Lee case: bold threats, shrinking investigation

He'd failed the polygraph. That's what the FBI agents told him, anyway. So what if he said he was innocent? He was stonewalling, like Julius and Ethel Rosenberg, who were charged in 1951 with spying for the Soviets.

"The Rosenbergs are the only people that never cooperated with the federal government in an espionage case," one agent told Wen Ho Lee during an interrogation. "You know what happened to them? They electrocuted them, Wen Ho."

With that extraordinary threat, recounted in a declassified transcript of a March 7, 1999, FBI interview, investigators made it clear to the Los Alamos National Lab scientist that he was in deep trouble.

But Dr. Lee hadn't failed that now-long-ago lie-detector test. The FBI agents were lying, trying to elicit more response. And he won't be tried for spying. He's been charged with lesser, though serious, crimes.

Nearly two years after the matter began, this once-obscure researcher sits in jail, awaiting a trial this fall as his family asks for his release on bail. The case against Lee, meanwhile, has become the incredible shrinking investigation. Call it a post-cold-war spy case, in the sense that it's no longer overtly about espionage at all.

"I believe that if they had a stronger case they would have moved on it," says Steven Aftergood, director of the Project for Government Secrecy at the Federation of American Scientists. "As it is, I think they are charging Wen Ho Lee with more than they can prove."

This doesn't mean that Lee now appears a completely innocent victim. Even his supporters admit that some of his actions were wrong, even mysterious.

Why did he devote 40 hours to downloading nuclear data onto 10 computer tapes? What happened to most of the tapes? Why did he attempt entry into a classified area after his security privilege had been revoked - once at 3:30 a.m. on Christmas Eve?

Lee has offered no explanation. At one point, in his last 1999 FBI interview, he launched into a description of his teenage health problems to justify a 1988 memory lapse.

His lawyers depict him as something of a bumbling pack rat. They point out that he didn't bother to change the file names on some of the data at issue. He called the Los Alamos computer help desk for aid in moving some of the files.

"After four years of exhaustive investigation, the government has absolutely no evidence that Lee ever provided any information to any third party," said defense lawyer Mark Holscher at this week's bail hearings in Albuquerque, N.M.

And after three days of bail hearings this week, in which family and friends have pleaded for Lee's release on a multimillion-dollar bail bond, it is clear that even the importance of the information that Lee horded may remain at issue.

Early in the case, some investigators talked about the testing codes and other data on Lee's tapes as "crown jewels" of the nuclear era. This week, the assistant attorney general prosecuting Lee, George Stamboulidis, told a federal district-court judge that eventually "hundreds of millions of people could be killed" because of the scientist's actions.

But the defense was able to call a number of fellow nuclear experts who disputed whether the codes were important - and, indeed, whether they were even difficult to find.

An affidavit from Harold Agnew, a former director of the Los Alamos National Lab, said that the codes would be of little use to other nations for the development of their own weapons. "Further ... this information has been widely available in the open literature," read the affidavit.

The prosecution's case has been further damaged by its own missteps.

Prosecutors have emphasized that Lee failed to tell the FBI about a key 1988 meeting with Chinese scientists in a hotel room during an authorized trip to Beijing. Yet defense lawyers recently showed that Lee mentioned the meeting to his superiors in a written report on the trip.

And FBI agent Robert Messemer was forced this week to recant an assertion that Lee had lied when borrowing a colleague's computer to download his trove of data onto portable tapes. Lee had not, as Mr. Messemer first said, told the colleague he was simply going to write his rsum.

Is Lee the victim of selective prosecution because he is an Asian-American?

That is what Asian-American legal organizations assert. They say that recent congressional investigations into Chinese espionage and military development have created the climate that led to Lee's arrest.

And if Lee is granted bail now, after having been denied it on previous occasions, it will mean that the case against him is beginning to fall apart, some analysts say.

"To me, it would suggest some prosecutorial misconduct which might lead to eventual dismissal," says Mr. Aftergood.

(c) Copyright 2000. The Christian Science Publishing Society