For me the most persuasive evidence that Wen Ho Lee was innocent of the wild spying charges lodged against him came hours after his release from jail, when he returned to his standard-issue tract house in the White Rock suburb of Los Alamos, New Mexico: It was the sight of all those neighbors and co-workers from the lab bringing over plates of potato salad and cold cuts to celebrate his freedom. These were the people who knew Lee and the inner workings of the weapons lab, and they had been there to support him throughout his ordeal, even when established human rights and civil libertarian groups had remained silent. His next-door neighbors, the Marshalls, both hold the highest security ratings; they had offered to pledge their house as bail.

Lee was a product of the lab’s culture, and whatever his motive in downloading certain files, his co-workers knew that no one had ever been criminally prosecuted for such an act. It was not all that unusual for intellectually distracted scientists like Lee, who managed to begin writing a mathematics book while in solitary confinement, to be careless with the data that formed the clay they played with daily. Above all, they knew in their bones that Wen Ho Lee, their neighbor, was no spy.

Still, I was apprehensive at being introduced to Lee that evening. For one thing, there is always trepidation at finally meeting a person about whom one has written so much. In Lee’s case, I’d done more than a dozen Op-Ed columns for the Los Angeles Times, being the first to challenge a spy story driven by the New York Times. Also, Lee had been through a prison nightmare, and I expected to find a broken man. Instead, I found a person still in shock but grateful, with a smile that suggested he was very much at peace with himself.

Yet Lee’s ordeal had been real, and while that evening was not the time for him to go into it, he made it clear that it had been a harrowing experience. Imagine a man who has never been in trouble with the law suddenly detained in a tiny cell without a window or even bars to look through. “There was a peephole in the door, and there was someone who sat outside, and who was watching him and taking notes,” recalls his Albuquerque attorney, Nancy Hollander, who visited him often in jail. “And you have to understand: Not only are they watching him eat and sleep, they’re watching him use the toilet.” His cell would change, but never the twenty-four-hour-a-day light or the shackles–hands and feet linked to a chain around his waist–that he wore during his one hour of permitted exercise, on the occasions he got to talk with his lawyers and during brief visits with his wife.

Hollander has spent decades representing the most hardened of criminals, but still, she says, she was shocked: “I’ve had murder clients, drug clients, clients accused of taking millions of dollars from the federal government, you name it, but I’ve never had a client treated like Wen Ho Lee.”

A recent Washington Post article quotes one government insider as expressing the opinion that the decision to hold Lee under these circumstances was an attempt to break him. They weren’t able to, and instead, it was the FBI and the US Attorney General who had to back down because, as the Post reported, they were convinced that the admitted deceptions in the case, including those used to make the case against bail, had turned Judge James Parker against them. Parker had gone along with the prosecutors for nine months, but eventually he was revolted by these deceptions. He saved the day, first by ordering that the government turn over evidence of racial profiling in targeting Lee, as well as potentially incriminating documents regarding the FBI’s behavior; and second, by ordering Lee released on bail. In the end, Judge Parker made a broken judicial system work and sternly condemned those who had done it so much damage.

I: Here Comes the Judge

What a moment it was to sit in the Federal District Court in Albuquerque on September 13 and hear Judge Parker, a conservative Reagan appointee, say: “I sincerely apologize to you, Dr. Lee, for the unfair manner [in which] you were held in custody by the executive branch.” Parker described Lee’s imprisonment to a hushed courtroom as having been under “demeaning, unnecessarily punitive conditions,” and he said that he was “sad and troubled because I do not know the real reasons why the executive branch has done all of this.”

What is known is that the government’s case against Lee crumbled, with the government agreeing to dismiss fifty-eight of fifty-nine counts that had been lodged against Lee, who faced life imprisonment for intending to betray the national security of the United States. Suddenly the government, which only a week before had said Lee’s release could risk “hundreds of millions of lives,” was willing to let him go for time served. As for Lee, the nine months of harsh imprisonment had taken their toll, and he was willing to plead guilty to a single felony count of mishandling classified data–a charge that defense lawyers might have been willing to settle on even before there was an indictment.

Parker went on to tongue-lash “the top decision makers in the executive branch,” who, he said, “have embarrassed our entire nation and each of us who is a citizen of it.”

