August 25, 2000
TERENCE SMITH: Wen Ho Lee, the Los Alamos scientist charged with mishandling classified nuclear weapons information, will be set free on $1 million bail next week. A judge presiding over his case made the ruling yesterday. For an update, we turn to Walter Pincus, who has been covering this story for the Washington Post. Walter, welcome.
WALTER PINCUS: Thank you.
TERENCE SMITH: Why now? This man, Wen Ho Lee has been in jail in virtual solitary confinement for eight months. And now the judge has changed his mind and decided to let him out on bail. Why?
WALTER PINCUS: Well, in the two previous hearings, Judge Parker had been convinced that the information Wen Ho Lee had was so unique and potentially so damaging to U.S. national security, that he couldn't release him for fear somehow Lee could, as both the government prosecutor and the FBI agent who testified said, it could endanger the United States because foreign countries could use that material to build a bomb.
TERENCE SMITH: And the judge believed this because the prosecutor said so.
WALTER PINCUS: The prosecutor said so and also because there was testimony from an FBI agent that Lee had downloaded it clandestinely and had actually lied about what he was doing to one of his colleagues, saying he was using it for a resume. It turned out that's not what the colleague testified. And that was a very key piece of data for the judge this time. Second thing is they brought forward a really respected Los Alamos physicist named John Richter who raised questions about whether the material that Lee had was all that -- not useful -- material that had not been released before. He claimed 99 percent of it was available elsewhere.
TERENCE SMITH: Did that weaken the government's argument?
WALTER PINCUS: It not only weakened the argument for keeping Wen Ho Lee in jail, it has raised questions about what he is going to happen if this actually comes to a court case in front of a jury.
TERENCE SMITH: You say if? You don't think it will.
WALTER PINCUS: Well there's always been a possibility that there would be a negotiated plea agreement. Judge Parker had... has assigned a senior judge to work on what he calls mediation. He hinted before that he was preparing to do something about bail because he wanted to mediate on bail. So I think that there is a clear possibility that, certainly from the judge's point of view, he would like this thing settled before they go to trial.
TERENCE SMITH: Doesn't the government have to prove that Wen Ho Lee not only downloaded sensitive and classified information but that he did so with an intent to harm U.S. interest?
WALTER PINCUS: Harm the United States or help a foreign government.
TERENCE SMITH: Have they presented any evidence to that effect?
WALTER PINCUS: Well, they haven't gotten that specific yet. All they had to do up to now is say there is a probable cause that some of that may have happened. They have made a filing listing eight possible countries that he may have wanted to assist and then more recently took the position that he had downloaded this material. We don't know what happened. To the portable tapes, perhaps to use it in looking for a job because the downloadings came at a time, in the first instance, when he thought he was going to be let go from Los Alamos.
TERENCE SMITH: This information -- his possession of it would in theory make him a more attractive prospect to be hired elsewhere?
WALTER PINCUS: If he was going somewhere where either they have or would like to have a nuclear weapon. It also proved what kind of work he was capable of doing.
TERENCE SMITH: If they go ahead effects week as the Judge indicated he would, and release him on a million dollars bail, there are still some very strict house arrests and surveillance of Wen Ho Lee beginning when he gets out of jail.
WALTER PINCUS: Oh, he is, in effect, under house arrest: electronic monitoring. The only time he can leave is in case of a medical emergency. Even in that case he can only be taken to the Los Alamos medical facility. And he has to be taken by the couple who live next door who are, in effect, the people responsible for making certain he shows up at trial.
TERENCE SMITH: They'll listen to his phone and look at his mail and all of this?
WALTER PINCUS: His children can only come during the daytime hours, and actually those meetings can be attended by a government agent. His wife has to get permission to leave the house; say where she's going, when she's coming back, why she is going. She can be searched on leaving, searched on coming back. It is not freedom.
TERENCE SMITH: The point of all that is?
WALTER PINCUS: There is still a concern that outstanding are seven tapes that he downloaded and has this information. His lawyers have said that he destroyed the tapes. But one of the never ending mysteries of this case is why in the first place he downloaded these tape he has never said, and why or how he destroyed them -- if he did in fact destroy them.
TERENCE SMITH: In fact, Wen Ho Lee has not really told his story.
WALTER PINCUS: He has never told his story himself.
TERENCE SMITH: Why?
WALTER PINCUS: Other than denying that he committed espionage, the story I'm told by his lawyers and others, earlier, was that to say he had downloaded them, even explaining it, would be to admit a crime and it would hurt his defense. So there's a whole question about whether he would testify in fact at a trial.
TERENCE SMITH: What does the government want out of this, in your judgment, having covered this case? Do they want a conviction or do they want information? What do they want?
WALTER PINCUS: I think there are two things that you always find in this kind of case: Espionage or alleged espionage; particularly when there's data missing. And the first thing the government wants to know is its vulnerability. They really want to know where the information is, whether those tapes have been seen by anybody, whether he's passed them on. They want to know what potential damage they face. And the second part of it is you can't... as I looked at it originally, you can't just let him off if he tells you that because there's a precedent. They do have rules. He did knowingly violate very serious regulations, and if there's no penalty to him, you're just opening the door for a lot of other people.
TERENCE SMITH: But of course he has already spent eight months in prison, and in theory in a plea-bargain, that would be taken into consideration?
WALTER PINCUS: Of course. And now with the government's case, much question, based on this competition of experts, is to evaluate... their case depends on how valuable the information is in everybody's mind. And if it turns out it's going to be one expert against the other, a jury would find that tough to take. So the government, I think is much more likely now to look for some kind of settlement. It could be that Wen Ho Lee's lawyers, seeing the possibility that he may be found innocent, even though he did download it, there is no doubt about that -- he may be found innocent -- they may want to go for a trial and be found not guilty of the charges, of intentionally doing it, because if he is set free, it clears his record. Plus he also could get his legal fees paid.
TERENCE SMITH: Right. So the case really only gets more interesting.
WALTER PINCUS: This is a fascinating case.
TERENCE SMITH: Walter Pincus, thanks very much.
WALTER PINCUS: Thank you.