Nuke Secrets Deemed Vital to Scientist’s Case

Using a high-stakes legal strategy called “graymail,” lawyers for jailed nuclear engineer Wen Ho Lee are attempting to force the federal government to disclose hundreds of thousands of pages of nuclear weapon secrets in open court--or to drop the charges against him.

John D. Cline, Lee’s lawyer, adopted a similar bare-knuckled tactic when he participated in the successful defense of Oliver L. North, the White House aide at the heart of the Iran-Contra scandal.

Prosecutors dropped three key charges against North in 1989 rather than expose highly sensitive records, though his case ultimately turned on other issues. But a judge dismissed all charges against another Iran-Contra figure, CIA operative Joseph F. Fernandez, after the government refused to reveal CIA secrets to a jury.

Lee’s lawyers hope for the same result. In a little noticed series of federal court filings in Albuquerque, they argue that they need to show jurors “in their entirety” what the Taiwan-born engineer allegedly mishandled--the complete computer records for nearly every U.S. nuclear weapon designed, tested and deployed since World War II.

“It’s called graymailing the government,” said one member of Lee’s legal team. “Basically, we argue we can’t conduct a proper defense unless we have all the files.”

Not surprisingly, the Justice Department says it isn’t willing to reveal what prosecutors have called the “crown jewels” of America’s nuclear weapon secrets. U.S. Atty. Norman C. Bay has told the court that “many portions” of the secret files “need not be disclosed at all or need not be disclosed publicly” to protect national security.

Defense Bolstered by Latest Controversy

Lee’s case was overshadowed this week by another scandal at the Los Alamos National Laboratory in New Mexico: the disappearance in April or early May of two highly classified computer hard drives from a vault in the same nuclear weapon design division where Lee worked.

Lee’s lawyers say the latest case provides proof of their claim that security violations are common at Los Alamos and that Lee has been singled out as a scapegoat.

They also note that several of Lee’s supervisors were among the six Los Alamos managers who were put on paid leave earlier this week, pending results of the investigation. Among them is Stephen M. Younger, head of the nuclear weapon program, who testified against Lee during his bail hearing in December.

Outside experts say the demand by Lee’s defense for vast quantities of classified data--about 400,000 pages in all--is likely to tie the prosecution in knots even if Lee’s lawyers fail to get charges dismissed.

“It is probably one of the most difficult aspects of a national security case,” said John Martin, who supervised federal espionage investigations and trials for 26 years until he retired from the Justice Department in 1997.

“The first time the government goes into court and claims something is a secret and the defense shows it is in the open literature, [prosecutors] are on a very slippery slope,” Martin said, “because the judge will be more skeptical and the jury will look at their assertions with a great deal more caution. It can seriously undermine their credibility and seriously undermine their case.”

A pivotal hearing on the dispute had been scheduled for this week, but it was canceled when Judge John E. Conway unexpectedly removed himself from the case earlier this month to assume a lighter workload. U.S. District Judge James A. Parker, who denied Lee’s release on bail in December, has set the hearing for July 12 and the trial for Nov. 6.

Lee, 60, faces 59 felony charges for allegedly copying thousands of classified computer files at the Los Alamos lab onto an unsecured computer network open to the Internet and onto 10 portable tapes from 1993 to 1997. Seven tapes have not been recovered. His lawyers insist he is innocent.

A Visit to Los Alamos

For now, Lee remains segregated from other prisoners and under other restrictions at the Santa Fe County Detention Center. U.S. marshals escorted him to a heavily guarded room at the lab last Thursday, his first visit since a wildfire closed the facility last month, so he and his lawyers could review the classified evidence on secure computers.

The legal battle focuses on the Classified Information Procedures Act, a 1980 law that sets strict rules and closed-door hearings to settle conflicts over potential disclosure of intelligence and defense secrets in national security trials.

The CIPA gives the trial judge several options once he considers Lee’s request. He may decide that some or all of the secret information is not relevant to the defense, or he could order the government to submit unclassified summaries. The defense almost certainly would object.

“The jury deserves to hear the whole story,” said Thomas E. Wilson, who represented CIA agent Fernandez during Iran-Contra and is the only lawyer to successfully use CIPA to get an entire case dismissed. “If the government really wants to prosecute this guy, they’re going to have to convince the judge either that the [classified] information is not relevant or make substitutions that are sufficiently complete . . . to provide a fair trial.”

But if the judge decides that Lee’s lawyers are entitled to use the classified data to present his defense, Atty. Gen. Janet Reno will have to decide whether to comply or drop the case.

A senior Energy Department official who is familiar with the Los Alamos files calls it “inconceivable” that the government will disclose the material Lee’s lawyers have requested.

“The totality of it all leaves you breathless,” he said. “It’s like a road map. You could look at the files and see exactly why we did this and didn’t do that, why we used this material and not that. It’s not just a blueprint, it’s the complete diary of everything that led to the blueprints. It’s staggering. And irreplaceable.”

‘Not as Valuable as the Government Says’

Lee’s lawyers claim the opposite. The real weapon blueprints, they say, lie in vaults and were not taken. Indeed, they argue in court papers, “virtually all of the information at issue was either available in the open literature or could be readily derived from the open literature.”

They also claim the data related “directly” to Lee’s work at Los Alamos, countering government claims that Lee had no need to take the files. Lee’s lawyers also insist the files have “flaws” and cannot be understood without user manuals that Lee did not obtain.

“Basically, this stuff is not as valuable as the government says it is,” said Nancy Hollander, one of Lee’s lawyers.

Perhaps most important, Lee’s lawyers argue that none of the Los Alamos files were formally classified as secret until after his arrest. Instead, they argue, the files were designated as “protect as restricted data,” which requires far less stringent protection. They claim Lee “protected them adequately in light of their limited significance.”

Lee was not charged with espionage, but his indictment repeatedly accuses him of acting with “intent to secure an advantage to a foreign nation.” Lee’s lawyers asked the court last month to order prosecutors to name the country, noting that government officials have variously suggested that Lee sought to aid China or Taiwan.

“These theories are obviously inconsistent,” Lee’s lawyers wrote. “One could as well allege that a person intended to benefit either Israel or Syria, or during the Cold War either the United States or the Soviet Union.”