I filed out of the courtroom with my media colleagues, who spoke of their eyes having welled up with tears at the judge’s remarks but of feeling proud that the system had worked once again. As the judge had said, “The executive branch has enormous power, the abuse of which can be devastating to our citizens,” and in this case it had been checked. That’s how the story got reported.

But once I was outside in the bright heat of an early desert afternoon, it seemed outrageous that yet again the media were leaving out their own responsibility in the creation of this wicked tale. The torment of Wen Ho Lee did not begin in December of 1999, with his indictment and arrest, but rather the previous March, when the New York Times, the most respected media outlet in the country, laid out a tale of atomic spying that has been proved wrong on virtually every count, but that launched a witch hunt ending in Lee’s incarceration [see Bill Mesler, “The Spy Who Wasn’t,” August 9/16, 1999].

There are too many low points in the history of this nation’s journalism to permit one easily to employ superlatives about the Times‘s startling transgression. I don’t know if it makes the all-time Top Ten list, but the trial and conviction of Lee in the pages of the Times–both in its news columns and on its editorial page–is certainly right up there. A leak from a Congressional committee chaired by California Republican Christopher Cox regarding the alleged theft of secrets about the W-88 nuclear warhead (a sophisticated, miniaturized bomb that fits on a MIRVed launcher) by Chinese spies–a nonevent that was never substantiated and was scoffed at by most experts–along with the contentions of a controversial and much-disputed source, was used by the newspaper to smear a Taiwan-born US citizen singled out for vilification simply because of his ethnic background.

Of course, the Times couldn’t have done it alone. But what makes this primarily a media story is that without the backing of the Times, whose stories set the tone for TV journalism, not much of anything would have happened. If properly vetted through the normal channels, the case, based largely on the zealous pursuit of Lee by one disgruntled former government security sleuth and amplified by the ambitions of a right-wing Congressman, would have come to naught. Instead, the Clinton Administration, recovering from impeachment and mired in a campaign finance scandal linked to Asian funds–including the charge that Beijing had secretly funneled money to the Democrats–panicked. Cowed by its fear that the China issue could be used effectively against Gore in the election, the Administration was willing to play along, and it did so through its Energy and Justice departments.

Lee sat in jail for one reason and one reason only: The Administration wanted to prove to its critics that it was tough on Chinese spying, whether or not that spying existed and whether or not it had anything to do with Wen Ho Lee. In the end, the spy hysteria whipped up by the Cox committee and the Times has taken a terrible toll on the life of one scientist and has cast suspicion over the entire community of Asian-American scientists, many of whom are now boycotting employment in the nuclear weapons labs.

The assumption that Lee, whose roots are in Taiwan and who has no relatives on the mainland, would be the prime target of an investigation simply because of his skin color and ethnic identity has sent shock waves through the Asian-American community. The leading support for Lee has come from the Committee of 100, made up of highly influential Chinese-Americans alarmed that their entire community has been scapegoated as disloyal.

All the more bizarre, this resurfacing of cold war imagery occurred at a time when China was moving as fast as a nation possibly can down what Mao Zedong would have condemned as the capitalist road. The same week Wen Ho Lee was released, Congress approved permanent normal trade relations with China with overwhelming bipartisan support. Yet there were Attorney General Janet Reno and FBI Director Louis Freeh still claiming that Lee was a great risk to the nation.

While Reno and Freeh defended their handling of the case before Congress, the New York Times, in one of the most contorted editors’ notes in that paper’s history, and on its editorial page two days later, defended its journalism in the Lee case while offering up some faint notes of apology. But like the ravings of an addict promising to abstain, the Times again committed egregious distortions in the very editors’ note intended to set the record straight. For one thing, the September 26 note implied that Lee might have had something to do with espionage and also with the theft of information critical to building the W-88 warhead, even though he was never charged with either offense.

Most unbelievable was one sentence that was so ingenuously dishonest as to be worthy of the most effective editorialist for Pravda in the bad old days. The Times editors wrote that at the time of the newspaper’s first story, “Dr. Lee had already taken a lie detector test; FBI investigators believed that it showed deception when he was asked whether he had leaked secrets.” The fact is that in December of 1998, three months before the Times‘s first story ran, Lee had passed an Energy Department lie-detector test with flying colors. What the note would seem to indicate is that the Times still could not acknowledge a single piece of evidence pointing to Lee’s innocence.

