U.S. to Reduce Case Against Scientist to a Single Charge

James Sterngold - The New York Times - September 11, 2000

LOS ANGELES The government agreed today to drop virtually its entire case against Wen Ho Lee, the former Los Alamos scientist accused of stealing a library of nuclear weapons secrets, in return for Dr. Lee's agreement to plead guilty to a single charge that he improperly downloaded classified material onto an unsecure computer.

The judge in the case, James A. Parker, set a hearing for 2 p.m. Monday in Federal District Court in Albuquerque, when the plea will be entered. If he accepts it, Dr. Lee, 60, could walk from the courtroom a free man after nine months of prison confinement on the charges that he had stolen what government experts have called the "crown jewels" of the weapons program with the intent of handing them to a foreign power. Such suggestions have now been abandoned by the government.

People who have seen the deal say Dr. Lee would not pay a fine, would not serve more time in prison and would not face probation.

Important for the government, Dr. Lee has agreed to cooperate with investigators looking into why he improperly downloaded the massive amount of data, 806 megabytes, and what he did with it. In particular, he is expected to explain what became of seven computer tapes, now missing, onto which he downloaded data.

The plea agreement was worked out in intense negotiations after the government suffered a string of courtroom defeats, after an F.B.I. agent recanted testimony in which he had said Dr. Lee had engaged in deceptive behavior and as the government faced a deadline this week to hand over thousands of pages of classified documents about why it singled out Dr. Lee after an investigation that goes back to 1995.

Dr. Lee will plead guilty to one felony count, No. 57 of the original 59- count indictment, in which he admits to improperly gathering and retaining national security data.

The other counts, which could have brought him a life sentence, will be dropped, say people who have seen the deal.

The agreement offers less than the full exoneration Dr. Lee's family had sought. Nevertheless, his daughter, Alberta, and his son, Chung, said in a statement: "We're ecstatic. We are just simply thrilled that he's coming home. We're delighted that this resolution gives him unconditional freedom, and we believe it supports the inescapable conclusion that our father never had any intent to harm a country that he loves."

In part, government officials said they were motivated to accept the agreement because they feared that Judge Parker would force the government to disclose in open court highly classified information about the country's nuclear weapons program.

Officials in Washington insisted that they were not concerned by several adverse pretrial rulings, and they said the plea negotiations began before the judge ordered Dr. Lee released on bail, which the government had strongly opposed. An appeals court had delayed Dr. Lee's release because of the government's objections, but that stay would be lifted with the plea agreement.

Mark Holscher, Dr. Lee's principal defense lawyer, said he could not comment on the details of the agreement until Judge Parker signed it.

But Mr. Holscher said, "I can tell you that we are thrilled with the prospect that Dr. Lee may be able to rejoin his family."

The deal came together today, the officials said, when Attorney General Janet Reno, along with prosecutors in Washington and Albuquerque, decided to accept the arrangement.

"We got a felony conviction," one government official said. "He's admitted to what he said he didn't do. Finding out what happened to the tapes was a lot more important than putting a 60-year-old man in prison for the rest of his life."

Dr. Lee's lawyers have always said that he had destroyed the seven missing tapes.

Government officials said Dr. Lee agreed to a statement in the plea agreement that the government had a legitimate reason to pursue the issue of the missing tapes, an admission that prosecutors said they hoped would defuse charges that they had unfairly pursued Dr. Lee because he is Chinese-American.

Government officials said they were satisfied by the outcome, clearly hoping to salvage some good from what had become a highly embarrassing case.

The sudden and unexpected announcement brings to a close at least a chapter of one of the most contentious, politically divisive and possibly most important national security cases of the post-cold-war era. It hinged not just on questions of who had access to secrets and what they did with them, but on the government's investigative techniques, whether it used racial profiling and the civil rights of a suspect.

It also raised questions about the role of the Los Alamos National Laboratory and its culture. The laboratory is the principal institution that designs and maintains the security of the country's nuclear arsenal, and it was rocked by another security problem this year when two computer hard drives containing nuclear secrets vanished and then inexplicably reappeared after several weeks.

John C. Browne, the director of Los Alamos, described the last year and a half as "probably the most difficult period in Los Alamos's history."

He applauded the reports of the plea agreement, saying "it should allow the laboratory to put this difficult chapter behind us and move on." He added that the problems had benefited the laboratory by forcing it to improve security procedures.

From the time Dr. Lee was fired from his job in the top-secret X Division of Los Alamos in March 1999, his case has been a rallying point for Asian-American and civil rights groups. They have said Dr. Lee was unfairly singled out for a heavy- handed prosecution not because of his actions, which they said were similar to those of many other scientists, but because he is Chinese- American. Dr. Lee, who was born in Taiwan, is a naturalized citizen.

Some government officials have said that Chinese agents typically focus on Chinese-Americans in their recruitment efforts and that this justified their attention on Dr. Lee. He was initially pursued on suspicions that he had handed China secrets about the W-88, a sophisticated American warhead, but any questions of espionage were long ago dropped, and prosecutors had said spying would not be brought up in court.

