Legal Team Defends Acts of Weapon Scientist

Attorneys for Wen Ho Lee have made a spirited last-ditch effort to head off indictment of the fired nuclear weapon scientist, arguing in a confidential report to the Department of Justice and in recent private meetings with prosecutors that Lee “used considerable care” to protect the security of secret nuclear codes when he transferred data to an unclassified computer system.

The transfers were made for “a good reason,” the attorneys asserted, explaining that it was easier to work with the data outside the classified system and because the extra file provided a backup in case the computers crashed.

The attorneys called Lee a victim of political hysteria and “a scapegoat for the scandalous lack of security” at the national weapon laboratories, which are run by the Department of Energy.

The voluminous legal brief, a copy of which was reviewed by The Times, gives the first detailed glimpse of Lee’s anticipated defense. It also provides the first explanations of conduct that prompted Lee’s dismissal from Los Alamos National Laboratory in New Mexico and raised suspicions about whether he might be behind feared leaks of nuclear secrets to China.

Lee became a target of investigation in 1996 after federal authorities learned that China may have acquired secret design information about the W-88 nuclear warhead. Lee’s work on that project and his travels to China made him an early suspect for possible leaks.

Though long denying that Lee passed secrets to Chinese agents or anyone else, defense attorneys had not previously responded publicly to questions about why Lee transferred top-secret codes from a highly restricted, classified computer system to another office computer linked to a local area network that was more widely accessible.

Nor had they explained why Lee copied data from his classified computer onto less secure tapes.

But in a 7-inch stack of legal arguments and supporting documents, the attorneys provided at least partial answers to those questions. The brief is a response to the most likely accusation that could be brought against Lee: that he mishandled classified information.

The brief was submitted to the Justice Department, where criminal section supervisors will decide whether to bring charges against Lee. That question has sparked sharp internal debate at Justice, federal officials have acknowledged.

Attempting to seize upon that internal conflict, defense attorneys led by Los Angeles lawyer Mark Holscher were in Washington last week arguing that the case against their client is weak, unfair and unprecedented.

Holscher refused to comment on his discussions with Justice officials or on contents of the defense team’s legal brief, except to say: “No American scientist has ever been charged with a crime for putting classified files on the so-called wrong office computer system.”

According to the brief, Lee took care to safeguard data in his unclassified computer system by adding an extra level of password authority. An outsider would have had to break three password codes and then correctly guess the file name to gain access to any file. It was protection, Lee’s lawyers argued, equivalent to “a triple-bolted safe.”

The defense also contends that any prosecution of Lee would be the result of “xenophobia and political agendas” selectively targeting the Taiwan-born Lee because of his Chinese heritage.

A source close to the case said that federal prosecutors responded to the defense presentation by asking Holscher to provide additional written arguments, thereby delaying a final decision on the Lee indictment “for at least a week or two.”

Meanwhile, Lee’s defense is expected to get further airing this weekend when the physicist makes his first public statements in an interview scheduled for broadcast tonight on the CBS television program “60 Minutes.”

Government and other sources familiar with the federal investigation said that support for a Lee indictment comes from the FBI, the Energy Department and New Mexico prosecutors but that it has encountered resistance at Justice headquarters--notably because investigators have found no evidence linking Lee to any lost nuclear secrets.

One senior administration official predicted that Lee will be charged with mishandling classified material and not with spying, a likelihood also reflected in the defense brief. Much of the document is devoted to arguments about whether his mishandling of the material constituted criminal negligence.

“The statute was never intended to apply in a situation such as this, where Dr. Lee placed classified files on a laboratory computer that required three separate passwords to access them,” the brief argued.

The brief says one reason Lee used the unclassified system was because of an incident in 1994 when a lab computer conversion project inadvertently erased “lines of code [Lee had] spent years developing.” Concern that the classified computer system could crash and wipe out other work made the transfer seem “a reasonable precaution” to Lee.

Defense lawyers also contend that no American civilian has ever been criminally prosecuted for mishandling classified information, especially in the absence of evidence that it resulted in loss of that material. In fact, the absence of demonstrable damage linked to Lee continues to be a point of contention among Justice officials assessing the case, according to government sources.

Federal investigators recently did find evidence of “third-party access” to Lee’s unclassified computer system when Los Alamos computer records showed tracks of multiple hits of extended duration on the site from remote users.

However, Lee’s two adult children--both of whom previously worked at the lab in temporary jobs--told a federal grand jury that they had used their father’s sign-on code to gain access to the Internet via the Los Alamos local area network.

“The kids never got close to the old man’s files. Neither did anyone else,” according to a source familiar with their testimony.

In the testimony, first disclosed by Newsweek magazine, Lee’s son and daughter said that they used the Los Alamos network as a gateway to the Internet to play computer games and exchange e-mail.

Defense lawyers concede that Lee failed to adhere strictly to rules for handling classified information. However, they repeatedly asserted that no classified data were compromised.

The downloaded tapes, they said, were kept in a locked safe in Lee’s office in the ultra-secure X Division of the lab.

“Clearly, any allegation that Dr. Lee left classified information grossly vulnerable is untrue,” the brief says.

It also cites a number of other potentially egregious cases of mishandled classified material that did not result in criminal charges, including the example of former CIA Director John M. Deutch, who kept classified information on an unsecured home computer. Deutch was sharply criticized after an internal review but not prosecuted.

Also listed was an incident in which former Iran-Contra special prosecutor Lawrence E. Walsh lost classified documents he had packed in luggage that disappeared after he checked it at Los Angeles International Airport. A recently disclosed security lapse at the CIA was also cited in which 25 laptop computers were decommissioned and sold at auction--without erasing top-secret information still on their hard drives.

In another case much like Lee’s, defense lawyers said that a Los Alamos scientist downloaded from a classified computer to an unclassified system material from the lab’s “green book,” a secret assessment of the status, maintenance needs and vulnerabilities of some of the nation’s most sophisticated weapons.

“The scientist was fined and suspended but kept his job and was not criminally prosecuted,” the brief says.

“Given the numerous individuals who have mishandled classified information but have not been prosecuted, the discriminatory effect of charging Dr. Lee is clear,” it says.

Defense attorneys are particularly critical of allegations suggesting that Lee was a spy. In the brief, they mock FBI agents who saw “traitorous intent” when Lee reportedly “hugged a visiting Chinese scientist and later spoke in the Mandarin dialect to another visitor.” They said that Lee’s meetings in China had been approved by the Energy Department.

Since federal investigators apparently have conceded that they have no espionage case, the defense brief deals with the possibility of spy charges only long enough to flatly deny such allegations.

“Dr. Lee has devoted thousands of hours to writing . . . incredibly complex computer source code that has been essential to our national defense,” the brief argues.

“Dr. Lee’s contributions have been instrumental in allowing our atomic scientists to design the most advanced nuclear weapons in the world. Dr. Lee is a loyal American who performed this extraordinary work in relative anonymity.”

Times staff writer Bob Drogin in Washington contributed to this story.