In its very long editorial admitting to some errors, most important is the admission that “we find that we too quickly accepted the government’s theory that espionage was the main reason for Chinese nuclear advances and its view that Dr. Lee had been properly singled out as the prime suspect.” But then the editorial quickly segues into a non-sequitur argument about the need for increased security at the weapons labs. Sure, and it could probably save on its electricity bill with more prudent management as well. What the Times editorial never explains is why the paper uncritically accepted the leaks from the Cox committee as truth. Why did the newspaper ignore the massive amount of evidence in the scientific and intelligence commu- nity suggesting that Chinese nuclear weapons gains were very slight and could easily have been the product of the country’s own internal research, and that in any case, China is a full four decades behind the United States and no threat in any way as a nuclear power? To this day the Times editorial page will not concede that the big scare of a growing Chinese nuclear power, which fueled the hunt for a spy, is bogus.

II: The Times Gets Its Man

The media nightmare for Lee began with a 4,000-word front-page Times story on March 6, 1999, under the shocking headline: “Breach at Los Alamos: A special report; China Stole Nuclear Secrets for Bombs, US Aides Say.” It was written by two of the newspaper’s more aggressive investigative reporters: Jeff Gerth, who won a Pulitzer Prize for reporting the alleged transfer of satellite technology to China (a controversial report that triggered the Cox investigation), and James Risen. The opening paragraph–never mind that it was false–stated, “Working with nuclear secrets stolen from an American Government laboratory, China has made a leap in the development of nuclear weapons: the miniaturization of its bombs, according to Administration officials.” This “breakthrough,” the story claimed–also incorrectly–“was accelerated by the theft of American nuclear secrets from Los Alamos National Laboratory in New Mexico.” The story noted dramatically, “At the dawn of the atomic age, a Soviet spy ring that included Julius Rosenberg had stolen the first nuclear secrets out of Los Alamos. Now, at the end of the cold war, the Chinese seemed to have succeeded in penetrating the same weapons lab.”

The reporters relied heavily on unnamed sources and one named source, Notra Trulock, the former Energy Department Director of Intelligence, who had been involved in the Wen Ho Lee investigation. They credited Trulock with being the “star witness” at the Cox Congressional hearings. The Times described him as a “whistleblower” ignored by a Clinton Administration devoted to maintaining good ties with Beijing at any cost. Trulock’s secret testimony, leaked to the Times reporters, was taken as unquestioned gospel and formed the basis of the newspaper’s claim that China had stolen the secrets for the advanced W-88 warhead, an incident that the Times charged had led to what “senior intelligence officials regarded…as one of the most damaging spy cases in recent history.” A simple background check on Trulock might have raised red flags about his motives in the case and his credibility as a source, but that would be revealed only later, by other reporters.

Gerth and Risen went on to chastise the Administration for not properly addressing what they alleged was a most egregious security leak: “A reconstruction by The New York Times reveals that throughout the Government, the response to the nuclear theft was plagued by delays, inaction and skepticism.” The Times bemoaned the fact that after three years of investigation “no arrests have been made” and that the key suspect had been allowed to keep his high security clearance for more than a year after he’d been tagged a spy. They went on to identify the likely culprit, although withholding his name: “Only in the last several weeks, after prodding from Congress and the Secretary of Energy, have Government officials administered lie-detector tests to the main suspect, a Los Alamos computer scientist who is Chinese-American.”

Two days later, that suspect was revealed to be Wen Ho Lee. Lee was abruptly fired from his job at Los Alamos after three days of grueling questioning.

Because several errors were so widely reported in the media and will haunt Lee even though the government’s case crumbled, it is important to dissect each of them. To begin with, there is no conclusive evidence that China stole the secrets to the W-88 warhead, and the consensus of experts in the field is that spying, if it occurred, was not decisive to China’s still minuscule and primitive nuclear program. That was the conclusion of a June 1999 report by the President’s Foreign Intelligence Advisory Board, headed by former Republican Senator Warren Rudman. The board report concluded: “This information had been widely available within the U.S. nuclear weapons community, including the weapons labs, other parts of D.O.E., the Department of Defense, and private contractors, for more than a decade. For example, key technical information concerning the W-88 warhead had been available to numerous U.S. government and military entities since at least 1983 and could well have come from many organizations other than the weapons labs.”

