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."