April 20, 2000 Lawyers for Wen Ho Lee are mounting serious legal attacks on the government's charges against the former Los Alamos nuclear scientist, claiming that key evidence against him was illegally seized and that the weapons data he copied from lab computers was not classified secret.
The Washington Post
Lee Disputes Classification of Weapons Data
By Walter Pincus
Washington Post Staff WriterIn a motion filed Monday in federal court in Albuquerque, Lee's attorneys moved to suppress evidence gathered in the April 10, 1999, search of his home in White Rock, N.M. Some items found in the search are very important to the government's case, including a notebook with a handwritten index of the data that Lee downloaded from Los Alamos National Laboratory computers to tapes, seven of which are missing.
Before the search, the government had no knowledge that Lee, a 60-year-old naturalized U.S. citizen born in Taiwan, had transferred nuclear weapons information to portable tapes.
Lee was arrested in December and indicted under the Atomic Energy Act and the Espionage Act on 59 felony counts of mishandling computer codes and databases, which could carry a life sentence. His case sparked a political furor last year over allegations that China stole U.S. nuclear weapons designs, but Lee has not been charged with passing information to China, Taiwan or any other country. His supporters allege that he was singled out for investigation because of his ethnicity.
Lee's attorneys contend that the search warrant was faulty because it did not identify what items the government was seeking, as required by federal court decisions. FBI agents not only took Lee's notebooks and address books, but also such personal belongings as his children's photo albums, his 1966 doctoral thesis and a volume of plays by Tennessee Williams.
"The search warrant here blatantly violated [a] well-established prohibition against general warrants," the defense lawyers said in a memo attached to their motion, which has yet to be reviewed by the court.
Lee's attorneys also have discovered that the computer data copied by Lee in 1993, 1994 and 1997 had not been reviewed for specific classification such as secret or top secret. Instead, the information on the lab's secure computer system was designated as PARD, for "protect as restricted data."
Restricted data is a general government classification applied to nuclear weapons information. According to security specialist Steve Aftergood of the Federation of American Scientists, PARD was a category that evolved because the enormous amount of data in Los Alamos computers posed a "practical difficulty" for classification.
PARD data on disks, Aftergood said, could be left overnight in secure areas of Los Alamos without being locked up in safes, unlike data that is classified secret. But, he added, the PARD designation "is not a guarantee that there is no highly classified material there." Secret or top-secret information "can be scattered about [in PARD data] like raisins in a cake," Aftergood said.
After Los Alamos learned that Lee had copied PARD data onto tapes, according to a U.S. official familiar with the case, lab officials printed out the data and began applying "secret" and "confidential" labels to various parts of it.
By the time a hearing was held on whether Lee should be kept in jail, government officials testified that the tapes contained enough data to allow someone to design, build or evaluate U.S. nuclear weapons.
If these tapes fell into the wrong hands, Stephen Younger, a weapons designer and assistant director for nuclear weapons at Los Alamos, told a court hearing, it could "change the strategic global balance," a statement some scientists consider exaggerated. John D. Cline, one of Lee's lawyers, said yesterday that "the PARD issue is one we expect to raise" in future legal motions, including one to make more of the data public and another seeking dismissal of the entire indictment.
Lee has remained in jail pending trial because prosecutors, following two public hearings, convinced a federal judge that freeing him on bail could lead to the loss of the nuclear secrets on the seven missing tapes.
Lee's attorneys also are studying whether to seek Supreme Court review of a 10th U.S. Circuit Court of Appeals decision that upheld keeping Lee incarcerated until trial.
Government sources say prosecutors are confident they can sustain their case against Lee and that the classification issue will be settled in the government's favor. Even under the PARD classification, one government lawyer said, the data should not have been removed from secure areas at the Los Alamos lab.
© 2000 The Washington Post Company