This was also the consensus in another Times cover story, reported five months after the original Gerth/Risen article, by William Broad, the paper’s leading expert on nuclear weapons, which shredded the assumptions of the earlier Gerth/Risen stories. Broad interviewed Robert Vrooman, who was head of counterintelligence at Los Alamos during the investigation of Lee, who said a description of the W-88 had been widely disseminated. “A rather detailed description of the W-88 had a distribution of 548 copies,” he said, adding, “Please note that I am referring to 548 mailing addresses, not people.”

Even the original Gerth/Risen report stated that the CIA did not accept Trulock’s dire assessment: “Trulock’s briefing was based on a worst-case scenario, which C.I.A. believes was not supported by available intelligence. C.I.A. thinks the Chinese have benefited from a variety of sources, including from the Russians and their own indigenous efforts.” But that assessment was treated in the story as a minor caveat.

Trulock’s sensational charges were based on what the Times story termed “an intelligence windfall from Beijing.” In June of 1995, a Chinese official gave CIA analysts a document that, according to the Times, “specifically mentioned the W-88 and described some of the warhead’s key design features. The Los Alamos laboratory, where the W-88 had been designed, quickly emerged as the most likely source of the leak.” And, of course, that is where Lee worked.

What the Times reporters either did not know or care to mention was that the CIA had quickly concluded that the Chinese official was a double agent still working for Beijing, and that the document had been planted for some devious purpose such as to impress Taiwan that Beijing might modernize its nuclear force. It also turned out that while the document was an authentic duplication of some design calculations, it contained several signature errors that had been made in the weapons design process after the W-88 had left Los Alamos and was being worked on at Lockheed Martin and at the Sandia National Laboratories in New Mexico. Lee had no connection with that document, and as a result of that discovery and the fact that there was not a scintilla of any other evidence linking Lee with the theft of W-88 warhead secrets, at the time of his indictment in December of 1999 Lee was no longer a target of an investigation concerning the W-88. So much for the main evidence.

The rest of the Times‘s original indictment against Lee was at best circumstantial and again does not withstand serious scrutiny. First among those distortions was the suggestion that Lee had failed a lie-detector test. As the Times‘s original account put it, “Energy gave the suspect a polygraph, or lie-detector test, in December. Unsatisfied, the F.B.I. administered a second test in February, and officials said the subject was found to be deceptive.”

As noted, Lee, willingly and without legal advice, took that polygraph–ordered by an Administration under pressure from the Cox committee to do something about alleged Chinese spying–on December 23, 1998. The test asked four basic questions: “Have you ever committed espionage against the United States? Have you ever provided any classified weapons data to any unauthorized person? Have you had any contact with anyone to commit espionage against the United States? Have you ever had personal contact with anyone you know who has committed espionage against the United States?”

Lee’s answer to all four questions was a definitive “No,” and the polygraph expert conducting the test concluded, “I am of the opinion [that] this person was not deceptive when answering the relevant questions pertaining to involvement in espionage, unauthorized disclosure of classified information and unauthorized foreign contacts.” The manager of the polygraph test center, under contract to the Energy Department, also reviewed the result and stated that his judgments “concur with the Examiner that upon completion of testing the Examinee was not deceptive when answering the relevant questions.”

According to CBS News, which later looked into the matter: “The polygraph results were so convincing and unequivocal, that sources say the deputy director of the Los Alamos lab issued an apology to Lee, and work began to get him reinstated in the X-division. Furthermore, sources confirm to CBS News that the local Albuquerque FBI office sent a memo to headquarters in Washington saying it appeared that Lee was not their spy.”

Yet when the results of the polygraph test arrived in the FBI’s Washington headquarters, those same results were reinterpreted to conclude that Lee had not passed. CBS raised the question of how the very same polygraph charts could be open to such contrary interpretation with Richard Keifer, chairman of the American Polygraph Association, who is a former FBI agent who ran the agency’s polygraph program. According to CBS News: “We asked Keifer to look at Lee’s polygraph scores. He said the scores are ‘crystal clear.’ In fact, Keifer says, in all his years as a polygrapher, he had never been able to score anyone so high on the non-deceptive scale. He was at a loss to find any explanation for how the FBI could deem the polygraph scores as ‘failing.'”

A second test, in February of 1999, in which Lee later said he had been asked only one question, has never been made available to independent experts. According to the CBS report: “The FBI then did its own testing of Lee, and again claimed that he failed. Yet sources say the FBI didn’t interrogate Lee at this time, or even tell him he had failed the polygraph–an odd deviation from procedure for agents who are taught to immediately question anyone who is deceptive in a polygraph.”

