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September 19, 2000

The Strange Case of the U.S. v. Wen Ho Lee

Announcer: September 19th, 2000.

Dr. WEN HO LEE: The next few day I'm going to fishing.


He spent nine months in solitary confinement, then the case against Wen Ho Lee collapsed in a cloud of questions.

President BILL CLINTON: The whole thing was quite troubling to me.

Dr. LEE: I'm innocent. Is that OK?

Unidentified Reporter #1: Actually, just a couple quick questions.

Dr. LEE: No.

Reporter #1: Sir.

DONVAN: Was this ethnic scapegoating?

Mr. ROBERT KIM (American Civil Liberties Union): There was strong evidence that the government was singling out Dr. Wen Ho Lee because of his race.

DONVAN: Or was a spy set free?

Mr. NORMAN BAY (United States Attorney-New Mexico): What he did was to compile a personal library of highly sensitive nuclear secrets. This information represented a complete design portfolio for nuclear weapons.

DONVAN: Tonight, the strange case of the United States versus Wen Ho Lee.

Announcer: From ABC News, this is NIGHTLINE. Substituting for Ted Koppel and reporting from Washington, John Donvan.

DONVAN: A few days ago a spy case that has been described as posing one of the most serious threats ever to the safety of the citizens of this country just sort of fizzled out in confusion. Until last week, the government was telling us that a scientist named Wen Ho Lee, who was accused of stealing nuclear secrets, was so dangerous that there was no way he should be allowed out on bail, even a million dollars bail. After all, he faced 59 separate felony charges and possibly life in prison.

And then prosecutors in Albuquerque, New Mexico, where his case was being heard, agreed that it was now safe to let Lee go after he pleaded guilty to a single felony charge with a sentence equal to the 278 days he had already spent in jail. When he was released, the judge apologized for the conditions of his imprisonment and the president of the United States suggested that he was uneasy with the way that Lee had been treated. And yet the prosecutors who went after Lee are sticking by their guns. They say their case against Lee was solid. He was not the wrong guy. Later in the broadcast, I'll be asking the lead prosecutor why not.

But where does this leave national security, and where does this leave one man's civil rights? Nobody involved in this case has cleared up yet what seems to be the most obvious question of all. Was Lee wrongly accused? And if he wasn't, does that mean that a spy was just set free? NIGHTLINE's Dave Marash has been retracing the sequence of events in the confusing case of Wen Ho Lee.

Unidentified Reporter #2: Mr. Lee, do you have any comment? Have you been indicted?

DAVE MARASH reporting:

(VO) Wen Ho Lee, suspect. How is that connection first made? The US attorney in charge of his prosecution says, suspicions were first aroused back in 1982.

Mr. BAY: He was picked up on a wire tap, an FBI wire tap. He was calling a scientist at another national lab, a scientist who is being fired for passing classified information to a foreign country. Dr. Lee asked this scientist if the scientist wanted his help, if he wanted help in finding out who had, quote, "squealed on him."

Reporter #1: Mr. Lee, just a couple quick questions.

Dr. LEE: I can't--no, I...

Reporter #1: Sir.

MARASH: (VO) This does sound suspicious. Wen Ho Lee offering to help a national security secret leaker, even offering to uncover who had found him out. But is it? Lee's lawyer, Mark Holscher.

Mr. MARK HOLSCHER: I think the key thing to remember here, Dave, is that Dr. Lee was asked by the FBI to assist them in this tiger trap investigation. He actually assisted them, cooperated, and much to the satisfaction of the FBI, went and spoke to this person at their direction.

MARASH: The bottom line, Wen Ho Lee, after this incident, was cleared for top secret data and the long career helping to design nuclear weapons. So if the 1982 incident did not alarm the counterintelligence people who investigated it then, why do prosecutors today claim to find it so suspicious? Was it because of what Wen Ho Lee did or because of who he is, a foreign-born Asian American? In the Asian American community, there seems to be little doubt.

Mr. KIM: There were strong and explicit statements by high-ranking FBI officials, Department of Energy counterintelligence officials and counterintelligence officials at Los Alamos stating that--that racial profiling does take place within the laboratories when the government is trying to find suspects. And also, in particular, that Dr. Lee had been singled out because of his race.

MARASH: (VO) Robert Vrooman used to be in charge of counterintelligence at Los Alamos.

Mr. ROBERT VROOMAN: They stopped looking at other people, in my opinion, because he was ethnic Chinese. They figured the Chinese would only recruit an ethnic Chinese. Now those of us who had worked in counterintelligence for years knew that that wasn't true.

