Scientist Is Accused of Mishandling Secret Data

Former Los Alamos nuclear weapon scientist Wen Ho Lee, the target of a three-year FBI investigation into alleged Chinese spying, was arrested Friday after he was indicted on 59 charges of mishandling highly classified national defense information.

The federal grand jury in Albuquerque that returned the 45-page indictment did not charge the Taiwan-born engineer with espionage. Officials said that they were unable to find credible evidence that Lee was a spy who provided nuclear weapon secrets to Beijing or anyone else.

The strongly worded indictment marks a dramatic shift in a national security scandal that dominated front pages and much of Capitol Hill earlier this year. But it does not resolve the core question of how China apparently obtained U.S. nuclear weapon secrets, including classified details from America’s newest and most sophisticated thermonuclear warhead.

Lee was accused of violating the Atomic Energy Act and the Federal Espionage Act by secretly moving vast quantities of classified nuclear weapon data from a secure computer at Los Alamos National Laboratory onto an “open” computer system. He also was charged with downloading most of the data, including current nuclear weapon design codes, onto 10 portable computer tapes. Seven of the tapes cannot be found, the indictment charges. If convicted, Lee could be sentenced to life in prison.

“This case is being prosecuted because Wen Ho Lee has denied the United States its exclusive dominion and control over some of this nation’s most sensitive nuclear secrets,” John J. Kelly, the U.S. attorney in New Mexico, said in Albuquerque.

“Although Lee has not been charged with communicating classified information to a foreign power, the mishandling of classified information alleged in the indictment has, in the government’s view, resulted in serious damage to important national interests,” Kelly said.

“The indictment does not allege that Lee passed classified information to any particular foreign government, including the People’s Republic of China,” he added.

The FBI immediately arrested Lee, 59, at his ranch home in White Rock, N.M., a leafy suburb of Los Alamos north of Albuquerque. He was ordered jailed for the weekend after U.S. prosecutors, raising the possibility that Lee might be a flight risk, requested a delay until Monday for a hearing to determine if he should be released on bail.

‘He’s in Shock,’ Lee’s Lawyer Says

Lee’s lawyer, Mark Holscher, said that Lee brought a bag with his clothes and pajamas to jail. “He’s in shock,” Holscher said in a telephone interview from Albuquerque. “He has no idea what people do in prison.”

If convicted of violating any count of the Atomic Energy Act, he faces a maximum penalty of life in prison and a $250,000 fine. Conviction under the Federal Espionage Act carries a maximum penalty of 10 years in prison and a $250,000 fine.

Legal experts said that the government may be hoping that the threat of multiple life sentences will persuade Lee to seek a plea bargain. The government could thus avoid having to release sensitive nuclear weapon information in open court.

In a faxed statement, Holscher said that he was “severely disappointed” with the decision to prosecute. “We look forward to proving Dr. Lee’s innocence and his being exonerated of all charges that are being brought against him.”

Holscher complained that the government was “blatantly overreaching and wholly unjustified” in suggesting that Lee might flee. He said that Lee had surrendered his passport voluntarily and had notified the FBI of any travel after he was publicly identified as a potential spy nine months ago.

Holscher also said he was disappointed that prosecutors did not respond to his offer, made in a letter delivered to Kelly’s office four hours before the indictment was handed down Friday, to let Lee take a polygraph to examine his claims that he did not mishandle the computer tapes or give them to anyone.

Lee Was Fired After Failing 2 Polygraphs

Lee was fired from Los Alamos National Laboratory for security violations last March, shortly after he failed two polygraphs seeking to determine if he had provided classified information to China. He already had been the target of a long-running FBI investigation into Chinese espionage.

Lee’s alleged misuse of classified computer files only came to light after his dismissal, however. David Kitchen, the FBI special agent in charge of the Albuquerque office, said that the inquiry “illustrates our ability to investigate effectively in the cyber-arena.”

Kitchen said that investigators conducted more than 1,000 interviews, searched more than 1 million computer files and examined staggering amounts of computer data.

John L. Martin, former head of the Justice Department’s espionage investigation unit, said he believes that “this is going to be a very difficult case for the government to bring.”

“You have to have a story to tell a jury,” Martin said. Without any broader allegations of what Lee was trying to do with the information, he said, it will be difficult for prosecutors to sway a jury.

Another former federal prosecutor, who asked not to be identified, said that the sheer number of counts in the indictment smacks of overkill. “The thicker the indictment, the thinner the evidence,” he said.

U.S. Atty. Gen. Janet Reno personally authorized Lee’s indictment earlier this week after an unusual meeting about the case at the White House last Saturday with Energy Secretary Bill Richardson, FBI Director Louis J. Freeh, CIA Director George J. Tenet and Samuel R. “Sandy” Berger, the president’s national security advisor. Richardson advised that he was prepared to declassify documents so prosecutors could use them in open court.

Richardson said Friday that Reno “made the right decision” in approving the prosecution.

The indictment alleges that in 1993 and 1994, Lee created 19 huge computer files, called tape archive files, containing secret and confidential data relating to atomic weapon research, design, construction and testing. He then allegedly moved the files from the secure, classified computer system at Los Alamos onto the lab’s unsecure, open computer network.

In addition, Lee is accused of downloading 17 of the 19 classified archive files onto nine portable computer tapes. The indictment also alleges that in 1997, Lee downloaded directly from the classified system to a 10th portable computer tape “current nuclear weapons design codes, auxiliary libraries and utility codes necessary to compare computer generated, calculated results with actual test data.” Seven of those tapes are now missing.

Among the data that Lee is alleged to have illegally collected and removed are files relating to the physical and radioactive properties of materials in U.S. nuclear weapons, the exact dimensions and geometry of the nuclear weapons and computer instructions to set up a simulated nuclear detonation.

He also is alleged to have mishandled files containing source codes used to determine the validity of nuclear weapons designs, computer archives containing data from actual tests of nuclear weapons, data concerning bomb test problems and calculations and computer programs necessary to run the design and testing files.

Lee, who is a naturalized American, worked 18 years in Los Alamos’ super-secret X Division. The section is responsible for the research, design and development of America’s thermonuclear weapons arsenal.

No Explanation Given on Missing Tapes

In a statement last spring, Lee acknowledged downloading the so-called Legacy codes, which provide a history of nuclear weapon development, but said that he did so to protect them in case the main computer crashed and the data were lost. Los Alamos officials, and many of his fellow scientists, have scoffed at that explanation.

Lee has never publicly explained why he also made portable computer tapes or what happened to those that are missing.

The case caused a public and political uproar last spring when news reports first alleged that a Chinese spy at Los Alamos had given China design information on the W-88 warhead, America’s most advanced. The concern mounted when a House investigative report concluded that China had nuclear design information “on a par” with the United States.

But a review by the nation’s intelligence community raised doubts about how far China had advanced in its nuclear weapon programs or how much espionage had helped it. Separate investigations by a Senate committee and President Clinton’s foreign intelligence advisory board then criticized the FBI and the Justice Department for focusing too narrowly on Lee. They said that information about the W-88 could have come from many other places.

In September, Reno ordered the FBI to broaden the investigation to other Energy Department laboratories, U.S. Navy facilities and key defense contractors. No other suspects have been publicly identified, however.