The Imprisonment of Dr. Wen Ho Lee
By Edward Gerjuoy
Dr. Wen Ho Lee
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Dr. Lee is 60 years old and a native of Taiwan. He received his mechanical engineering Ph.D. from Texas A&M in 1969, after coming to this country on a student visa in 1964. In 1970 he became a naturalized U.S. citizen. Lee has six siblings, three of whom live in Taiwan and three who live in the U.S. His wife, who also is a Taiwanese native, became a naturalized citizen in 1997. The Lees have two children, both born in this country. More details about Lee's Taiwanese origins can be found on the website www.wenholee.org maintained by the Dr. Wen Ho Lee Defense Fund. Articles on this website discuss the contention, not addressed in this article, that these origins caused him to be unjustly singled out for investigation and prosecution after the FBI concluded Mainland China had obtained classified information concerning the U.S. W-88 advanced nuclear warhead.
Dr. Lee was hired by LANL in 1980, and worked at LANL until he was fired on March 8, 1999. About a year after being hired, and after receiving a Q clearance, he was assigned to LANL's X Division, which is responsible for LANL nuclear weapons research and design. In X Division his efforts were mainly devoted to developing hydrodynamic codes related to nuclear weapons design. On or about December 23, 1998 he was transferred to the LANL T Division, where he worked on unclassified tasks for the remainder of his tenure at LANL. Between March 8 and December 10, 1999, when he was arrested under an indictment whose terms are described below, Lee was unemployed; during this interval he resided at his home in White Rock, New Mexico, a small community in the Los Alamos area, under around the clock surveillance by the FBI, who followed both him and his wife wherever they went. He has been imprisoned since December 10, 1999, on the government's contention that he is both a danger to this nation and a flight risk.
The conditions of Dr. Lee's incarceration have been, and continue to be, disturbingly inhumane. Lee's briefs assert, without contradiction by the government in its briefs: that originally he was confined to his cell for 23 hours a day; that he was not permitted to make any telephone calls except to his attorneys; that he could be visited only by his attorneys and his immediate family; that his family's visits were limited to one hour a week in the presence of an FBI operative who listened in on everything that was said; that in order to ensure the FBI could understand everything said during these family visits, speaking Chinese was forbidden, i.e., all conversations had to be in English; that he had no access to TV or radio; and that when he moved within the prison he was shackled at the waist, wrists and ankles. Lee's counsel has informed me that originally: Lee also was denied access to any newspapers; that he was allowed to have books only if they were mailed directly to him from the bookseller, i.e., his family could not bring him any books; that he was not permitted to have any contacts with other prisoners; and that the one hour a day when he was released from his cell had to be spent indoors, i.e., he never was allowed to see the sky. Lee's counsel has further informed me that Lee's incarceration conditions recently have been eased somewhat, in that now (February 28, 2000, the date this article was submitted to APS News): he is allowed a daily newspaper; that speaking Chinese during his family's visits no longer is forbidden, because the attending FBI operative now is Chinese fluent; and that he now is allowed into an open area, from which he can see the sky, during his daily one hour release from his cell, but that he is not permitted to have any other prisoners share this open area with him.
On the day of Dr. Lee's arrest the government issued a press release which included the following summary of the contents of his indictment: "The indictment alleges that in 1993 and 1994, Lee knowingly assembled 19 collections of files, called tape archive (TAR) files, containing secret and confidential restricted data relating to atomic weapon research, design, construction, and testing. Lee is alleged to have gathered and collected this information from the secure, classified Los Alamos computer system, moved it to an unsecure, "open" computer, and then later downloaded 17 of the 19 classified TAR files to nine portable computer tapes. In addition, the indictment alleges that in 1997 Lee downloaded directly from the classified system to a tenth portable computer tape current nuclear weapons design codes, auxiliary libraries, and utility codes necessary to compare computer generated, calculated results with actual test data. Seven of the tapes Lee made remain unaccounted for as of the date of the indictment." The press release went on to quote the U.S. Attorney in charge of the case as saying: "This case is being prosecuted because Wen Ho Lee has denied the United States its exclusive dominion and control over some of this nation's most sensitive nuclear secrets. Although Lee has not been charged with communicating classified information to a foreign power, the mishandling of classified information alleged in the indictment has, in the government's view, resulted in serious damage to important national interests."
