Judge Orders U.S. to Turn Over Data in Secrets Inquiry
James Sterngold - The New York Times - August 30, 2000
ALBUQUERQUE -- A
federal judge today ordered the government to turn over what could
amount to thousands of pages of classified internal documents to help him
determine whether there is evidence
that the former Los Alamos nuclear
scientist Wen Ho Lee was unfairly
singled out for prosecution because
he is Chinese-American.
The judge, James A. Parker, also
rejected government efforts to impede or add new restrictions to his
decision last Thursday ordering the
Dr. Lee's release on bail. The scientist was arrested and indicted last
December on charges that he had
illegally downloaded a virtual library of nuclear weapons secrets.
Dr. Lee, who has spent more than
eight months in close to solitary confinement, could be released to a form
of home detention as early as Friday
afternoon, after a three-day period in
which prosecutors can seek to file an
The decision on the documents indicates that Judge Parker at least
believes there are some grounds for
the defense's assertions that Dr. Lee
was a suspect because of his ethnicity, not because of the facts, and that
others who violated or were suspected of violating security laws were not
Although Dr. Lee is not charged
with espionage, he was initially investigated for years on suspicions
that he had given highly sensitive
nuclear weapons secrets to China.
Dr. Lee was born on Taiwan and is a
naturalized American citizen. Although government officials have
said they have no evidence that Dr.
Lee spied for anyone, they have
claimed in court that Chinese spies
routinely seek out Chinese-Americans in their clandestine recruitment
Selective prosecution motions
very rarely lead to the dismissal of a
case and the judge's decision represents only a small victory for the
defense. Once the documents are
handed over, by Sept. 15, the judge
would inspect them privately and
decide whether they should be handed over to the defense. The defense
could then use them to argue that the
case should be dismissed.
In its motions, the defense provided statements from two former
senior counterintelligence officials,
Robert Vrooman of Los Alamos National Laboratory and Charles Washington of the Department of Energy,
asserting that Dr. Lee might have
been a subject of racial profiling and
that he had been pursued at least
partly because of his Chinese ancestry. Such concerns have led a number of civil rights groups, from the
American Civil Liberties Union to
the Asian Law Caucus, to take up Dr.
Lee's cause and file briefs on his
The judge ordered that the government provide several categories of
documents that the defense has been
He ordered the release of
some secret testimony provided to
Congress about the investigation,
classified material that the Department of Energy collected last year
for a report on whether the agency
had engaged in racial profiling, State
Department records on security
breaches by employees that were not
prosecuted and a counterintelligence
training tape that the defense says
encourages racial profiling.
He also sought statements by a
former counterintelligence official at
the Energy Department, Notra Trulock, that the investigation should
focus on ethnic Chinese and Mr. Trulock's full list of suspects.
In addition, he sought F.B.I. reports on the number of people who
had access to information about the
advanced warhead that the government believes may have been leaked
to China, as well all reports on administrative inquiries by the Energy
Department or the Los Alamos National Laboratory on improper handling of classified data from 1987 to
The issue of bail, which Judge
Parker granted on Thursday after
two earlier denials, was crucial in
the minds of many of Dr. Lee's supporters today, as well as to the government, which continued to argue
that Dr. Lee presented a grave
threat to national security.
Dr. Lee is charged with downloading weapons test and design data
onto 10 portable computer tapes, 7 of
which are missing. Dr. Lee has indicated through his lawyers that he
destroyed the tapes, but the government maintains that if he spirited
them away to a hostile power after
his release they could alter the global
balance of power.
By granting bail, the judge appears to have accepted the defense's
claims that those assertions are exaggerated. And while the judge also
rejected the government's request
for a seven-day stay of Dr. Lee's
release on $1 million bail, he did
grant a three-day stay to give prosecutors time to prepare an appeal
and receive permission to file it from
the United States solicitor general.
The judge reversed his denial of
bail to Dr. Lee after receiving new
information at a hearing two weeks
ago, including an F.B.I. agent's admission that he had provided incorrect testimony on several critical
issues, which made Dr. Lee appear
deceitful when he had not been.
"We must note that had Judge
Parker been provided the complete
record in December, Dr. Lee would
not have spent eight months in solitary confinement in shackles," Mark
Holscher, one of Dr. Lee's lawyers,
said after this morning's hearing.
The judge ordered Dr. Lee's lawyers and the prosecutors to meet this
afternoon to work out the conditions
of his release, which the judge
agreed to modify only slightly from a
draft proposal he released last week.
These changes included an explicit
order that Dr. Lee could garden in
his backyard at home, that he could
use an ambulance if he required
emergency medical treatment, and
that staff members of the Albuquerque law firm representing him could
pick Dr. Lee up and transport him to
and from the courthouse here when
he was meeting with lawyers to prepare his case.
The judge tersely rejected arguments by the lead prosecutor,
George Stamboulidis, that tight restraints needed to be imposed on Dr.
Lee's communications with his wife,
Sylvia, and on his wife's communications with third parties outside their
home near Los Alamos.
"I'll reject that out of hand,"
Judge Parker said when Mr. Stamboulidis began discussing limits on
Dr. Lee's conversations with his
When Mr. Stamboulidis argued
that Dr. Lee might use his wife to
unwittingly pass along a coded message that would result in the transfer
of weapons secrets, an act of espionage, Judge Parker expressed pointed skepticism.
"The scenario you described suggests Dr. Lee would consciously subject his wife to an offense that could
subject her to the death penalty," he
said in rejecting any restraints on
Mrs. Lee's communications outside
"I'm just glad he's getting out,"
said Alberta Lee, Dr. Lee's daughter.
"Any conditions are fine."
Lifting of Security Steps
WASHINGTON, Aug. 29 (AP) --
Scientists from countries like China,
Russia and Iran are expected soon to
resume normal ties with the Energy
Department's three nuclear weapons research labs, ending a 10-month
ban on virtually all such contact.
Concerned about safeguarding nuclear secrets, Congress last November barred scientists from 25 "sensitive" countries from visiting the
labs, having contact with lab scientists or access to any computer systems at the sites.
The law said the moratorium could
be lifted only after directors of the
Federal Bureau of Investigation and
the Central Intelligence Agency determined that the foreign visitors
program had safeguards to prevent
the loss of nuclear secrets.
The F.B.I. director, Louis J. Freeh,
and C.I.A. director, George J. Tenet,
informed key members of Congress
on Tuesday that they had concluded
that the system met those security
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