Los Alamos Suspect Lee Gets Jail Pass to Prepare Defense

Former nuclear weapon scientist Wen Ho Lee still is not allowed visitors, telephone calls or much else in his tiny New Mexico jail cell, but he has something few other high-profile prisoners can boast: a top-secret security clearance and a daily pass out of stir.

The government has quietly restored Lee’s top-level “Q” clearance and permitted him to visit the Los Alamos National Laboratory under armed guard Friday so he could examine top-secret weapon designs and other highly classified evidence that will be used in his trial for allegedly mishandling America’s nuclear secrets.

Lee, who will return to Los Alamos next week, used a special “read only” computer with his lawyers to review the classified files during his four-hour visit to his former workplace. U.S. marshals watched from the hallway by video monitor.

“They take off his handcuffs and the belly wrap--the big chain that goes around the middle,” Nancy Hollander, one of Lee’s lawyers, said Wednesday from Albuquerque. “But the leg shackles stay on.”

The shackled scientist also is meeting his lawyers every day this week in a secure room on the third floor at the U.S. Courthouse in Albuquerque. The defense team began the courthouse sessions after receiving a dozen large boxes of classified documents and other evidence from prosecutors Friday.

Lee’s unexpected movements from the Santa Fe jail, his first

since he was arrested and denied bail in December, come as his lawyers have stepped up their efforts to challenge what they contend is a badly flawed FBI investigation and an unfair government prosecution.

Lee’s lawyers asked a federal judge in Albuquerque last week to throw out any evidence the FBI seized during its search of Lee’s suburban home and garage on April 10 of last year, arguing that the search warrant was overly broad and thus invalid.

Among the scores of items the FBI seized in the raid, according to FBI records unsealed last week by the court, were Lee’s telephone books, notebooks and computer printouts and disks.

But agents also took a book of short stories by Guy de Maupassant, another book of four plays by Tennessee Williams, telephone numbers for a Christian church group and the membership directory of the Los Alamos Chinese Cultural Society. They also carted off a map of China, Lee family photo albums, Lee’s 1966 doctoral thesis, letters that he wrote from 1971 to 1973, his adult children’s old school notebooks and diaries, and hundreds of pages of computer printouts from 1977.

An official familiar with counterintelligence said that the FBI may have taken some of the more unusual items, such as the Tennessee Williams plays, to check if Lee was using a covert code for communication. None apparently was found.

Lee’s lawyers argued that the search warrant failed to specify any of the items the agents planned to take or to explain how they might relate to an alleged crime.

“We strongly believe the search was an illegal general search and nearly identical warrants have been rejected by the 10th Circuit” Court of Appeals, Mark Holscher, Lee’s lead attorney, said in a telephone interview from Los Angeles.

A federal judge will hear the motion June 7 and could suppress some of the evidence that the government has cited in its indictment. History suggests that is unlikely, since experts say that no search warrant has been rejected in an espionage-related case in at least 25 years.

Lee’s lawyers also argue that the Department of Energy improperly raised the security classification on the nuclear weapon data cited in the indictment long after Lee had copied it onto an insecure computer system and onto portable tapes at Los Alamos.

At the time, they said, the computer files and programs were designated as PARD, or “protect as restricted data.” Officials said that the PARD category is applied to scientific data so voluminous and under such constant revision that rules for the handling of high-security documents are temporarily waived.

Justice and Energy department officials denied Wednesday that they had reclassified the massive trove as secret or confidential after they found Lee had copied it.

“The things we’ve alleged he took--the source codes, the bomb designs, all the programs--they were all secret restricted data at the time he took them,” said one official who is closely involved in the case. “Lee reclassified them by moving them onto the unclassified system.”

But a former senior Justice Department official who has followed the case closely said that the issue will provide strong ammunition for Lee’s lawyers when they argue the case before a jury in November.

“I’ve never experienced a situation where material was classified after it was allegedly compromised in some way, and I know of no case where it was done,” the former official said. The prosecution, he added, “has significant problems all the way through this case.”

Lee, 60, worked for 20 years in the weapon design division at Los Alamos in New Mexico before he was fired in March 1999 for security violations. He was indicted in December on 59 unrelated charges of illegally copying classified programs and data onto unsecured computers and high-volume tapes. Prosecutors say that seven of the high-volume tapes are missing and that Lee thus put national security at risk. Lee’s lawyers insist that he destroyed the tapes but committed no crime.

If convicted, Lee could spend the rest of his life in prison.

The FBI first investigated the Taiwan-born scientist as a possible spy for China. Although Lee ultimately was not charged with spying, the FBI revealed some of its evidence in an affidavit that was unsealed by the court in Albuquerque last week. The affidavit originally was filed last year in support of the search warrant.

According to the affidavit, Lee admitted during an FBI interview at his home in January 1999 that, during a lab-approved visit to attend a conference in Beijing in 1988, he helped two Chinese nuclear weapon scientists solve math equations that are used in U.S. nuclear weapon design programs.