The indictment includes 59 separate Counts. Counts 1-29, making reference to each of the 19 TAR files and ten tapes described in the press release, charge that Dr. Lee "with the intent to injure the United States, and with the intent to secure an advantage to a foreign nation," violated Title 42 Section 2276 of the United States Code, a section of the Atomic Energy Act subtitled "Tampering With Restricted Data". The indictment defines "Restricted Data" as information about nuclear weapons or nuclear material; the classified files and tapes referred to in the indictment all are either "Confidential Restricted Data, unauthorized disclosure of which reasonably could be expected to cause damage to national security," or "Secret Restricted Data, unauthorized disclosure of which reasonably could be expected to cause serious damage to national security." Counts 30-39, making reference to each of the ten tapes only, charge that Dr. Lee, again "with the intent to injure the United States, and with the intent to secure an advantage to a foreign nation," violated Atomic Energy Act Section 2275, subtitled "Receipt of Restricted Data". The twenty Counts 40-59, still making reference to each of the ten tapes only, charge the gathering and retention of Restricted Data in violation of subsections (c) and (e) of U.S.Code Title 18 Section 793, a section of the Espionage Act subtitled "Gathering, transmitting, or losing defense information". Each of Counts 1-39, in addition to a possible fine, carries a maximum penalty of life imprisonment. The maximum penalty for each of Counts 40-59, in addition to a possible fine, is imprisonment for ten years. As the press release indicated, the government deliberately chose not to charge Dr. Lee with any violations of Section 794 of the Espionage Act, subtitled "Gathering or delivering defense information to aid foreign government," for which death is a possible penalty. On the other hand the government also deliberately chose to seek penalties for Lee's alleged misuses of Restricted Data under statutes permitting life and ten year prison terms, rather than under statutes imposing less stringent penalties, e.g., Atomic Energy Act Section 2277, subtitled "Disclosure of Restricted Data," violation of which is punishable only by a fine of not more than $2,500 without any prison time.
The government's request that Lee be denied bail was the subject of a hearing before a U.S. magistrate judge on December 13, 1999, three days after he was arrested. Under Title 18 Section 3142 of the Bail Reform Act, bail could be denied only if the government was able to show that "no combination of conditions" of release would "reasonably assure" Lee's appearance at trial and "the safety of... the community", i.e., the national safety; moreover the Act requires that denial of bail in order to assure the safety of the community "shall be supported by clear and convincing evidence," a much more stringent standard than the more customary "preponderance of the evidence" standard for denial of bail in order to assure the defendant's appearance at trial. Immediately upon conclusion of the hearing the magistrate judge denied bail on a finding, without a supporting written opinion, that Lee was a danger to the community; there was no finding on the need to assure Lee's appearance at trial.
The magistrate judge's order was promptly challenged by Lee's attorneys, with the result that on December 27, 1999 a hearing on the government's request to hold Lee without bail was initiated before U.S. District Court Judge James Parker; this hearing was "de novo", i.e., involved an independent presentation of evidence, although the transcript of the December 10 hearing was made part of the record in the hearing before Judge Parker. This hearing lasted three days. The next day, December 30, 1999, Judge Parker affirmed the magistrate judge's order, in a written opinion which held there was no combination of conditions of pretrial release "that will reasonably assure the appearance of Dr. Lee as required and the safety of...the nation". Judge Parker's holding has been appealed to the next higher court, the Tenth Circuit Court of Appeals headquartered in Denver, whose only superior is the U.S. Supreme Court. The Court of Appeals did not hold a de novo hearing, i.e., the evidence put on the record in the hearing before Judge Parker is the only evidence the Court of Appeals will consider.
The government's witnesses in the two detention hearings, in addition to two FBI Special Agents and a federal "Pretrial Services Officer", were: Dr. Stephen Younger, LANL associate director for nuclear weapons; Cheryl Wampler, LANL deputy group leader for computing services; Dr. Richard Krajcik, Deputy Division Director of the LANL X Division; John Romero, team leader for one of LANL's nuclear weapons design codes; and Dr. Paul Robinson, President of Sandia National Laboratories. Through these witnesses the government presented testimony supporting the allegations in the indictment, as summarized in the above quote from its press release. The issue before the court in these hearings, however, was whether Lee should be denied bail, not whether Lee was guilty of the charges in the indictment. Accordingly the government witnesses also testified in support of bail denial; this testimony was very largely speculative and/or conclusory, sometimes outrageously so (as is illustrated below). Lee's only witnesses were Jean and Don Marshall, his married neighbors for 19 years. Although both Marshalls were Q-cleared X Division employees, they had not worked on the same projects as Lee and merely testified to Lee's good character and strong family ties. Dr. Lee himself did not testify, as is his Fifth Amendment right.
