Associated Press Albuquerque -- The judge in the Wen Ho Lee case has given appeals court judges who barred Lee's release a primer on three months of legal research into the fired scientist's alleged national security violations.
September 5, 2000
Appellate Judges Latest to be Ensnared in Twisting Case
By Richard BenkeU.S. District Judge James Parker has submitted a 17-page memorandum explaining his bail order to the 10th U.S. Circuit Court of Appeals, which on Friday halted Lee's release on $1 million bail.
Parker expressed concern from the bench Friday that the appeals court might not have enough time to review all the evidence Parker had seen, much of it classified, to make a reasoned ruling on bail.
So Parker sent the judges his memorandum, which said, among other things, that Lee did not get a fair chance to rebut many allegations against him during hearings in December that initially denied him bail.
Since then, Lee has been held in solitary confinement at the Santa Fe County jail, much of the time in leg shackles.
The defense has since amassed statements of respected scientists disputing the value of material Lee is accused of downloading to unsecure computers and tapes, and evidence suggesting Lee was not clandestine or deceptive, a danger to the United States or a risk to national security, Parker said.
It's no longer clear, he said, that Lee downloaded the "crown jewels" of U.S. nuclear science.
It is clear, however, that "Lee's actions were certainly deliberate and not 'the result of a simple mistake,"' he said.
But the judge said physicist John Richter, a pre-eminent U.S. nuclear weapons designer, did not see Lee's actions as devious.
"Never attribute to malice what can be adequately explained by stupidity," Parker quotes Richter as saying. He quotes former Los Alamos lab counterintelligence chief Robert Vrooman as saying Lee was "naive," not disloyal.
Further, the judge said, Lee's current custody conditions have afforded opportunities for Lee to leak the location of seven computer tapes to an outside party if he had wanted to. Parker said the FBI has found no flurry of intelligence activity, as warned in December, aimed at finding the tapes. Lee has sworn the tapes were destroyed.
Parker said Lee, accused of circumventing Los Alamos National Laboratory's electronic security "partition" and downloading data in 1993 and 1994, left the data on his unsecured computer with "rather obvious filenames" for more than five years until 1999.
"Then, when Dr. Lee decided to erase the files from the open partition, he did so with the assistance of the LANL computing help desk," the judge said -- and did so with the apparent awareness that the lab's computer monitoring system would notice it.
The government, Parker said, "has never presented direct evidence that Dr. Lee intended to harm the United States or to secure an advantage for a foreign nation." Prosecutors must prove those two elements to convict Lee.
Circuit Judges David Ebel and Danell Tacha halted Lee's release with a stay that caught Parker off guard. The judge said he had been about to refuse the government's request for a delay and to order Lee sent home on bail in time for the Labor Day holiday weekend.
Lee's lawyers said they were drafting a response Tuesday to the prosecutors' appeal. They already had asked the Circuit Court to reconsider its stay.
Betsy Shumaker, chief deputy clerk of the Circuit Court, said the court issued no immediate decision Tuesday. She said the judges hadn't indicated yet whether they would hold hearings on the case.
"Within the next day they may make a decision on that. I expect something fairly soon," she said.
Steven Aftergood, a government secrecy expert with the Federation of American Scientists, said Lee should not expect much help from the 10th Circuit.
"On national security matters, the courts have been sheep led around by the government," Aftergood said Tuesday in Washington, D.C.
"Judge Parker in that regard is an exception," he said. "He is not cowed by the extreme claims offered by the prosecution."