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Request to Reduce Lee’s Charges Denied

Decision comes as bail is being considered

EDITOR'S NOTE: Shortly after this story was published, Wen Ho Lee's bail was granted. An update story will be forthcoming shortly.

By Richard Benke/AP

The government on Aug. 22 denied a defense request to reduce the charges against nuclear scientist Wen Ho Lee but acknowledged that files the fired Los Alamos scientist allegedly mishandled were not classified.

In a court filing, the government also said it opposes the defense’s request to dismiss all but 10 counts of the indictment against Lee.

And, citing national security concerns, the government withheld public release of a defense response to additional allegations against the 60-year-old scientist, who is accused of breaching security at Los Alamos National Laboratory.

The court filings came as U.S. District Judge James Parker considered whether to grant bail for Lee, who has been in jail since December.

After the three-day hearing, including several hours of closed-door sessions to consider classified information, the judge went point by point through December’s detention order, comparing any new information in the case. Parker said he would not rule from the bench because he needed to review hearing transcripts, then have a government classification officer review his order before it was filed.

About 15 friends and family members of Lee had offered to put up a dozen pieces of property worth about $2.2 million as bond, Defense attorney Mark Holscher said.

Lee, 60, is charged with illegally transferring top-secret nuclear weapons files to unsecure computers and computer tapes at Los Alamos National Laboratory. He could face life in prison if convicted.

On Aug. 17, during the course of the trial, an FBI agent testified that Lee easily passed a private company’s polygraph examinations. However, Agent Robert Messemer said the polygraphs administered to the scientist by Wackenhut, a security company, on behalf of the federal Energy Department did not follow the protocols accepted by the FBI.

Messemer said the FBI does not agree with the conclusions, though they were double-checked by an independent polygrapher and a polygraph supervisor.

Under questioning by defense lawyer Holscher, Messemer said that he was aware Lee scored among the highest possible scores for credibility when the scientist denied ever passing secrets, contacting anyone for the purpose of espionage or intending to harm the United States.

Messemer acknowledged some of his testimony in a bail hearing last December—testimony that was key to the decision to deny bail to Lee—was incorrect.

Messemer also testified that during a March 7, 1999, FBI interrogation, Lee was threatened with a potential death penalty if he did not cooperate.

“Are you aware that under interrogation, Lee was told the Rosenbergs were given the death penalty for not cooperating with the FBI and the specter was raised he [Lee] would be executed if he did not cooperate?” Holscher asked. Messemer said he was aware of that but was not present. He conceded, “We have no evidence ... of classic espionage” by Lee.

Julius and Ethel Rosenberg were convicted of stealing atom bomb secrets for the Soviets and executed in 1953.

Assistant U.S. Attorney George Stamboulidis objected that the defense implied Lee was threatened with death if he didn’t cooperate and said the Rosenbergs were executed only after being convicted. Stampboulidis asked Messemer if the interrogation implied Lee would be murdered if he didn’t copperate.

“I concluded he was not under any immediate threat of death if he did not cooperate and he was free to leave at any time,” Messemer said.

Until that interview, Lee had voluntarily submitted to 20 FBI contacts, Messemer said. But he said Lee has not been available for FBI interviews about what became of seven tapes the FBI has not found. Lee has said they were destroyed.

During the bail hearing on Aug. 18, one federal prosecutor said Lee could help someone build a bomb or help a country bolster its nuclear program if he is released from jail.

“Hundreds of millions of people could be killed,” Assistant U.S. Attorney George Stamboulidis told the judge. “The breadth of the potential harm is so great that ... Even a reduced risk is too great to take that gamble.”

Stamboulidis urged Judge Parker to again refuse bail for Lee, who has been in custody since December.

Holscher, however, tried to convince the judge that Lee posed no risk to national security. “There is no evidence in the record that Dr. Lee has the political motivation, the financial motivation or the destructive intent” to do anything harmful with the material he is accused of downloading.

Holscher said, however, that Lee was “naïve” and had made some stupid mistakes.

Defense Attorney John Cline said the material Lee allegedly downloaded was not the “crown jewels” of American science. He said the information could not be used to build a nuclear bomb. Cline added that the information was not even classified secret by the government.

After court adjourned, the scientist’s daughter, Alberta Lee, said: “I think the notion of my father having the intention to kill hundreds of millions of people is completely absurd.”