MARASH: (VO) Vrooman says the investigators' preoccupation with Lee led them to ignore many other potential suspects who also had access to the same materials Lee downloaded.

Mr. VROOMAN: They never went beyond Los Alamos, and this information existed throughout the Department of Defense. I think the distribution of this information was 546 mail stops. How many people do you think that is?

MARASH: The worst suspicions seemed to have shaped not just the investigation of Lee, but his prosecution as well. He was perceived to be such a threat that even though he was still innocent until proven guilty, he was held under the most restrictive regime.

Mr. HOLSCHER: He was essentially shackled and chained at all times when he was moving within the prison. He was in solitary confinement. And for a good period of time, he was actually under 24-hour ob--observation where someone would be looking at him at all times through a peep hole or a window of his cell.

MARASH: Virtually, the whole top shelf of the Clinton administration's national security team, the CIA director, the national security adviser, the energy secretary, and the attorney general seemed to have shared these dark suspicions. They all reportedly signed off on Lee's 59-count indictment, including charges he harbored a malign intent to harm US interests and a relationship with a foreign power, although scant evidence for either charge has yet been produced. And the harsh conditions of his imprisonment were approved by Attorney General Janet Reno, a stark contrast to the treatment accorded a former colleague, John Deutch.

(VO) According to investigators, Deutch, a former director of central intelligence, regularly took home floppy disks containing secret material and used them on unsecured computers over a four-year period in which he was first in charge of all American weapons acquisitions and last, director of the CIA.

Mr. MIKE NEUMAN (Computer Security Consultant): The data stored on John Deutch's computer is, by far, the highest level of sec--of secured information that we have as a country. They include budgets for the national recognizance program, trip reports that he had with other countries with other agencies. Certainly, the data stored on the home computer of John Deutch is at a har--a far more--is far more valuable than that stored on Wen Ho Lee's computer.

MARASH: (VO) Not only was Deutch's data more dangerous than Lee's, Neuman says, his handling of it may have been even more reckless.

(OC) Now, John Deutch did take what he felt were precautions to secure the materials. He would copy documents and then erase the originals. Is that a sufficient precaution to protect those materials?

Mr. NEUMAN: Well, certainly not. It's--it's--there are widely available programs which will recover deleted data off of hard drives.

MARASH: To this date, the Justice Department has expressed no suspicion on Deutch's intentions and as yet no inclination to charge him with a crime, which is how Robert Vrooman says the Wen Ho Lee case should and normally would have been handled.

Mr. VROOMAN: If this case hadn't been in the media in March of '99, Lee would have been probably just disciplined administratively for mishandling classified, and it would have ended at that.

MARASH: (VO) But it didn't.

Mr. KIM: What this case indicates to us is that the federal government was--was motivated in whole or in part by race.

MARASH: (VO) This opinion, widely held in the Asian-American community and among scientists working in America's weapons research facilities, is proving very damaging.

Mr. VICTOR HWANG (Asian Law Caucus): Asian-Americans are no longer applying to go into the labs. There's a boycott against the labs. Many of the other scientists are fleeing the labs because of this scapegoating. They don't understand why Dr. Lee was singled out, and they don't want to be the next one picked on by the government.

Mr. ERNEST MONIZ (Under Secretary of Energy): I believe there's--there's no question as we have gone around the complex that we have an issue that we are addressing and need to keep addressing. We have had legitimate needs for upgrading certain security areas and some of our scientists are concerned, I think, about where--where this will lead.

MARASH: If America's national security really resides not so much in protecting old secrets, as in uncovering new ones through scientific exploration, the damage done by Wen Ho Lee's security violations may be dwarfed by the damage done by the investigation of him for them. I'm Dave Marash for NIGHTLINE in Los Angeles.

DONVAN: So did the government over reach on this case? We will put that question to the US attorney who prosecuted Wen Ho Lee when we come back.

Announcer: This is ABC News: NIGHTLINE, brought to you by...

(Commercial break)

DONVAN: To help lift some of the fog surrounding what happened last week in the Wen Ho Lee case, we're going to turn now to Norman Bay, the US attorney who supervised the government's prosecution. He joins us from akil--affiliate KOAT in Albuquerque.

And Mr. Bay, help me understand this. Three weeks ago you were talking about Mr. Lee, Dr. Lee, as an extremely dangerous man. Quoting from your own motions, you said "He presents an unprecedented risk of danger to national security." You also said, "There is no condition that will reasonably assure the safety of this country if Lee is released." Now he's released. He's out. Is he dangerous or isn't he?

