted for prosecution because he is ethnic Chinese.

"I think they didn't want that scrutiny," one of Lee's lawyers said. The proposed plea arrangement specifically ends that demand for documents.

Some Feared Secrets Would Air in Court
Senior Energy Department officials had another worry: that Parker would order the government to let Lee's lawyers reveal nuclear secrets and other classified information in court as they defended their client.

Other than the FBI statement, few government officials were willing to be quoted amid the debris of the Lee case this week.

An Energy Department spokesman insisted that no one, including himself, was allowed to speak on the record or even to be identified as working for the department. A Justice Department spokesman insisted on similar restrictions.

At Los Alamos, the nation's premier nuclear weapon facility, the news that Lee might go home was greeted with relief by what one official called the "nuclear priesthood."

Collateral damage from the Lee case, after more than a year of public criticism, has devastated the lab: Morale and production have plummeted, recruitment has dropped and attrition of senior scientists and engineers has surged.

Relations with the FBI, which must work with the lab to investigate espionage and nuclear terrorism, have almost ground to a halt.

"I hope that resolving this will allow better public recognition of the major contributions the laboratory makes to scientific progress and national security, instead of continued focus on the misdeeds of a single ex-employee," said John C. Brown, the lab director. He called the last 18 months "probably . . . the most difficult period in Los Alamos history."

There is a final casualty in the Lee case: Carol Covert, the FBI agent who gave Lee the "hostile interview" and demanded that he confess to spying.

The FBI this week refused to let a reporter talk to Covert, but Vrooman, a close friend, said she was so upset after conducting the interview that she took three months' sick leave and transferred out of the Santa Fe office.

"She was distraught," Vrooman said. "She didn't believe Lee was guilty."