What the CBS story suggested was that the FBI, under pressure from the Administration and/or Congress, was doing all it could to find someone to blame for some breach of security and that Wen Ho Lee, one of the many thousands with access to data concerning the W-88, was singled out as the target of opportunity.

The New York Times had originally planned to run its first story on March 5, but–the newspaper’s executive editor, Joseph Lelyveld, later admitted to the Washington Post–at the request of the FBI, it held off publication for a day. The FBI took advantage of that delay to grill Lee yet again. After publication of the Times story, the FBI conducted another vicious, baiting interview of Lee, which stands as a classic of intimidation. During that interview, two FBI special agents–Carol Covert and John Hudenko–told Lee repeatedly that he had failed both the December polygraph and the February test.

Some excerpts from that session:

FBI:

You’re never going to pass a polygraph. And you’re never going to have a clearance. And you’re not going to have a job. And if you get arrested you’re not going to have a retirement…if I don’t have something that I can tell Washington as to why you’re failing those polygraphs, I can’t do a thing. Lee:

Well, I understand. FBI:

I can’t get you your job. I can’t do anything for you, Wen Ho. I can’t stop the newspapers from knocking on your door. I can’t stop the newspapers from calling your son. I can’t stop the people from polygraphing your wife. I can’t stop somebody from coming and knocking on your door and putting handcuffs on you…. Lee:

…I don’t know how to handle this case. I’m an honest person and I’m telling you the truth and you don’t believe it. I, that’s it…. FBI:

Do you want to go down in history? Whether you’re professing your innocence like the Rosenbergs to the day that they take you to the electric chair?… Lee:

I believe [God] will make the final judgment for my case.

CBS carried that exchange, which is a part of the public record, while the New York Times, which did so much to raise the specter of espionage and first mentioned the Rosenberg precedent, ignored it. Los Angeles Times reporter Bob Drogin later wrote that agent Covert, who had been asked to take a crash course in hostile interviews before meeting with Lee, “was so upset after conducting the interview that she took three months’ sick leave and transferred out of the Santa Fe office.”

The Times story contained other half-truths, omissions and falsehoods that helped construct a case against Lee. For example, it erroneously reported that “agents learned that the suspect had traveled to Hong Kong without reporting the trip as required. In Hong Kong, officials said, the bureau found records showing that the scientist had obtained $700 from the American Express office. Investigators suspect that he used it to buy an airline ticket to Shanghai.” He didn’t: The $700 withdrawal was used to permit his daughter, Alberta, to take a tourist trip to the nearby territories.

Some investigators. Lee’s trips to China were made at the suggestion of his superiors at the Los Alamos laboratory, to whom he gave a full report upon his return.

Fortunately, somewhere between the Times attack on Lee and the government’s move to indict him, Lee obtained highly competent legal counsel. Soon after the horrendous March 7 interview with the FBI, in which he was threatened with death in the electric chair, Alberta contacted a friend who had gone to Columbia Law School. As a result of that contact, Lee obtained the services of a brilliant former assistant US Attorney, 37-year-old Mark Holscher, who had become a partner in the old-line Los Angeles law firm of O’Melveny & Myers, which agreed to take the case on a pro bono basis with Holscher’s bulldog-tough associate Richard Myers II. At the same time, Brian Sun, another former prosecutor with an equally impressive reputation, agreed to represent the family, also pro bono. Sun’s contacts in the Asian-American community elicited most of the financial support that was to help Lee with the cost of investigators and other research. It also led to the hiring of an Albuquerque attorney, John Cline, who had extensive experience in national security cases, including a stint as Oliver North’s attorney, and Cline’s partner, Nancy Hollander, a highly regarded trial lawyer.

The defense team was able to explore the issue of racial profiling and unearthed evidence that it had dominated the hunt for Lee. Indeed, perhaps the most compelling reason for the plea bargain was that the judge approved a defense request by ordering the government to turn over thousands of pages of documents relating to that matter. The material was due to be handed over to the judge days after the plea bargain was accepted.

Gerth and Risen would have done well to investigate their “star witness,” Trulock, the disenchanted Energy Department “whistleblower” who has tracked Lee for four years. The Times presented Trulock as a neutral observer, which was denied by other security experts, who claimed he had been building a case against Lee and was hostile to those who did not view the case his way.

