Scientist to Accept Plea Deal; Likely to Be Freed Today

Former Los Alamos scientist Wen Ho Lee, who has been jailed for nine months for allegedly stealing a vast trove of nuclear weapons secrets, is expected to be freed today after pleading guilty to one felony and pledging to cooperate with government investigators, defense and prosecution lawyers said Sunday.

In what appeared to be a stunning surrender by federal prosecutors, Lee will be released from jail this afternoon and allowed to go home unhindered if the proposed plea agreement is accepted by U.S. District Court Judge James A. Parker in Albuquerque. Parker’s assent is considered likely.

“We are thrilled at the prospect that Dr. Lee might be freed unconditionally and be reunited with his family,” said Lee’s lawyer, Mark Holscher, of the Los Angeles firm of O’Melveny & Myers.

Asked Lee’s reaction, Holscher said Sunday, “He’s thrilled. Lawyers argue about the terms and details. He just knows he’s getting out.”

The deal, which calls for Lee to plead guilty to unlawful retention of national defense information, was negotiated in secret sessions encouraged by Parker over the last several weeks and was approved by Atty. Gen. Janet Reno and FBI Director Louis J. Freeh.

The plea agreement thus brings to an astonishing close a highly troubling case that has roiled the national security and scientific communities, as well as Asian American and civil rights organizations.

The FBI initially investigated the Taiwan-born Lee as a potential Chinese spy, and reports that Lee gave Beijing design details to America’s most sophisticated nuclear warhead sparked more than a dozen congressional hearings last year. The FBI later admitted that it found no evidence linking Lee to espionage.

But Lee, now 60, was indicted in December for allegedly stealing what prosecutors called the “crown jewels” of America’s nuclear weapons secrets, supposedly with the intent to harm the United States and to aid a foreign power.

A successful prosecution appeared increasingly unlikely, however, after a series of recent setbacks in court.

Chief among them: the FBI’s top investigator in the case, Robert Messemer, admitted last month that he repeatedly had provided inaccurate testimony against Lee in previous hearings. Other evidence, including whether the missing data was really the “crown jewels,” also came into question.

Under the proposed agreement, prosecutors will dismiss all but one of the 59 charges against Lee with prejudice, meaning they can’t be filed again. His sentence will be reduced to time served in a single cell in the Santa Fe County detention center, where he has been held since his arrest Dec. 10.

“No probation, no fine, no custody, no nothing,” a lawyer familiar with the agreement said. “He’s going to walk out from under life sentences as a free man.”

Lee will plead guilty to count No. 57 in the original indictment. He will admit to downloading nuclear weapons secrets from a classified computer system onto an “open” computer network in the “T Division” at the Los Alamos National Laboratory, and then copying the classified data onto a high-intensity portable tape in knowing violation of U.S. law.

According to the original indictment, Lee downloaded and copied massive computer files, equal to 400,000 printed pages, containing decades of data from the design, development and testing of America’s nuclear weapons. Lee pleaded not guilty, but in his only interview, he indicated that he had copied the material for his work.

FBI agents testified that Lee spent as much as 70 hours copying the files, sometimes working after midnight and on weekends. Fellow scientists at Los Alamos insisted that Lee had no legitimate reason to take the files, but many were horrified by his continued incarceration. One recently greeted a visiting FBI agent with a Nazi salute.

No Admission of Intent to Harm U.S.

Under the deal, Lee will not admit that he acted with intent to harm the United States or to aid a foreign power. Some 39 of the original 59 charges alleged such intent, and each carried a potential life sentence.

“He is not saying he had any belief they could be used to harm the United States,” a lawyer familiar with the proposed deal said. “It’s face-saving for the government, because he pleads guilty to one of the felony counts. But it’s not what they were trying to prove.”

Lee also will agree to provide sworn debriefings to government investigators, to undergo lie detector tests if necessary, and to answer questions for as long as six months about his actions.

Lee also will drop his lawsuit claiming selective prosecution. Lee’s lawyers, and many of his supporters, said he was unfairly singled out for prosecution because he is ethnic Chinese. Parker recently ruled that the government must turn over thousands of pages of internal documents so he could decide whether Lee was unfairly targeted. The plea arrangement specifically ends that obligation, however.

Most important, Lee will be obligated for the first time to explain exactly what he did with seven high-density computer tapes containing nuclear weapons data that he created in 1993, 1994 and 1997.

Fate of Computer Tapes Is Sought

A senior law enforcement official involved with the case said the deal provided a satisfactory outcome to both sides.

“We think it’s a favorable one that will finally give us our best chance to find out what happened to the tapes,” the official said. “That has always been our goal. . . . Learning what happened to the tapes is more important than putting someone in jail.”

But the law enforcement official indicated Sunday that the government now accepts Lee’s claim, made through his lawyers, that he destroyed the seven tapes.

