Defense Shows Holes in Case Against Scientist

Eight months ago, federal prosecutors convinced a judge in New Mexico that Wen Ho Lee was such a clear threat to national security that the 60-year-old nuclear weapons scientist should be jailed without bail under harsh conditions.

This week, the same judge heard defense lawyers argue that crucial parts of the government evidence against Lee were false, misleading or at least open to debate and that he should be released until his trial in November.

U.S. District Judge James A. Parker has yet to rule and much of the three-day bail hearing in Albuquerque this week took place behind closed doors because the evidence is highly classified.

But it is increasingly clear that the government’s 59-count case against Lee is much weaker than it initially appeared.

Lee, a veteran of the top-secret weapon design division at the Los Alamos National Laboratory, was arrested in December for allegedly misappropriating nuclear weapon secrets by downloading decades worth of weapons testing, development and design data onto an unsecure lab computer network and portable computer tapes. He sees no visitors and gets no telephone calls in his tiny cell. If convicted, he could face life in prison.

During Lee’s first three-day bail hearing in December, government witnesses repeatedly described the data Lee allegedly copied as the “crown jewels” of America’s nuclear weapons secrets. One witness warned ominously that if Lee’s computer tapes fell into hostile hands, they could change the “global strategic balance.”

Lee’s lawyers, then new to the case and the complex arcana of nuclear weapon designs, appeared overwhelmed and did little to refute the government’s apocalyptic claims.

This week, however, they called John Richter, a former senior weapons designer and intelligence official at Los Alamos, to testify. He told Parker that perhaps 99% of the information Lee allegedly copied already is available in open literature and that it would not be useful to a foreign country.

Richter flatly denied that the material “represents a complete nuclear design capability,” as government witnesses previously had claimed. And, asked whether national security would be at risk if a hostile power obtained the data, Richter replied: “I don’t think that it would have any deleterious effect at all.”

Lee’s lawyers submitted affidavits before the hearing from two other senior Los Alamos officials that raised similar questions. Harold M. Agnew, a former director of the lab, and Walter Goad, a Los Alamos weapons expert, both said that the downloaded information was publicly available in various forms and that the government’s presentation in December was hyperbole meant to intimidate Parker.

Lee’s lawyers scored another point this week when they got a crucial government witness, FBI lead investigator Robert Messemer, to concede that he “inadvertently” misled Parker during the December hearing. Parker repeatedly cited Messemer’s testimony in his ruling denying Lee bail.

Messemer testified at the time that Lee had lied to a colleague by asking for password access to his computer to download a resume. But the scientist, Kuok-Mee Ling, repeatedly told the FBI that Lee had asked to download data files, not a resume, Messemer conceded this week.

“At no time did I intentionally provide false testimony,” Messemer said, apologizing to the judge. “I made a simple, inadvertent error.”

But Lee’s lawyers argued that Messemer misrepresented facts two other times during his testimony. Although Messemer had said that Lee had not disclosed a meeting with Chinese scientists during a lab-approved visit to Beijing in 1986, Lee’s lawyers produced a document showing that Lee had reported the meeting after his return to Los Alamos.

Messemer said he had not read the report before he testified. He also acknowledged that the FBI had not questioned Lee about the contacts at the time.

Messemer also testified last year that the FBI had found letters during a search of Lee’s home indicating that he had applied for jobs at six overseas institutes. Prosecutors recently asserted that Lee may have copied the weapons secrets in an attempt to enhance his job prospects.

But Messemer said Thursday that the FBI had no evidence that the letters were ever mailed and that none of the institutes contacted by the FBI had a record of receiving them.

On Friday, Messemer also said that Lee passed a 1999 polygraph exam administered by the Wackenhut Corp. security company, according to the Associated Press. The firm works under contract with the Energy Department, which owns the weapon laboratories.

Lee’s record on polygraph tests has been in dispute since he was fired from Los Alamos in March 1999 for security violations. After Lee was fired, Energy Secretary Bill Richardson told reporters that Lee had failed a polygraph test.

But Messemer insisted that Wackenhut did not follow protocols accepted by the FBI. He said the FBI did not agree with Wackenhut’s conclusions, even though they were checked by an independent polygrapher and a supervisor.

Under questioning by defense lawyer Mark Holscher, Messemer said he was aware that Lee had scored among the highest possible scores for credibility on the test when Lee denied passing secrets, denied contacting anyone for the purpose of espionage and denied intending to harm the United States.

Messemer also testified that during an FBI interrogation on March 7, 1999, agents warned Lee that he might be given the death penalty for stealing nuclear secrets. They repeatedly compared his case to executed Soviet spies Julius and Ethel Rosenberg.

Until that interview, Messemer said, Lee had voluntarily submitted to 20 meetings with FBI agents without a lawyer. He has since declined to meet with the FBI.

The Lee case has been a conundrum for the government from the beginning. He was targeted by the FBI as a possible Chinese spy during a three-year investigation but no evidence of espionage ever was uncovered.

The current hearing is Lee’s third bid for bail. A magistrate initially denied it, Parker then formally refused it and an appeals court affirmed his decision. Lee’s lawyers told the judge that Lee’s family and friends, led by his daughter’s former fifth-grade teacher as well as numerous scientists, are prepared to offer a $2-million property bond to obtain Lee’s release. More than a dozen homes and businesses would be forfeited to the federal government if Lee jumped bail, they said.

Lee also has drawn support from a growing number of scientific, academic, civil rights and Asian American groups. More than 1,400 scientists have signed a petition, for example, protesting the “cruel and degrading” treatment that Lee has faced since he was jailed.

The petition was circulated by the New York Academy of Sciences, the Committee of Concerned Scientists, the American Assn. for the Advancement of Science and the American Physical Society.