Affidavits filed with the court at Lee’s last bail hearing, just before the prosecution’s sudden end, are devastating. Vrooman, the former head of counterintelligence at Los Alamos, declared under oath that “it is my opinion that the failure to look at the rest of the population [people with access to the same secret data as Lee] is because Lee is ethnic Chinese.” Vrooman added that although there was a list of non-Chinese people with access, “Mr. Trulock made clear that Dr. Lee was his primary suspect.” In a declaration dated June 22, 2000, Vrooman said, “The racial issue surfaced explicitly in comments made by Notra Trulock, the head of DOE’s Office of Counterintelligence, who told me on November 20, 1996 that ‘ethnic Chinese’ should not be allowed to work on classified projects, including nuclear weapons.”

Another devastating affidavit was filed under oath by Charles Washington, former acting director of counterintelligence at the Energy Department and currently a senior policy analyst at the DOE, who stated, “Based on my experience and my personal knowledge, I believe that Mr. Trulock improperly targeted Dr. Lee due to Dr. Lee’s race and national origin.” Washington, a decorated Vietnam veteran with extensive military intelligence experience, concludes:

Based upon my personal experience with Mr. Trulock, I strongly believe that he acts vindictively and opportunistically, that he improperly uses security issues to punish and discredit others, and that he has racist views towards minority groups. I am a black man of African-American origin, and I personally experienced his misconduct, and I know of other minorities who were victimized by Mr. Trulock. At one point I was forced to call outside police officers due to Mr. Trulock’s abusive behavior, and I brought a lawsuit against the Department of Energy based on that incident, as well as other improper conduct by Mr. Trulock. That case was settled favorably to me by the Department of Energy this year with a pay raise, a cash award, restoration of leave, and other incentives.

According to the Los Angeles Times, Washington said Trulock “spat on me.” Trulock is now under investigation by the FBI for allegedly mishandling classified material. Despite all the criticism of Trulock, the New York Times‘s Risen continued to write sympathetically about him and is still trusted by the paper to cover the Senate hearings on the Lee case objectively.

III: The Charges and What Followed

While it was a simple matter to fire Lee, it was altogether more difficult to charge him with espionage or any betrayal of US secrets, since there was absolutely no evidence. Lee had to be charged with something, but what? Once again, in an April 28, 1999, story, Gerth and Risen came through with the charge–again based on leaks from the ongoing investigation–that Lee had improperly downloaded computer files containing nuclear codes. This time their lead was even more frightening than the one in the first story: “A scientist suspected of spying for China improperly transferred huge amounts of secret data from a computer system at a government laboratory, compromising virtually every nuclear weapon in the United States arsenal, government and lab officials say.”

In fact, the material that Gerth and Risen referred to as “secret data” was not classified as secret when Lee downloaded it; rather, it carried the low-level designation “protect as restricted data” (PARD), which meant it could be sent to colleagues through registered US mail. Some of the material was reclassified as “secret” after Lee’s firing, but never as “top secret.” As to “compromising virtually every nuclear weapon in the United States arsenal,” that charge was dismissed as absurd by top weapons experts, who provided affidavits to Lee’s defense attorneys. Former Los Alamos director Dr. Harold Agnew, a top adviser on nuclear weapons to five Presidents, testified that “if the People’s Republic of China had already obtained these codes, or were to obtain these codes, it would have little or no effect whatsoever on today’s nuclear balance.”

When the government finally got around to arresting Lee, in December of 1999, it charged him only with the improper handling of files–and stretched to include the claim that the mishandling had been done “with the intent to injure the United States” and “secure an advantage to a foreign nation.” But the indictment made no reference to the theft of the W-88 warhead data, which had led to his excoriation in the Times, and the prosecutors told the court they did not plan to make the case that Lee ever actually passed any secrets to a person or nation. (By contrast, former Director of Central Intelligence John Deutch, who downloaded some of the nation’s top secrets to his home computer, has not yet been charged with any crime and remains a free man.)

For nine months after his arrest, Lee remained in prison without bail, while his attorneys mounted an aggressive effort to disprove the government’s case against him. Finally, in August, after the lead FBI agent, Robert Messemer, admitted he’d misled the judge on several topics–including the claim that Lee had lied to a colleague to gain access to his computer–and witnesses came forward to say that much of the allegedly secret material was in the public domain, the judge agreed to bail for Lee.