In effect the government contends in its brief that: (i) the downloaded classified files contain crucial information which could enable foreign governments, depending on their present technical sophistication, to either immediately design workable nuclear weapons or to improve the designs of the nuclear weapons they already possess; (ii) because Lee could not possibly have had legitimate work-related reasons for downloading those files, he must have downloaded them with the intent to disclose them to unauthorized persons, e.g., foreign governments; (iii) the missing tapes, to which many of the files had been downloaded, very likely still exist in undeleted form, although they have been the object of an extremely intensive search, although Lee has informed the government through his counsel that the tapes had been deleted, and although some of the ten tapes mentioned in the indictment were found in Lee's office and the classified files on them had been deleted; (iv) even assuming the downloaded files have not already been communicated to unauthorized persons, this nation cannot risk the possibility that Dr. Lee, if released on bail, would find a way to reveal to such unauthorized persons how to locate and obtain the still undeleted missing tapes which Lee allegedly had cleverly hidden; (v) even assuming the downloaded files already have been communicated to such unauthorized persons, this nation cannot risk the possibility that Dr. Lee, if released on bail, would substantially increase those persons' abilities to use the files by giving them the benefit of his nuclear weapons experience.
Testimony by the government's witnesses in support of these contentions included: (i) in answer to Judge Parker's question, "Do you have an opinion as to why Dr. Lee would wait until after he was arrested, more than five years after putting this information in an unclassified partition, to take actions to disclose it to unauthorized persons?" Dr. Krajcik replied, "Because he has information, due to his experience, that he can continue to pass on, just as a consultant continues to have value to customers on a continuing basis as problems come up. The consultant can answer the questions."; (ii) to essentially the same question from Judge Parker, FBI Special Agent Robert Messemer replied, "Because in my expertise in countering espionage threats against the United States, time and time again the issue of revenge is one of the single largest motivating factors. Today, his liberty has been denied him, today there's an additional factor for him. To want to take revenge against the United States for removing his liberty, this is a strong motivating factor for persons who commit espionage."; (iii) Agent Messemer also testified that one reason why confining Dr. Lee to his home and tapping his phone would not adequately ensure the national safety was the possibility Mrs. Lee or some other third party, deliberately or unwittingly, might pass on a message revealing the location of the missing tapes. During the course of this testimony of Agent Messemer's the government lawyers argued that if Dr. Lee were released on bail foreign agents might fly to some location near his home and fly him out of the country; (iv) Dr. Younger testified, "An advanced country, that knew quite a bit about nuclear weapons, could use the information on the tapes...to uncover vulnerabilities in the American arsenal which could help them to defeat our weapons through antiballistic systems or other means."; (v) Dr. Robinson testified that "the tapes represent a portfolio of information that would allow one to develop a simple, easily manufacturable weapon such as a terrorist weapon all the way up to the very best that the United States is capable of designing."; (vi) Dr. Robinson also told Judge Parker, "I have got to say that this Court, I believe, faces a you-bet-your-country decision."
Dr. Lee's appeal brief argues, as would be expected, that Judge Parker had erroneously held the government had met the evidentiary standards needed to conclude there was no combination of conditions of pretrial release "that will reasonably assure the appearance of Dr. Lee as required and the safety of...the nation". Lee's appeal brief also contends that Judge Parker's decision to deny bail had been based on considerations which infringed Lee's Fifth Amendment rights. This contention is based on the following language in Judge Parker's opinion: "Moreover, despite repeated requests by the Government investigators for information about the location of the missing tapes or about details regarding their destruction made during a lengthy pre-arrest investigation, Dr. Lee never provided that information. The only representation that the tapes have been destroyed came from Dr. Lee's attorneys." The government's answering brief to Dr. Lee's brief argues that Judge Parker held correctly and did not infringe on Lee's Fifth Amendment rights, all also as would be expected.
Lee's reply brief to the government's answering brief raises the new contention that if the downloaded files were as important to the nation's security as the government claims, they should have been classified "Top Secret Restricted Data, unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to national security," rather than merely "Secret" or "Confidential" (compare the definitions of Secret and Confidential Restricted Data given earlier). I have not seen, and therefore cannot report on, any response by the government to this new contention of Lee's, presumably because the Court of Appeals normally does not permit briefs in response to a reply brief.
On February 29, the Court of Appeals denied Lee's appeal to be granted bail.
Edward Gerjuoy is Professor of Physics Emeritus at the University of Pittsburgh and Of Counsel (in effect an attorney consultant) at a Pittsburgh law firm. In the past he has been Chair of two APS Standing Committees, the Panel on Public Affairs (POPA) and the Committee on International Freedom of Scientists (CIFS). This history, together with the fact that he is an attorney, motivated CIFS to request that he contact Dr. Lee's defense team concerning Lee's case. Dr. Gerjuoy has informed APS News, and wants the readers of this article to know, that the aforementioned contact has led to his active involvement in the preparation of Lee's defense.
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