Mr. BAY: Well, John, you have to keep in mind what this case has been about from its inception. It's been about national security. It's been about more than 800 megabytes of classified information. That's more than 400,000 pages of information, it would be a stack of paper more than a 130 feet high, 13 stories of classified information that he transferred and then downloaded on to 10 magnetic tapes, three of which were found as a result of the investigation, but seven of which were not. He had no legitimate job-related reason to do any of that. And it was a scale of information taking unprecedented in the history of Los Alamos Labs.

The government was concerned, and that's why we moved to detain him, because we had sought his cooperation. We had not gotten it. But through the plea agreement, for the first time, he agreed to tell us what he did with the tapes. He gave us statements under oath and we had certain guarantees built into the plea agreement that we could now rely upon what he said and verify what he told us.

DONVAN: Mr. Bay, I'm still not hearing, though, the answer to the question. The anomaly that on--on September 2nd you were saying he was way too dangerous to be out of prison. He could slip notes to his wife, who could possibly get them out. Now he's with his wife. He's with his family. He may go fishing. He's basically free. How--how do you explain that this man seen as so--such a high risk, now apparently isn't such a high risk?

Mr. BAY: Well, the risk was predicated on the seven missing tapes and not having any explanation from Dr. Lee as to why he made the tapes or what he did with them. From the start, this case has been about trying to answer three crit--critical questions, John. Why did Dr. Lee make the tapes? What did he do with them? And did anyone else gain access to them? That's what made him a danger. Because in the absence of any explanation, there were a lot of big, what-ifs out there.

DONVAN: Do you think he's a spy?

Mr. BAY: John, he's never been charged with espionage, and from the start of this case, even at the press conference, the government said that we did not have any evidence linking him to a handoff of the evidence to...

DONVAN: But you--you were prepared to charge him on 39 counts under the Atomic Energy Act. Those counts involve the idea that he would have transferred that data either to cause harm to the United States or to bring advantage to a foreign power. Now that may not technically be espionage under the law, but to ever--the rest of us, that sounds like spying. Did you think that you could make that case against him, that he was involved in action that would harm the US or bring advantage to another country? And what happened to those charges, if you believed them before?

Mr. BAY: Yes, we did. We thought we could prove that, and a grand jury found as much. The Atomic Energy Act counts require the government to show that Dr. Lee acted with an intent to injure the United States.

DONVAN: And you believed that that was his intent?

Mr. BAY: He began to delete files left and right even though he wasn't supposed to have access to the classified computer system and tried to get into the X division which is the classified part of Los Alamos even though his access to that area had been terminated. In fact, after he was terminated from X division on December 23rd, he tried to get in on Christmas Eve at 3:30 in the morning. I think all of that could--could fairly show that Dr. Lee had an intent to injure the United States when he made these--these unprecedented downloads of classified information.

DONVAN: Mr. Bay, there are those who say, particularly in the Asian-American community, that this was all about race, that this man was targeted because he was born in Taiwan, has an Asian face, Asian eyes, therefore he was looked at suspiciously from the beginning and that's what motivated this. And I'm putting the question to you and asking it to you also as an Asian-American, what about that charge, because we're going to be hearing more about it in the program.

Mr. BAY: Dr. Lee was prosecuted not because of his ethnicity, because of what he did. Because he downloaded this huge amount of classified information more than 400,000 pages of information and had no explanation for why he did it or what he did with that material. You know, I have to tell you, John, that I am Asian-American, as you point out, and I'd like to think that I'm sensitive to that issue. You know, there are a lot of similarities between my parents and Dr. Lee. My parents came from China, they came here after World War II. They became naturalized citizens just like Dr. Lee. And my dad worked for the Department of Defense. He had security clearance, just like Dr. Lee. And like Dr. Lee, he spoke English with an accent.

Let me tell you, if I had any notion that Dr. Lee was being singled out because of the way he talked, because of the way he looked, or because of where he was from, I would have taken that indictment and ripped it up faster than you could say 'This is garbage.' Dr. Lee was prosecuted because of what he did, not because of his race. And I know a lot of people don't like to hear me say that, but I have to tell you that because I believe it to be the truth and it is the truth.

DONVAN: Mr. Bay, thank you very, very much for joining us.

To many Americans, the Wen Ho Lee case has raised alarm bells. And we will talk later with an advocate for the Asian-American community and a nuclear weapons watch dog when we come back.