IV: Conclusion

As the government’s case came apart at the seams, more voices were raised in opposition, including The Bulletin of the Atomic Scientists and the Federation of American Scientists. Just before Lee’s release, three of the nation’s four scientific academies, endowed by Congress, demanded that Lee be given bail. That call even came to be echoed by the New York Times in a strong editorial, which noted that the judge had been lied to by the FBI on key aspects of the case in rendering his initial ruling denying Lee bail.

Judge Parker’s decision to grant bail, which turned out to be moot because of the plea bargain in the case, was accompanied by a seventeen-page document that demolished key aspects of the government’s case. As New York Times reporter James Sterngold summarized Parker’s view: “The opinion is important in part because it casts deep doubts about many of the government’s assertions about Dr. Lee’s supposed deceptiveness and the value of the secrets he is accused of downloading, issues at the heart of the prosecution’s case.” And at the heart of the original New York Times reporting, one might add, not to take anything away from Sterngold’s stellar reporting once he was assigned to the story.

Parker’s words are worth quoting because they cut through all the hysteria about the losses to the US nuclear arsenal, which he himself had accepted in originally denying Lee’s bail request. He cited, with apparent agreement, one top weapons expert who referred to the government’s original claim that Lee had downloaded the “crown jewels” of America’s nuclear program as “unbridled exaggeration.”

On the matter of motive, the judge pointed out that the government had shifted its case from the claim that Lee was a potential, if not an actual, spy out to hurt the country’s national security to the lame argument that he might have been attempting to burnish his credentials for future civilian employment in light of threatened massive layoffs at Los Alamos.

I have always believed this to be the most likely explanation for Lee’s actions. During years of covering the labs for the Los Angeles Times, I frequently encountered complaints from scientists working there that they paid too heavy a professional price for not being able to share their work for public peer review, which is the basis of advancement in the academic world. The Los Alamos and Livermore labs are administered by the University of California, and most of the scientists are regarded as university faculty, but because of the secrecy requirements, they are forced to keep their best work hidden. Most of the time, that work is unnecessarily classified, and scientists must engage in heroic efforts to get it declassified for publication. Ironically, that is Trulock’s problem right now, as he seeks to publish his own account of this escapade.

The government’s case boiled down to nothing more than the possibility that Wen Ho Lee was attempting to gather evidence of his work in the hopes of securing employment at research institutes in non-Communist countries such as Germany and Switzerland. Even that claim proved to be false, however, when an FBI witness testified that there is no evidence that Lee mailed any such material or that any institute ever received it. Even if Lee had sought to use the data for that purpose, he might have intended to have it declassified first, before sending it out. But in any case, as Judge Parker stated, “enhancing one’s résumé is less sinister than the treacherous motive the government, at least by implication, ascribed to Dr. Lee at the end of last year,” when bail was denied.

From the crown jewels to an enhanced résumé. Quite a shift. None of this would have happened had the Times not been willing to broadcast leaks fed to its reporters by federal and Congressional investigators with a political agenda. Whether the goal was to nail Clinton on the campaign contributions issue or to revive the cold war with China, none of this had to do with the real concerns of national security.

Whatever Lee’s transgressions, they do not involve issues of spying but only sloppiness in handling data. But to equate sloppiness with spying and to incarcerate a man for nine months under abysmal conditions in the hope that he will confess to something truly subversive is a clear violation of the standard of due process on which this country prides itself and which it seeks to export.

If this had happened in another country, there would have been a great outcry from human rights circles. But only late in the day did leading scientific organizations speak up, while human rights organizations failed to show they cared one whit about what has been a modern Dreyfus case. It is a sad confirmation of the hold of national security hysteria even now that so much dangerous mischief could have continued for so long, more or less unchallenged, by those who should know better.

As for Wen Ho Lee, the scientist came away thankful for a legal system in which the damage to him was limited by an ultimately courageous judge and a hopelessly bungled government case. But no one who cares about freedom of the individual in the face of abusive government power should ever forget how arrogant the FBI can be when backed by the shoddy reporting of this nation’s premier newspaper. This was chillingly demonstrated on March 7, 1999, when Lee’s FBI interrogators brandished the previous day’s New York Times story as a weapon to threaten him:

FBI:

Do you think that the press prints everything that’s true? Do you think that everything in this article is true? Lee:

I don’t think [so]. FBI:

The press doesn’t care.