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Spy case hangs up over plea bargain


WASHINGTON - The case of Wen Ho Lee burst onto the public stage 18 months ago with the chilling allegation that a Taiwanese-born scientist had downloaded the designs of the entire U.S. nuclear arsenal onto computer tapes that were nowhere to be found.

It now appears to be ending quite differently, with Asian-Americans angrily charging the government with racial bias, experts accusing agents of failing to grasp the science underlying their accusations, and a demoralized Los Alamos National Laboratory struggling to return to normal.

After nine months in solitary confinement, Lee, a nuclear weapons engineer, was supposed to walk out of a New Mexico courtroom yesterday a free man. But as federal prosecutors and Lee's attorneys haggled over a plea agreement, Judge James A. Parker announced that the plea hearing would be delayed until tomorrow.

"I must regretfully say that we cannot proceed with the hearing this afternoon," Parker said from the bench. The judge did not elaborate, though sources said the negotiations are continuing.

Still, the shape of the plea agreement emerged Sunday when Lee, once portrayed as a traitor who might have handed China the "crown jewels" of the U.S. nuclear arsenal, was offered the deal of pleading guilty to just one of the 59 felony counts brought against him. Under the agreement outlined by government sources, Lee would confess to improperly retaining classified nuclear weapons data and accept the sentence of 275 days that he has already served while awaiting trial.

In exchange for his freedom, Lee would agree to explain why he downloaded reams of classified computer data onto unsecured computers and then copied that information onto 10 computer tapes. The government also wants to know what happened to seven tapes that have disappeared.

"The issue here is - are we getting the tapes back and do we find out what happened to those tapes. I think that is the key," Energy Secretary Bill Richardson said yesterday. "The plea bargain enables us to get that information."

The Lee case drove a wedge between much of the scientific world and the federal security apparatus. It also deeply divided the nuclear weapons community.

Steven Younger, Los Alamos's assistant director for nuclear weapons, testified early this year that the computer codes downloaded by Lee could jeopardize nothing less than the "global strategic balance" of power. Paul Robinson, director of the Sandia National Laboratories in Albuquerque, testified that releasing Lee on bail was equivalent to "betting the country."

But a slew of eminent physicists took the opposite position, decrying those statements as at least exaggerated, at most, "hysterical."

Harold Agnew, a former Los Alamos director who has advised five presidents on nuclear weapons issues, submitted an affidavit declaring his "firm conclusion" that even if the Chinese obtained all of Lee's computer tapes, "it would have little or no effect whatsoever on today's nuclear balance."

Testifying before Parker's court, John Richter, a retired nuclear weapons physicist who recently left the Department of Energy's intelligence division, said that 99 percent of the data in Lee's tapes are openly available in scientific journals, nuclear watchdog publications, even the Energy Department's unclassified library in Oak Ridge, Tenn.

The disconnect between the world of science and the world of security has rarely been so clear. What appears to FBI agents and journalists as highly sensitive nuclear weapons designs appears to many scientists to be basic physics. Some of the computer codes that describe the internal workings of a nuclear weapons blast, for example, are virtually identical to descriptions of the workings of a star, descriptions that can be openly published in astrophysics journals, Richter said.

Such testimony proved devastating to the prosecution's case. Last week, Parker concluded that "it was no longer 'indisputable' that the tapes contained the crown jewels of the United States' nuclear weapons program."

Further weakening the government's case, Robert Messemer, the FBI's lead agent on the case, was forced to admit that he had erred in December, when he testified that Lee borrowed a colleague's computer to copy classified nuclear weapons design codes after explaining that he needed the computer to download a resume. Prosecutors pointed to that alleged deception to portray Lee as a security risk. But, in fact, Lee never told his colleague that he was downloading a resume.

The Lee case was the second time in less than two years that the scientific community has broken sharply with Washington investigators over nuclear espionage allegations.

In May of 1999, a special House panel convened to investigate allegations of Chinese nuclear espionage concluded that Chinese agents had infiltrated the nation's nuclear weapons labs and defense contractors and had stolen valuable information on U.S. nuclear weapons designs.

The report by the committee chaired by Rep. Chris Cox, a California Republican, was criticized by senior nuclear physicists as simplistic and exaggerated.

"It was an outrageous report," said Wolfgang Panofsky, a nuclear physicist and former director of the giant nuclear accelerator at Stanford University. "They identified any information which the Chinese got by any method - through scholarship, through open literature, through the laws of physics - as stealing information. They simply ignored the normal intellectual process by which information gets disseminated."

Though the Lee investigation was only tangentially related to the charges investigated by the Cox Committee, to the public and the media, they were inextricably linked, said Tom Cochran, a nuclear physicist at the Natural Resources Defense Council. The FBI had descended on Los Alamos in 1996 to try to find the source of U.S. nuclear weapons design data that had turned up in China and that had ultimately led to the strongest accusations in the Cox report.

Agents homed in quickly on Lee, in part because of his Chinese heritage, in part because of contacts he had with the Chinese government on overseas trips. They discovered that Lee had suspiciously downloaded 19 computer files containing 806 megabytes of classified and confidential data regarding the research, design and construction of nuclear weapons. But they were never able to actually charge Lee with espionage, since no evidence ever emerged that the tapes changed hands.

Federal investigators labeled the tapes "the crown jewels" of the U.S. nuclear weapons program, but defenders of Lee emerged quickly. Asian-Americans charged that his arrest and prosecution amounted to discrimination.

Yesterday, Ling-chi Wang, the chairman of the ethnic studies department at the University of California at Berkeley, wrote an open letter to President Clinton, recalling the 19th century expression "not a Chinaman's chance."

"Our government has fired a Chinaman, thrown him over the fence of the Los Alamos lab to eagerly awaiting but paranoid politicians and federal prosecutors who promptly locked him up in solitary confinement," Wang wrote.

Caught in the middle has been Los Alamos. The once-secret city that built the world's first atomic bomb has been lambasted and lampooned for lax security. Morale has plummeted. At least three academic groups have called on all Asian-American scientists to boycott the lab. And Asian-Americans have filed a racial discrimination suit against lab administrators.

The number of Asian and Asian-American post-doctoral students applying for work at Los Alamos has shriveled from dozens to just three or four, said Jim Danneskiold, a spokesman for Los Alamos. Overall applications are at normal levels, he said, but the number of job seekers accepting positions has declined.

"It's not alarming yet, but people are concerned," Danneskiold said.

Panofsky said he visited Los Alamos this summer to discuss the disposition of excess plutonium but found scientists too preoccupied with tightening security procedures.

In a statement about Lee's plea bargain, the lab's director, John C. Browne, said "the last year and a half probably has been the most difficult in Los Alamos' history."

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