(Commercial break)

DONVAN: Joining us now from our Los Angeles bureau is Kathay Feng, program director at the Asian Pacific American Legal Center, and here in Washington, Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists.

And Ms. Feng, I know that the Asian community--Asian-American community has serious concerns about this entire case. Can you tell me briefly what they are, where they stand?

Ms. KATHAY FENG (Asian Pacific American Legal Center): The chief concern has really been that from the very get-go, there's been a lot of evidence that's come forward that there's been a rush to judgment based on racial stereotypes that evoked Asians as the historic and perpetual foreigner, being disloyal to our country, really evoking the historical images of Asians as the yellow peril.

DONVAN: And , Mr. Aftergood, you represent scientists who I understand in the laboratories are beginning to have serious concerns about the effect of this entire process on the morale of the establishment.

Mr. STEVE AFTERGOOD (Federation of American Scientists): Yes. I think this case is a strong indication that the security system has gotten out of control and is unchecked. The racial profiling issue is just one of several that require further investigation. It is an issue that can be resolved if Congress would subpoena the documents that Judge Parker had ordered the government to provide.

DONVAN: What do you think you would find in those documents?

Mr. AFTERGOOD: Well, I don't want to prejudge the answer, but I think the defense suggested that there was some serious evidence of racial profiling and selective prosecution.

DONVAN: Ms. Feng, do--do you believe that Dr. Lee, Wen Ho Lee, is innocent or are you saying you don't really know?

Ms. FENG: I think none of us really knows. And I think that we also acknowledge that Dr. Lee did mishandle some evidence. I think what we're particularly concerned about is the nature by which he's been prosecuted, the severity of the punishment that's been imposed. The rush to judgment on all sides, whether it's by the media, Congress, the electeds or our own Departments of Justice.

DONVAN: Let me throw this question to both of you. As--as wrong as you both feel that it is. What if racial profiling were to lead to a suspect who is Asian. What--is that a tolerable situation given that it would yield the result that investigators were seeking in the first place?

Mr. AFTERGOOD: I think it's built on a false premise. It ignores the most damaging spies of all, which is the walk in, the volunteer who doesn't fit any profile. So I think it's just bad counterintelligence policy.

DONVAN: And you, Ms. Feng?

Ms. FENG: I think the real problem is that it violates one of the core fundamental values and principles of the US justice system which is number one, that we presume that a person is innocent until proven guilty. And number two, that we judge person by his acts and not by who he is or what race or ethnicity he is.

DONVAN: What I noted and what Judge Parker said last week is that he believes that Mr--Dr. Lee faced a real risk of conviction if the case had gone ahead. That the case against him, it seems, he's saying, is pretty good, regardless of the racial profiling issue. What's your response to that?

Mr. AFTERGOOD: Well, I think--I think he was guilty of computer security violations. And if he had simply been fired from his job and had his clearance yanked no one would really have had grounds to complain. What everyone is upset about is that the government's response was so vastly disproportionate to the offenses that were committed. That's a threat to everyone's rights.

DONVAN: Ms. Feng, your response to that.

Ms. FENG: I agree wholeheartedly. What troubles us most that--is that several investigations of other individuals have gone down and similar kinds of charges have been brought against people, but in the administrative arena. So, the--the type of discipline that has been meted out has been a suspension of priv--of security privileges or a firing from their position. But certainly not a bringing of criminal charges, some 59 counts for which Dr. Lee would have been in prison for the rest of his life.

DONVAN: And each of you, very quickly, assess the damage. You first, Ms. Feng.

Ms. FENG: The damage, unfortunately, I think, is on a large scale to American society. Number one, if what we were really after was somebody who supposedly had leaked nuclear secrets to China, we haven't found that person and we perhaps have lost the chance to get the truth-- to get at the heart of the truth because the Web was cast so small in the beginning and we narrowed in on a single suspect based on his ethnicity.

DONVAN: And you, Mr. Af...

Ms. FENG: But, number two...

DONVAN: Well, I've got to interrupt you and go to Mr. Aftergood.

Mr. AFTERGOOD: I would say that the main damage is that the credibility of the government on national security and espionage has been shredded and lasting damage has been done to the national laboratories.

DONVAN: Mr. Aftergood, Ms. Feng, thank you both very much. And I'll be back in just a moment.

(Commercial break)

DONVAN: Tomorrow morning on "Good Morning America," a special look at the exhausted American worker. That's our report for tonight. I'm John Donvan in Washington. For all of us here at ABC News, good night.

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