Scientist's Release Spawns New Asian Clout

By Ned Randolph

After spending the last 278 days confined alone to a cell in New Mexico, Dr. Wen Ho Lee walked out of court a free man Wednesday when federal prosecutors virtually dropped their entire case that the Taiwan-born nuclear scientist endangered nuclear secrets.

The federal government dropped 58 felony charges against the 60-year old scientist. In return Lee pleaded guilty to one charge of downloading classified material onto a non-secure computer.

Thus ends the criminal saga for Dr. Lee, but the case raises questions in what may become a national inquiry as the government tries to explain how a mild-mannered scientist could suddenly find himself as public enemy number one.

Lee was fired from his job last year at the Los Alamos National Laboratory, where he worked in the top-secret X Division, after allegations surfaced that military secrets might have been leaked to the People's Republic of China. Dr. Lee, a naturalized citizen, was arrested in December 1999.

The FBI said that Lee had downloaded massive amounts of sensitive documents, 400,000 pages containing decades of classified and restricted design data, onto ten magnetic tapes, seven of which disappeared.

The government's case began to unravel after prosecutors lost a series of motions and senior FBI agent Robert Messemer admitted that he provided misleading testimony during bail hearings in December. Public sympathy grew for Dr. Lee, who was enduring 23-hour days of solitary confinement.

Supporters of Lee said Wednesday that the government dropped its case not only because it lacked evidence to prosecute the scientist, but to avoid revealing documents that detail its methods of investigating Lee -- documents that might embarrass the FBI.

"I think that's the only way to explain why they offered him the deal," said Victor Hwang, director of the Asian Law Caucus based in San Francisco. "They did not want to turn over evidence that proved the FBI is engaged in selectively prosecuting Asian-Americans."

Presiding Judge James A Parker ordered Lee's release for time served and a $100 fine, apologizing for the "unfair manner" of his incarceration. Parker declared further that the departments of Justice and Energy "have embarrassed our entire nation and each of us who is a citizen of it."

Dr. Lee's imprisonment seemed draconian to many observers. He was allowed out of his cell one hour a day for exercise, separated from other prisoners. When he left the cell, he was shackled at his waist, his ankle and his wrist. Within the confines of the prison, he was followed by two U.S. Marshalls carrying machine guns, and for several months he was not allowed to speak native Mandarin with his family.

Prosecutors continued to file motions denying Lee bail and limiting visitation to his most immediate family.

Lee's single guilty plea allows him to go free while saving some face for the prosecution. He has promised to give more details about the seven missing computer tapes containing secrets that he allegedly downloaded. And he has agreed not to pursue a complaint that the U.S. government singled him out because of his ethnic background.

"As a matter of common sense, I agree that his plea is under duress when it is made at the same time that the government is filing an appeal to hold him in custody," said Hwang.

Lee's supporters claim that he was targeted because of his Chinese ethnic background instead of his actions. The Asian-American community spearheaded efforts that raised nearly $400,000 for costs associated with the case, and his defense team at the Los Angeles-based firm O'Melveny & Myers worked pro-bono.

As he leaves behind some of the stigma of being a "suspected spy," Dr. Lee's release begins a new round of discussion about how the U.S. government treats its ethnic minorities and naturalized citizens.

"What came to light in Dr. Lee's case was the fact that the federal government engages in racial profiling and uses stereotypes which lead to prosecution," said Chinese for Affirmative Action Director Diane Chi. "The government needs to take careful consideration in policy practices that the FBI and others utilize when thinking about possible espionage."

Though not going so far as to say that his plea agreement could be characterized as given under duress, the director of the San Francisco-based group said she would be disappointed to learn that Lee had given up any redress for a civil rights complaint.

"We have said from day one that the civil rights violations are quite egregious, and it deeply concerns us," she said.

Lee still has a civil suit pending that the FBI violated his privacy with wire tapping and other surveillance.

In a statement that followed Judge Parker's ruling, FBI Director Louis Freeh said the bureau stands by its decision to indict Dr. Lee and will pursue the location of the missing tapes. Freeh said investigators made repeated requests to Dr. Lee for specific information about what happened to the nuclear weapons data on the tapes, but Lee was not forthcoming.

"The indictment followed substantial evidence that the tapes were clandestinely made and removed from Los Alamos," but there was no assistance to resolve the missing tape dilemma, he said.

"Dr. Lee was entrusted with some of the nation's most vital and highly classified information … the location of the stolen data and who, if anybody, has had access to it, are at issue," he said.

Lee was fired from his job at the New Mexico laboratory amidst growing allegations that China had stolen millions of dollars in U.S. nuclear secrets during the 1980s and early 1990s - secrets that had saved that country decades of research and development. China had suddenly leapfrogged from 1950s weapons technology to the 21st century, according to a highly publicized report by Republican Congressman Christopher Cox.

"I thought he was just a scapegoat from the beginning," said Chi. " In the earliest coverage we saw a hearkening back to the days when the 'Yellow Peril' is coming."

Chi added, "From the outset this case was about failed policies being utilized by the federal government in terms of national security issues, and a Congress that jumped on the bandwagon."

Though this may be the end of Dr. Lee's criminal troubles, it is only the beginning for government officials who must answer to a long list of questions about its tactics of investigation and prosecution.

Sen. Arlen Specter, R-Pennsylvania, has indicated he will convene a Senate subcommittee to investigate the FBI handling of the Lee case.

"According to most intelligence experts there never was a spy," said Hwang. "What started the investigation was a leak in the W88 missile design. Someone walked into the American embassy in Taiwan and turned over pages of drawings that appeared to be schematics to the missile."

But due to design quirks they realized it didn't come from Los Alamos, and possibly came from a subcontractor. "A good question to be raised is was there ever a spy," he said.