IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

April 24, 2000 [date stamped]


UNITED STATES OF AMERICA,
Plaintiff,

v.                                             		Criminal No. 99-1417 JC

WEN HO LEE,
Defendant.

MEMORANDUM CONCERNING THE USE, RELEVANCE, AND
ADMISSIBILITY OF THE INFORMATION LISTED IN DR. WEN HO LEE'S
FIRST NOTICE UNDER SECTION 5
OF THE CLASSIFIED INFORMATION PROCEDURES ACT

Dr. Wen Ho Lee submits this memorandum to outline in general, unclassified terms the significance to his defense of the information set forth in his first CIPA 5 Notice. That information consists of the contents of Files 1 through 19 and Tape N. At a CIPA 6 hearing, we will present a more detailed explanation of the "use, relevance, [and] admissibility" of the information at issue. CIPA 6(a).

I. THE RELEVANT LEGAL FRAMEWORK.

The legal framework involves two key points. First, as this Court has already recognized, "[w]hen determining the use, relevance and admissibility of the proposed evidence, the court may not take into account that the evidence is classified; relevance of classified information in a given case is governed solely by the standards set forth in the Federal Rules of Evidence." Order of March 29, 2000, at 2 n.2 (citing United States V. Baptista-Rodriguez, 17 F.3d 1354, 1364 (11th Cir. 1994)); see, e.g., United States v. Ivy, 1993 U.S. Dist. LEXIS 13572, *4 (E.D. Pa. Aug. 13, 1993) (same); United States v. North, 698 F. Supp. 316, 318 (D.D.C.1988) (same).

Second, the statutes under which Dr. Lee has been charged--42 U.S.C. 2275 and 2276 and 18 U.S.C. 793(c) and(e)--have stringent intent elements. Sections 2275 and 2276 require proof of an "intent to injure the United States" or to "secure an advantage to any foreign nation." 42 U.S.C. 2275,2276. Sections 793(e) and (c) require proof that the defendant acted "willfully." 18 U.S.C. 793(e).1 An act is done "willfully" for purposes of these statutes "if it is done voluntarily and intentionally and with the specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law." United States v. Morison, 844 F.2d 1057, 1071 (4th Cir. 1988). These broad standards are significant because much of the evidence that Dr. Lee seeks to introduce bears directly on the intent with which he acted. As the Tenth Circuit has observed, "[T]he accused as part of his defense is entitled to wide latitude in the introduction of evidence which tends to show lack of specific intent." United States v. Brown, 411 F.2d 1134, 1137 (10th Cir. 1969).

II. IT IS CRITICAL TO DR. LEE'S DEFENSE THAT HE PRESENT EVIDENCE CONCERNING THE CONTENTS OF FILES I THROUGH 19 AND TAPE N.

The contents of Files 1 through 19 and Tape N are critical to Dr. Lee's defense--and particularly to the intent with which he acted--for several reasons.

First, Dr. Lee intends to demonstrate that, at relevant times, virtually all of the information at issue was either available in the open literature or could be readily derived from the open literature. He also intends to prove that any isolated bits of information that could not have been found in or derived from the open literature would have had minimal significance for a foreign nation or potential proliferant. This evidence--which will be elicited on cross-examination and in the defense case-in-chief--will rebut prosecution claims that the information amounts to the extraordinarily sensitive "crown jewels" of this country's nuclear design capability and impeach prosecution witnesses who provide such testimony.2 It will also tend to negate any inference of criminal intent that might be drawn from the assertedly secret nature of the information. See, e.g., Gorin v. United States, 312 U.S. 19, 28 (1941) ("Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government."); United States v. Enger, 472 F. Supp. 490,508 (D.N.J. 1978) (same).

Second, evidence of prior, open publication of virtually all of the information contained in the files at issue will tend to negate any prosecution claim that the information relates to the "national defense," an element of the offenses charged under 793(c) and (e). See, e.g., Morison, 844 F.2d at 1071-72 (to establish that items relate to the national defense, the government must prove (among other things) that they "have not been made public and are not available to the general public"); United States v. Truong, 629 F.2d 908, 918 n.9 (4th Cir. 1980) (same).

Third, Dr. Lee intends to demonstrate that some of the files contain flaws that would tend to reduce their usefulness. This evidence will rebut the prosecution's "crown jewels" claim and impeach any prosecution witness who offers such testimony. The evidence also will serve to negate any inference of criminal intent that might be drawn from the asserted value of the files to a foreign nation or potential proliferant.

Fourth, Dr. Lee intends to demonstrate that the allegedly sensitive contents of the files at issue cannot be readily interpreted or understood without the proper user manuals or similar documents. No user manuals are included in Files 1 through 19 and Tape N. This evidence will rebut the prosecution's claim that the files written in high level computer language can be read "like a book" and impeach prosecution witnesses who provide such testimony. T. 12/13/99 at 69 (Dr. Stephen Younger); see, e.g., T. 12/27/99 at 181 (Dr. Richard Krajcik testifies that the codes written in high level language are "readable" to a physicist trained in computer language); T. 12/28/99 at 218-19 (Krajcik testifies that a physicist from another country could understand the files as they were allegedly downloaded). And the evidence will tend to negate any inference of criminal intent that might be drawn from the asserted "readability" of the files.

