Judge Prepares Way for Lee’s Release

Overruling objections by federal prosecutors, a judge set the stage Tuesday for the likely release on bail Friday of Wen Ho Lee, pending trial of the former Los Alamos scientist for allegedly mishandling nuclear weapon secrets.

U.S. District Judge James A. Parker also handed defense lawyers a procedural victory when he ruled that the government must hand over by Sept. 15 a broad array of material that, Lee’s lawyers insist, will show he was targeted for prosecution because he is ethnic Chinese.

Parker will examine the material from the FBI, the Energy Department, the Justice Department and the State Department before deciding whether the defense is entitled to see it. In all, Lee’s lawyers have requested 32 items related to their claim of selective prosecution.

The material does not directly affect the government’s prosecution of Lee but could galvanize Asian American groups and other supporters who have insisted for months that the FBI and Energy Department unfairly targeted Lee as a potential Chinese spy because of his ancestry.

The ruling was released after a hearing Tuesday in which Parker gave government prosecutors until noon Friday to advise whether the U.S. solicitor general has approved plans to appeal his Aug. 24 decision to allow Lee to leave jail on $1-million bond under a strict form of house arrest.

But Parker signaled that he intends to release Lee unless a higher court orders an immediate stay by that time. He refused pleas by Assistant U.S. Atty. George Stamboulidis to further delay implementation of his ruling.

“I think you have to plan to live with it,” Parker said.

Parker also dismissed Stamboulidis’ proposal to place an FBI agent or another law enforcement officer inside Lee’s home once he is released, to monitor all of Lee’s private conversations with his wife, Sylvia.

“I reject that out of hand,” Parker said, provoking laughter in the courtroom.

Although Lee is not charged with espionage, Stamboulidis said the government fears that Lee might use his wife to pass a coded message that would disclose the location of seven highly classified computer tapes that Lee created and which have not been recovered.

“What you are suggesting is that Dr. Lee might subject his wife to an offense that might subject her to the death penalty,” Parker said. Lee’s lawyers contend that Lee destroyed the seven tapes.

Parker agreed, however, to prohibit Mrs. Lee from delivering any messages from her husband except to his lawyers, to two neighbors who will act as court-appointed custodians and to his children. He also agreed to several other modifications of his proposed release order.

Lee, a wiry man of 60 with close-cropped gray hair, sat impassively by his lawyers during most of the hourlong hearing. But he smiled broadly and waved at family members and friends in the courtroom before marshals escorted him out.

“We look forward to Dr. Lee joining his family this Friday,” Lee’s lawyer Mark Holscher told reporters after the hearing.

Lee’s daughter, Alberta, said that her father’s incarceration since December has been “an injustice.” She said she was shocked by the government proposal to place an FBI agent inside her parents’ home.

Parker gave prosecutors until Thursday to search Lee’s home and remove computers, cellular telephones and “all other electronic means of communication,” other than two telephones that will be monitored, along with mail and other deliveries. Lee will be prohibited from leaving his home or backyard garden except for court appearances, meetings with his lawyers or emergencies.

Among the material Parker ordered the government to turn over to the court is an Energy Department videotape on counterintelligence that was used until last year, all interviews and other material used to produce a report in January by an Energy Department Task Force on Racial Profiling and a classified report by the State Department from last September. The nature of the report was not identified.

Parker also ordered the government to deliver all Energy Department and Justice Department records of statements by Notra Trulock, a former counterintelligence official at the Energy Department, that discuss whether the initial investigation should focus on ethnic Chinese; a list of other potential suspects at Los Alamos National Laboratory that was compiled by Trulock’s investigators; and four FBI investigative reports from 1998 and 1999 that relate to other individuals with access to secret warhead data.

Parker also ordered the government to provide him with full, classified transcripts of any testimony by Atty. Gen. Janet Reno and any other FBI, Justice and Energy Department officials before any congressional committee that concern Lee and the investigation of his case.

Lee, who was born in Taiwan but joined the top-secret weapon design division at Los Alamos after he became a U.S. citizen, faces 59 felony charges for allegedly downloading decades of weapon secrets onto an unsecured computer network at Los Alamos and onto portable tapes. Seven of the tapes are unaccounted for.

If convicted, Lee could face life in prison. His trial is scheduled to begin Nov. 6.

The prosecution has suffered a series of setbacks in recent weeks. On Aug. 17, the FBI’s lead agent, Robert Messemer, admitted in court that he had erred when he testified in December that Lee lied to a colleague when he downloaded the files. Messemer also retracted several other aspects of his testimony.

That as well as other new evidence from the defense helped convince Parker to reverse his previous denial of bail for Lee. The case “no longer has the requisite clarity and persuasive character” necessary to keep him in jail, Parker ruled.

The case faces another crossroads on Sept. 19. Parker will conduct a closed-door hearing then on whether he will allow Lee’s lawyers to use highly classified evidence about nuclear weapons in open court. The defense insists that they need the material if Lee is to receive a fair trial.

The prosecution has asked the judge instead to order the use of unclassified summaries and other substitutions of sensitive data.

If the judge sides with the defense, the government will face the dilemma of whether to allow public release of those secrets--or to drop the charges altogether.