April 15, 2000 The computer files at the heart of the case against the former Los Alamos scientist Wen Ho Lee were given higher security classifications last year only after he was fired in the midst of an espionage investigation at the weapons laboratory, defense lawyers and federal officials say.
New York Times
Files in Question in Los Alamos Case Were Reclassified
By William J. BroadAt the time Dr. Lee downloaded the files onto his computer, they were classified but not designated secret or confidential, as the indictment against him alleges. Instead, they were governed by a lower kind of security precaution, according to both sides in the case, as well as a document that federal prosecutors filed as evidence.
Mark Holscher, the lead lawyer for Dr. Lee, said the after-the-fact change, which he said his team discovered while studying prosecution evidence, would be a powerful weapon for the defense. But Mr. Holscher would not say how he intended to use it, beyond declaring, "The indictment is deceptive."
Though government officials conceded that the original security level was low, they emphatically denied that the material Dr. Lee downloaded was insignificant.
"We stand by our indictment and look forward to litigating this issue when Dr. Lee is tried," said Myron Marlin, a Justice Department spokesman. "What Lee stole was the crown jewels."
On Monday, The Albuquerque Journal reported the low level of security for the downloaded data.
Since his indictment on Dec. 10, Dr. Lee has been held without bail, in solitary confinement and under unusually tight security in Santa Fe, N.M.
Federal prosecutors have accused him of seizing the heart of the American nuclear arsenal, but his backers maintain that his actions were nothing out of the ordinary and that he is being singled out because of his ethnic background. A native of Taiwan, Dr. Lee is a naturalized American citizen.
The downloaded material had a security designation "protect as restricted data," or PARD, a category applied to scientific data so voluminous and changing so frequently as to be impossible to assess in terms of security. It is not a security classification per se, but rather a rule for handling potentially sensitive materials, and is governed by the secrecy provisions of the nation's atomic energy laws.
While PARD material by definition is classified and the designation holds out the possibility that some of it might be highly sensitive, it is not subject to the same stringent precautions applied to data designated secret or confidential. For example, scientists working with it may leave it on their desks overnight, rather than in a safe.
And careful records are kept on the disposal of all secret and confidential data before its shredding and burning; PARD printouts required no such accounting.
Still, PARD data must be kept in secure premises at the weapons laboratory; by law it cannot be transferred onto unsecured computers, as the government has charged Dr. Lee with doing.
Both sides in the case agree that the material Dr. Lee is accused of downloading contained nuclear secrets.
A federal official intimately familiar with the legalities of the case and strongly supportive of the government's position said the downloaded data included computer instructions on how to simulate the design of a nuclear warhead, including exact dimensions and other geometrical information that when standing alone would be guarded assiduously.
"I don't think this is poking a major hole in the case," the official said of the PARD issue.
"What would be a problem is if things weren't as alleged in the indictment."
Stu Nagurka, an Energy Department spokesman, said the agency "can't comment on the indictment in any way."
A senior administration weapons expert strongly contested the idea that the PARD behind the Lee indictment was any less important than more concentrated data on nuclear arms.
"A duck is a duck is a duck," the official said.
The defense team countered, though, that any critical information was buried in a virtually indecipherable mass of benign data.
Commenting on the dispute, Steven Aftergood, a secrecy and classification expert at the Federation of American Scientists, a private group in Washington, said the development would throw the government on the defensive.
"This takes some of the heat off Wen Ho Lee and puts it on the government, and particularly on the security system," Mr. Aftergood said. "The murkiness of the classification issue takes this out of the category of 'crown jewels,' 'worse than the Rosenbergs' and 'change the strategic balance,' " he added, citing descriptions of the case. "It's much more complicated than it seemed at first."
When Dr. Lee was arrested in December, after years of being investigated as a possible Chinese spy, the government, in a 59-count indictment, accused him of systematically endangering the design security of virtually every nuclear warhead in the American arsenal through unauthorized computer transfers of many of the most sensitive nuclear secrets.
While he is not charged with espionage, the indictment claimed he acted "with the intent to secure an advantage to a foreign nation." Most of the data that Dr. Lee downloaded is missing. He claims it was destroyed and insists that his actions were strictly in the line of scientific duty.