More recently, several former senior intelligence officials said that they believed that the evidence against Dr. Lee was weak and that he had been singled out because of his Chinese ancestry. At the same time, the government's case began to unravel.

The government altered its basic charges several months ago, saying Dr. Lee had downloaded the secrets to enhance his prospects of getting a job at scientific institutes in several foreign countries, like Australia, Switzerland and France, to which he had written. Then it admitted that in fact it had no evidence that Dr. Lee had ever sent such letters, and several respected experts testifying for the defense disputed the contentions that the information Dr. Lee downloaded was that important. The experts argued that most of the information was already in the public domain and that it would be of little use to a foreign country.

As Dr. Lee insisted on his innocence, many Asian-Americans at the national laboratories complained of discrimination one group filed a lawsuit against the Lawrence Livermore National Laboratory and the number of Asian-American scientists applying for jobs at the laboratories has sharply dropped.

"This case has been a huge travesty," said Henry Tang, the president of the Committee of 100, an organization of prominent Chinese- Americans that has supported Dr. Lee. "It has uncovered a fissure in our society that we always knew was there. It has just become a little more transparent now."

Mr. Tang added: "I'm delighted that this long nightmare is coming to an end for the Lee family. But the efforts to find out if there is ethnic profiling at the labs should continue."

Dr. Lee's supporters, largely in the Asian-American community, have raised more than $400,000 for his defense, and most of his defense lawyers did their work on a pro bono basis or at a heavily discounted rate.

Dr. Lee filed a civil suit against the government, charging that the Energy Department violated his rights to privacy by publicly releasing incriminating evidence against him in an early stage of the investigation, such as details about his employment and travel and the results of a polygraph test. That suit was delayed pending his criminal case.

While many Asian-American groups have supported the lawsuit, the lawyer handling it, Brian Sun, said it was uncertain what would happen now.

"It is my understanding that this suit was not a part of the plea agreement," Mr. Sun said. "It will be up to Dr. Lee and his family to determine how they want to proceed."

An issue that has started to emerge in recent days, and is sure to come up again now that a deal has been cut, is who was responsible for the problems with the government's case.

For instance, a number of current or former government officials have pointed a finger at Notra Trulock III, the former head of counterintelligence at the Department of Energy, saying he improperly focused the investigation, initially a search for a spy for China, on Dr. Lee. Robert Vrooman, the former head of counterintelligence at the Los Alamos laboratory, and Charles Washington, the former acting head of intelligence at the Energy Department, have both said Mr. Trulock had acted out of a racist view that Dr. Lee was more inclined to spy for China because of his ancestry.

Mr. Trulock has rejected that, and he has countered, people who know him say, that he feels Dr. Lee was unfairly prosecuted and that the evidence never justified the harsh indictment against him. Mr. Trulock, now the subject of an investigation of whether he disclosed secrets in an unpublished article about the investigation, has said the F.B.I. bungled the investigation. Steven Berry, an F.B.I. spokesman, said the bureau would have no comment.

Mr. Trulock led the investigation until the summer of 1996. At that time, he had developed a list of 70 people at Los Alamos who had visited China at some point. That initial list of suspects was then narrowed to 12. That list was given to the F.B.I., Mr. Trulock has said, and it was the bureau that rejected the other 11 suspects, including Dr. Lee's wife, Sylvia, who also worked at the laboratory, and focused on Dr. Lee.

An examination of those lists, provided by a person close to the investigations, raises a number of questions. The list of 70 includes people with no access to classified or weapons information and whose trips to China had no relationship to their work at the laboratory. One woman, for instance, who had no access to secrets, went to China with a high school band. Another person with no access to secrets went to China to participate in joint meteorological experiments.

On the other side, one scientist involved in hydrodynamics, Dr. Lee's specialty, and who was involved in classified weapons work and went to China for a professional visit, was not included on the list of 12. This scientist was white.

The F.B.I. has said it generated its list of suspects using a "matrix," a set of criteria it could compare with a long list of suspects. Mr. Trulock has insisted that the matrix was fabricated several years later as a ploy to persuade the Justice Department to provide a warrant to tap Dr. Lee's phones. That effort, in 1997, failed.

Mr. Trulock wrote a letter to Representative Porter J. Goss, Republican of Florida, the chairman of the Select Committee on Intelligence, this past July 24, in which he flatly stated, "at no time was a matrix developed and the final D.O.E. report to the F.B.I. contains no mention of a matrix."

Mr. Vrooman has said he investigated Dr. Lee a number of times and is convinced that, while he may have been nave, he was not a spy. Nevertheless, he complained that while Dr. Lee did meet some of the criteria investigators were looking for many others who also did were left off the list of 12 suspects. Mr. Vrooman said that 15 people who did nuclear weapons research and visited China had been inexplicably left off the list.