The lessons of the fizzled Wen Ho Lee spy case

All but one charge is dropped, but lab security is still a concern.

The Wen Ho Lee case could be one of the most important government nuclear-security investi-gations of the post-cold-war era - despite the fact that it is ending with a whimper, not a bang.

That's because it has pointed out the need for new approaches to everything from lab secrecy rules to how the FBI identifies espionage suspects. A probe that critics say was bungled from the beginning may, in the end, result in better methods for keeping true atomic secrets under lock and key.

"There are lots of important issues raised here that have barely begun to be addressed," says Steven Aftergood, director of the Project for Government Secrecy at the Federation of American Scientists.

Among the most pressing:

*What nuclear data really do need to be kept secret? Government

prosecutors initially described the nuclear-testing data that Dr. Lee had downloaded onto personal tapes as the "crown jewels" of US secrets. But some lab professionals later testified that the data would be of little use to an adversary - and, in fact, was widely available in publications.

*Does racial profiling have a place in counterespionage? Civil rights groups have charged that Lee was unfairly targeted for investigation in the first place because he is Chinese-American. Government officials acknowledge that they have used racial profiling in counterespionage in the past. But some are unapologetic, saying that China and other nations target ethnic natives when trying to recruit American spies.

"We hope there will be a continuing examination of whether there are discriminatory practices at the Department of Energy," says Margaret Fung, executive director of the Asian American Legal Defense and Education Fund in New York.

*How tight should security be at the national labs? The Lee investigation - plus a subsequent lost-and-found episode involving misplaced computer hard drives containing secrets - pointed out that security procedures were not being followed as tightly as they could be at the Los Alamos National Lab in New Mexico. The labs have long struggled to balance a culture of scientific openness with the need to keep nuclear secrets, and Los Alamos director John Browne has said that this difficult year has helped the lab by forcing a reexamination of this balance.

Others have criticized this reexamination, saying that a new culture of security has hurt lab efforts to recruit top scientific talent.

"This has had a chilling effect on the labs," says Mr. Aftergood. "There's an unstated fear among scientists [looking at the Lee prosecution] that 'this could happen to me.' "

The government's case against Lee ended with stunning speed. At time of writing Monday, the former Los Alamos scientist was set to agree to a plea bargain in which he would be set free in exchange for pleading guilty to one charge of downloading classified material onto an unsecure computer.

Fifty-eight other felony counts against Dr. Lee would be dropped. His sentence will be time served, with no fine or probation.

Government lawyers were trying to put the best face they could on the deal, which represented a dramatic turnaround of their efforts. By reaching a plea bargain, they said, they avoided open discussion of sensitive nuclear secrets in court. And as part of the agreement, Lee has promised to give more details about what he says is his destruction of seven missing computer tapes containing the downloaded secrets.

Lee also agreed to sign a statement saying that the government had a right to pursue the matter of the downloaded material in the first place. US officials hope that this might help defuse the sensitive racial-profiling issue.

Initial reactions indicated that this hope may be unfounded. As part of his defense, Lee has filed a civil suit against the government for violating his privacy rights by publicly releasing polygraph results and other documents against his wishes. If he continues to pursue this case, the Asian-American community in the US will likely stand behind him and fund his efforts.

Asian-American groups have already donated some $400,000 toward Lee's legal costs, notes Ms. Fung.

"He has tremendous community support," she says.

LEE had been scheduled to go to trial in November. In recent weeks, the case against him had been damaged by increasing doubts about the value of the data he had downloaded, and by an FBI agent's admission that his own testimony about Lee's dealings with colleagues had been misleading.

In the wake of these events, US District Judge James Parker reversed himself and granted Lee bail last month. A quick appeal by the government had kept Lee in prison - but because Judge Parker was set to preside over Lee's trial, many observers had begun to doubt that the government would ever be able to convict the former Los Alamos national lab scientist.

(c) Copyright 2000. The Christian Science Publishing Society

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