Stephen M. Younger, director of nuclear weapons at Los Alamos, told the federal court at a December bail hearing that the downloaded data in the wrong hands could "change the global strategic balance."
Specifically, the indictment said that in 1993, 1994 and 1997 Dr. Lee had illegally transferred secret and confidential restricted data, the federal term for information on the design, manufacturing and use of atomic weapons.
But according to "Grand Jury Exhibit One," a 47-page Los Alamos analysis of material that Dr. Lee downloaded in 1993, 1994, 1995, 1996 and 1998, the downloading involved either unclassified or PARD data. The analysis was filed in the federal courthouse in Albuquerque as prosecution evidence.
A brief reference to PARD was made in Dr. Lee's bail hearings in December when Paula Burnett, a federal prosecutor, asked Cheryl Wampler, a prosecution witness and the author of the Los Alamos analysis, what the term meant.
"Literally, it stands for 'protect as restricted data,' " Ms. Wampler replied, "and that is converted into a numbering system" that in a computer indicates the degree of security. "It would have been level five," she added. The prosecutor questioned her no further, and defense lawyers did not pursue the point.
Later, though, they discovered that PARD's security ranking was five on a scale of nine, the highest level being reserved for secret restricted data.
A 1995 Los Alamos security manual defined PARD as "a handling method for classified computer system output that is generated as numerical data or related information and that is not readily recognized as classified or unclassified because of the high volume of output and the low density of potentially classified data."
But today, officials at the weapons laboratory say the category has long been troublesome, given its ambiguous nature. Though it was once used widely in the nation's nuclear weapons complex, the Energy Department, which runs the laboratories, has faulted PARD as antiquated and risky in terms of security and had moved to eliminate it, even before the Lee case, said Jim Danneskiold, a Los Alamos spokesman.
Mr. Danneskiold said the department had ordered the PARD category eliminated by June 30, 2002.
"It's going away," he said. "In practice, less and less has been generated over the last five years. It's fairly rare at this point. New PARD has not been created in years."
John D. Cline, an Albuquerque lawyer on Dr. Lee's legal team, recently wrote a weapons scientist to say that "it appears from the evidence now available that ALL of the files (including data files and input files) were protected at the PARD level."
In an interview, Mr. Cline said, "We're examining this issue for its potential benefit to the defense." Dr. Lee's trial is to begin on Nov. 6.
A federal official agreed with the defense's portrayal of the PARD ubiquity. But he added that subsequent classification analysis showed that it was littered with state secrets, many of them major.
"I'm fairly confident that there isn't anybody who's going to be saying it was less than S.R.D.," or secret restricted data, the official said of expert judgments about the downloaded data.
Asked why the security of the downloaded data was changed, a senior official in the Justice Department referred the question to the Energy Department. A senior official there said the investigators had evaluated the material Dr. Lee had downloaded and then discovered it contained highly sensitive material.
The evaluation "was done to determine the sensitivity of the files," resulting in the higher security designations, the official said.
Mr. Holscher, Dr. Lee's lead lawyer, was highly critical of the government's action. "The government did not disclose that the over 20 references to secret restricted data were classifications made after the investigation started," he said in an interview. "That was never revealed in court or to the public.
"Los Alamos rates these materials as a five on a scale of nine in terms of sensitivity, and then tells two federal judges that they are the crown jewels," he said. "So what do they call the millions of documents at higher levels of classification?"
Dr. Lee's lawyers said the new development makes their client's actions seem less like the systematic looting of the nation's top nuclear secrets, as the government contends, and more like a research misdemeanor, as the defense has argued.
The development is likely to fuel comparisons between the way the government handled evidence of computer security lapses by a former director of Central Intelligence, who lost his security clearance, and by Dr. Lee, whose ankles and wrists are shackled during weekly visits he is allowed to make with his family.
Robert M. Henson, a former weapons designer at Los Alamos who in 1995 sounded the first alarms about the possibility of Chinese spies at the laboratory, said Dr. Lee had "probably stretched the rules" in downloading PARD but no more. "Shame on him if he did," Dr. Henson said.
Dr. Henson also told of his own missteps with PARD, including once when a flurry of paper blew out an open laboratory window.
He added that the category deserved to be eliminated as its goals of achieving both high secrecy and relative openness were inherently contradictory.
"It's probably illegal," he said of PARD, "and that's why they're trying to make it go away."