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Albuquerque Journal
Saturday, August 26, 2000

Lee Ruling Challenges Prosecutors

By Ian Hoffman Journal Staff Writer

U.S. District Judge James A. Parker has yet to detail his rationale for ordering Los Alamos scientist Wen Ho Lee's release from jail to house arrest.

Yet his ruling Thursday was greeted by some as a rejection of the very prosecution claims that lie at the heart of the government's case: the idea that Lee assembled for a foreign nation the "crown jewels" of U.S. nuclear-weapons science, capable of throwing the world into peril.

At the least, Parker signaled he saw a genuine "philosophical" debate among weapons scientists. Defense and prosecution scientists offered the judge radically different views of the value of Lee's downloads of weapons data. On one hand, the data is already widely available and of marginal use to a nation seeking new or more devastating nuclear arms; on the other, the data could "change the global strategic balance."

In a criminal case where reasonable doubt dictates acquittal such a stark face-off among equally credentialed weaponeers may bode poorly for the prosecution.

"The judge's decision has implications far beyond where Wen Ho Lee is physically located," said Steven Aftergood, a government secrecy expert at the Federation of American Scientists in Washington, D.C. "He has implicitly repudiated the idea that the crown jewels of our nuclear program were at stake and that Wen Ho Lee is some kind of superspy just waiting for the right moment to divulge them to a foreign government."

Instead, "he's not a superspy and they're not supersecrets," Aftergood said. "It's a big, black eye for the prosecution."

Federal prosecutors were relying on the ostensibly ultra-sensitive nature of Lee's portable tapes of weapons data to help persuade jurors that he intended to harm the United States or aid a foreign nation. Proof of that intent is crucial to 39 of the charges against Lee that carry a potential life sentence.

Last week, lead prosecutor George Stamboulidis said Lee and his tapes were an "immediate danger. It's of a caliber where hundreds of millions of people could be killed."

But if prosecutors fail to persuade a judge that Lee's intentions were sufficiently threatening to keep him in jail, how likely are they to persuade every member of a jury to convict him on life-penalty offenses?

"With such a terrible thing, a jury wouldn't need much convincing on his intent," said retired Los Alamos weapons and computer scientist Walter Goad, who gave a sworn statement in support of Lee's defense. "It's my speculation that having these notions challenged would also affect the trial in the opposite way."

"It certainly doesn't sound like the crown jewels we used to hear about," said Harvard law professor and defense attorney Alan M. Dershowitz. "You must always resolve doubts in favor of the defendant. And a much higher degree of certainty is needed in criminal cases."

As of last week, prosecutors said they were open to loosening the terms of Lee's jailing, by allowing him a wider array of fruit and exercise equipment. Letting him go was out of the question. It remained unclear Friday whether they will appeal Parker's order of release, which is expected to keep Lee at home in White Rock under extraordinarily tight surveillance and such conditions as FBI searches of his wife whenever she leaves or returns to the house. The FBI has estimated it would need 100 agents to keep watch on Lee's house and his communications.

Legal experts say prosecution chances of a successful appeal are extremely low. To overturn Parker's ruling, prosecutors would have to show he abused his discretion and issued a ruling squarely at odds with the evidence. That calculation is likely to weigh on the U.S. Department of Justice here and in Washington as prosecutors choose their course.

The telling moment comes Tuesday, when Parker is expected to lay out his reasoning and consider the exact conditions to be imposed on Lee's freedom. At that point, prosecutors may ask Parker to delay the effect of his ruling, pending an appeal. But such a stay would likely be short and tough to win without some prospect of success, Dershowitz said.

"It's very difficult on bail determinations, when a judge makes factual determinations, to overturn it on appeal," he said.

Justice Department officials also might consider public opinion in deciding on an appeal of his release. In the past week, some of the nation's most influential newspapers argued Lee should be freed from jail, saying the prosecution's case suffers too many flaws to deny him bail.

"Given the government's misrepresentations and new evidence suggesting the case against him is weaker than first thought, fairness demands he be granted bail while he awaits trial," wrote The New York Times.

"The spying allegations against him are weak and getting weaker all the time," argued the St. Louis Post-Dispatch. "Mr. Lee may have made serious mistakes in his handling of nuclear secrets and could end up serving time in prison for those mistakes. But the government has not shown Mr. Lee will endanger Americans if he is released before trial. To keep him locked up smacks of anti-Asian bias and sends a chill through the scientific community."

Almost no fact has changed in the eight months since Parker last denied bail for Lee, except for an FBI agent recanting key pieces of testimony that incorrectly suggested Lee was secretive and deceiving.

"If he is granted bail now, he could have been granted bail in December," said Dershowitz. "And every day he remains in detention is a continuing violation of his constitutional rights."

Still, Aftergood said he would not be surprised if prosecutors appealed Parker's ruling.

"To make the kind of argument they've made, they have to be true believers," he said. "It's clear they are tone deaf, and they don't understand what just happened. What happened is the judge just said they have failed to justify their position."

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