Judge Orders U.S. to Turn Over Data in Secrets Inquiry
NYTimes
By JAMES STERNGOLD
ALBUQUERQUE, Aug.29 -- 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 appeal.
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 prosecuted.
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 activities.
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 behalf.
The judge ordered that the government provide several categories
of documents that the defense has been seeking.
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 present.
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 wife.
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 cold subject her to the death
penalty," he said in rejecting any restraints on Mrs. Lee's
communications outside the house.
"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 needs.
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