Judge to Free Scientist Lee on $1-Million Bail

A federal judge in New Mexico on Thursday ordered the release of indicted nuclear scientist Wen Ho Lee on $1-million bail next week, a sign that the judge no longer accepts government claims that Lee’s release poses a grave threat to national security.

The 60-year-old Lee, who was fired from his position at the top-secret nuclear weapon design division of the Los Alamos National Laboratory, is to be set free after a hearing Tuesday before U.S. District Judge James A. Parker in Albuquerque.

After spending the last eight months in jail, where he has been barred from receiving visitors and telephone calls in his tiny cell, Lee is to be allowed to return to his home in White Rock, N.M. He will remain under strict house arrest as he prepares for trial in November.

The federal government alleges that Lee misappropriated decades’ worth of highly classified U.S. nuclear secrets to aid an unidentified foreign government.

Government investigators initially believed that Lee, a native of Taiwan, was planning to provide the government of China with data detailing the design of America’s most sophisticated nuclear weapons. Lee’s defenders say he was unfairly singled out because of his ethnicity.

Judge Parker, in granting bail, did not specifically address the merits of the charges against Lee. But he reached his decision even before reviewing all of the material supplied during a three-day pretrial hearing last week.

“Enough of the transcript of the most recent hearing has been prepared and reviewed by me to permit the announcement of a ruling at this time . . . ,” Parker said.

“I conclude that there now is a combination of conditions that will reasonably assure the appearance of Dr. Lee as required and the safety of the community and the nation.”

It was not immediately clear whether prosecutors would continue to fight Lee’s release. “We’ll review the court’s order and respond in court,” said Justice Department spokeswoman Gina Talamona in Washington.

Los Angeles lawyer Mark Holscher, one of Lee’s lead attorneys, said Lee’s legal team and his supporters “are gratified by the judge’s ruling. Dr. Lee and his family appreciate the esteemed nuclear scientists and other members of the community who supported his bail application. We will do everything we can now to make sure Dr. Lee is never put in custody again.”

Holscher and Deputy U.S. Atty. George Stambolitis are scheduled to meet today with a federal judge in Albuquerque to start a court-arranged mediation to consider whether Lee might plead guilty to a lesser charge.

Lee’s lawyers told the government last month that he might be willing to plead guilty to a charge such as mishandling documents but that he would not plead guilty to any charge in his indictment. They insisted he should spend no more time in jail.

Federal prosecutors, however, are determined to recover seven computer tapes containing highly classified data, or at least to learn what Lee did with them. Lee’s lawyers have said that he destroyed the tapes but never said when, where or how. Lee kept detailed notes when he made the tapes, sources have said, but investigators never found any clues in the notes about what he did with them.

“I’m sky-high,” said Alberta Lee, Lee’s 26-year-old daughter and a champion of his cause since his arrest in December. “I’m really thrilled. I’m delighted my father can finally go home and cook his own food, work in his garden and sleep in his own bed.”

At the hearing Tuesday, the judge will discuss a series of tight restrictions that he intends to impose on Lee’s release and house arrest, much of which was outlined in a draft order the judge released Thursday.

The draft makes clear that, while Lee will be let out of jail, his activities and conversations--indeed, his every move--will be closely watched.

For instance, Parker’s draft said Lee’s neighbors, Don and Jean Marshall, will serve as “third-party custodians” and will be permitted to enter the Lee home at any time to check on his behavior. The Marshalls had offered to assist the court in Lee’s previous bail hearing in December.

In addition, Lee will have some form of “electronic monitoring” by the federal pretrial service agency. .

He will be allowed to leave home only to travel to the federal courthouse in Albuquerque or the Los Alamos lab “to work on the preparation of [his] defense in designated secure areas at those places,” the draft said.

Whenever he is away, he will have to be in the company of one of his lawyers. The only other reason he would be allowed to leave would be “for emergency medical treatment, should that become necessary.”

His wife, Sylvia Lee, will be the only person permitted to live in the house with him. His children may visit during the daytime with federal law enforcement agents present.

Before Lee is released, law enforcement officials are to search his home. All telephone calls from the home will be monitored and, the judge’s draft said, authorities “may immediately electronically block any communications that appear to involve the missing information that Dr. Lee downloaded onto tapes or other sensitive scientific information.”

His mail will be inspected by law enforcement, and Lee himself must report twice a day to the pretrial agency--once in the morning and once at night. No computers or cellular phones will be permitted in his home.

Although his bail is to be set at $1 million, his supporters had offered to raise the security for a bail as high as $2 million.

The $1-million amount is to be secured through the assets and property of Lee and his wife, his children and the Marshalls.

The decision to grant bail came after an extraordinary hearing in Albuquerque last week.

The government was hoping to keep Lee segregated inside the Santa Fe County Detention Center pending trial on nearly five dozen criminal charges.

Lee is accused of downloading weapon testing, development and design data onto an unsecured computer network and portable computer tapes.

The government has described its case against Lee as detailing one of the worst episodes of classified data theft in U.S. history and warned that fallout from Lee’s alleged actions could ultimately alter the “global strategic balance.”

But Lee’s defense attorneys poked holes in the government’s characterization of their client.

At one point in the three-day hearing, an FBI agent conceded from the witness stand that he “inadvertently” misled the judge several times about Lee during a December hearing in which Lee was ordered held without bail.

“At no time did I intentionally provide false testimony,” agent Robert Messemer told the judge last week. But, he added, “I made a simple, inadvertent error.”

The FBI agent had testified that Lee lied to a colleague by asking for password access to his computer to download a resume. The colleague, however, told the FBI that Lee had asked to download data files. Lee’s lawyers argued in court that Messemer also misrepresented other facts in his testimony.

Defense lawyers also called to the stand John Richter, a former senior weapon designer and intelligence official at Los Alamos. Richter testified that about 99% of the material Lee allegedly copied was already available in the public domain and would be of no use to a hostile country.

Asked if American national security would be at risk if the data fell into the wrong hands, Richter responded: “I don’t think that it would have any deleterious effect at all.”