“This will be the best chance we have to find out with confidence exactly how those tapes were destroyed,” the official said.

Until now, the government has insisted that the tapes were “missing.” And the chief federal prosecutor, Assistant U.S. Atty. George Stamboulidis, warned in court last month that the tapes contain secrets that could kill “tens of millions of people.”

Deal Includes Limited Immunity

The agreement provides Lee with a limited form of legal immunity, as federal authorities will not be able to charge him based on anything he tells them. But Lee could be charged with obstruction of justice or other crimes if he fails to cooperate, officials said.

Parker initially had urged Lee’s lawyer and federal prosecutors in June to negotiate a plea arrangement and provided a list of several judges who might preside over the talks. The two sides ultimately picked Judge Edward Leavy, of the U.S. 9th Circuit Court of Appeals, to mediate.

From the start, the defense insisted that Lee should serve no more time in prison and said he would not plead guilty to any of the crimes charged in the indictment, but that he might plead guilty to a lesser charge.

The government, from the start, wanted assurance that Lee would explain precisely how, when and where he had destroyed the tapes, as well as his reasons for creating them in the first place.

The deal represents a minor concession by the defense, because Lee will admit to one of the felony charges. But even if he was found not guilty by a jury, Lee faced the prospect of remaining in jail at least until the end of the year and perhaps much longer. Conviction on even one of the lesser counts could carry an eight- or nine-year sentence.

The deal, which first was leaked by the government, short-circuits a special hearing scheduled for today in Denver. The U.S. 10th Circuit Court of Appeals was to hear arguments as to whether they should lift an emergency stay they imposed Sept. 3, preventing Lee’s release on $1-million bond.

Parker had agreed to release Lee but had imposed what he called “draconian” conditions of house arrest until Lee’s trial, which was scheduled for Nov. 6.

Lee was to be barred from speaking to anyone except his wife, two children and lawyers. His wife, Sylvia, was to fax the FBI four hours before she planned to leave the house and was subject to FBI searches upon entering and leaving their home.

The FBI had put a surveillance camera in Lee’s backyard, tracking monitors on the family’s two cars and a wiretap on the telephone.

Those arrangements will be canceled under the proposed plea.

Lee was born in Taiwan, but became a naturalized U.S. citizen after studying engineering at Texas A & M University. He worked as a hydrodynamist at the top secret “X Division” at Los Alamos, where most of the nation’s nuclear weapons are designed.

He was fired from the lab in March 1999 for security violations after his name erupted in headlines linking him to alleged espionage at the lab.

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Wen Ho Lee Timeline

1999:

March 8: The Energy Department fires computer scientist Wen Ho Lee from Los Alamos National Laboratory, in connection with a three-year espionage investigation about alleged disclosure of sensitive nuclear missile technology to China in the 1980s. Lee denies providing secrets to anyone.

April 10: FBI agents search Lees home, hauling away boxes of evidence.

Aug. 1: Lee, in an interview with CBS’ “60 Minutes,” said it was common practice for scientists to transfer secret information from classified to unclassified computers. He says he is innocent.

Dec. 10: After hearing evidence for several months, a grand jury in Albuquerque issues a 59-count indictment accusing Lee of removing nuclear secrets from a secured Los Alamos computer. Lee is arrested.

Dec. 13: U.S. Magistrate Don Svet rules that releasing Lee on bail would pose a “clear and present danger to the national security of the United States.”

Dec. 20: Lee sues the FBI and the Justice and Energy departments, alleging they violated his privacy and wrongly portrayed him as a Chinese spy.

Dec. 29: U.S. Judge James Parker denies bail for Lee.

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2000

Feb. 15: Nov. 6 trial date is set for Lee.

Feb. 29: Federal appeals court denies bail for Lee, saying that if seven missing computer tapes fell into the wrong hands, it would “change the strategic global balance.” Lee’s lawyers say the tapes were destroyed.

April: The government restores security clearance for Lee so he can assist in his defense. He is allowed to travel to secure work areas at the lab in the custody of federal marshals, who keep him in leg restraints.

July 21: Defense renews bail request.

Aug. 17: FBI agent Robert Messemer admits during bail hearing that he gave false testimony in December when Lee was ordered to be held without bail.

Aug. 24: Federal judge agrees to release Lee on $1 million bail. He sets strict conditions for his release, including electronic monitoring, restrictions on travel and limits on the number of people with whom Lee could communicate.

Sept. 1: On the day Lee is expected to be released on bail, the U.S. 10th Circuit Court of Appeals issues an unusual emaergency halt to his release.

Sept. 10: Lee agrees to plead guilty to one of the 59 counts against him and cooperate with the government. Plea agreement hearing scheduled for today.

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Source: Associated Press