Fifth, Dr. Lee intends to demonstrate that the input decks contained in Files 1 through 19 and Tape N omit many details essential to the design and manufacture of nuclear weapons. Dr. Lee will show that weapons blueprints contain far more critical details than the input decks; that the blueprints are maintained in the X Division weapons vault and in an on-line vault accessible to X Division scientists; and that Dr. Lee never copied or removed any blueprints from these vaults. This evidence will tend to rebut anticipated prosecution testimony that the input decks amount to an "electronic blueprint' and impeach prosecution witnesses who provide such testimony. E.g., T. 12/27/99 at 189 (Krajcik). The evidence also will tend to rebut any inference of criminal intent that might be drawn from the assertedly detailed nature of the input decks.

Sixth, Dr. Lee intends to demonstrate that all of the information in Files 1 through 19 and Tape N relates directly to his work at LANL. This evidence will establish that Dr. Lee's access to the downloaded material was "necessary to the performance of his official duties," thus negating the element under 793(c)and (e) that his "possession of, access to, or control over" the material was "unauthorized." Truong, 629 F.2d at 919 n.10. The evidence also will rebut anticipated prosecution testimony (1) that certain portions of the files did not relate directly to Dr. Lee's work, see, e.g., T. 12/27/99 at 198 (Krajcik testifies that some of the downloaded material "didn't seem to fit" with Dr. Lee's area of expertise); id. at 201 (Krajcik characterizes downloaded files as "chilling" because the information "was not germane to [Dr. Lee's] particular specialty"), and (2) that he had no need to work with the codes in their entirety, see, e.g., T. 12/28/99 at 196-98 (Krajcik finds it "highly unusual" for Dr. Lee to work with the codes in their entirety). And the evidence will tend to negate any inference of criminal intent that might be drawn from the asserted lack of connection between the information at issue and Dr. Lee's duties at LANL.

Several of the grounds set forth above for admitting the contents of Files 1 through 19 and Tape N rest upon sharply divergent claims concerning the significance and sensitivity of the information at issue. It is particularly important that Dr. Lee be given latitude to contest this critical point in light of the apparently undisputed fact that the files at issue were protected at the "Protect as Restricted Data" (PARD) level at the time of the events at issue, rather than classified at the higher "Secret Restricted Data" (SRD) or "Confidential Restricted Data" (CRD) levels as alleged in the indictment. The DOE glossary defines PARD as "[a] handling method for computer-generated numerical data or related information, which is not readily recognized as classified or unclassified because of the high volume of output and low density of potentially classified data." U.S. Department of Energy, Office of Security Affairs, Office of Safeguards and Security, Safeguards and Security--Glossary of Terms at 111 (Dec. 18, 1995) (emphasis added) (relevant pages attached as Exhibit 1). A note adds that "[t]his information is designated as Protect As Restricted Data because it has not had a classification review and must be protected under a different set of security rules." Id. (emphasis added). A LANL publication declares that "[t]he hierarchical security classification labels on the worker machines at LANL are: Secret > Confidential > PARD > Unclassified." Computing at LANL at 3 (June 3, 1996) (attached as Exhibit 2). The document notes that on the LANL secure partition, SRD is assigned the numerical value 9; CRD the value 6; PARD the value 5; and unclassified the value 3. See id.

The fact that the information at issue was considered PARD--and thus, by definition, "not readily recognized as classified or unclassified" and containing "a low density of potentially classified data"--at all times during the relevant period casts significant doubt on the government's "crown jewels" claim. That claim appears to rest at least in part on the SRD and CRD classification levels assigned to the files after Dr. Lee's firing. But at the time of the events at issue--and, indeed, at all times before LANL fired Dr. Lee--the files were protected at the PARD level, which falls below both SRD and CRD in the LANL security hierarchy. Although the prosecution undoubtedly will present government officials at trial to claim that the information is more sensitive than the PARD category suggests, Dr. Lee should be permitted to test that claim through vigorous cross-examination and the presentation of contrary evidence, including evidence drawn from the contents of the computer files themselves.

This point may be illustrated by a simple example. Suppose this were a case about alleged mishandling of the contents of a box. The prosecution claimed that the box contained a chunk of gold that had to be handled with extreme care. The defense contended that the box contained a chunk of lead that did not require such careful handling. To permit the jury to decide what the box contained--and thus the degree of care necessary in its handling--the defendant could insist, as a matter of constitutional right, on opening the box and showing the jury the contents. And to the extent prosecution witnesses testified about the nature of the chunk--its color, weight, and molecular properties, for example--the defense would have the right to cross-examine by showing the witnesses the chunk and pointing out aspects of it that contradicted their testimony.

Files 1 through 19 and Tape N are the box in this case. The contents of the box are the codes, data files, and input decks that the files contain. The government claims that the codes and other files are pure gold--indeed, the "crown jewels," capable of changing the "global strategic balance"--and thus should have been handled with extraordinary care. It will ask the jury to infer that Dr. Lee acted with criminal intent in light of his alleged mishandling of such assertedly sensitive files. The defense, on the other hand, will demonstrate that the files are mere lead; that Dr. Lee protected them adequately in light of their limited significance; and that no inference of criminal intent can be drawn from Dr. Lee's conduct. Dr. Lee will establish that the information the files contain can, with few (if any) exceptions, be found in or derived from the open literature. He will show that the files are difficult to interpret without user manuals and similar documents, none of which were copied. He will prove that some of the files contain flaws that would tend to diminish their usefulness. And he will make the other points set out above.

The jury must decide whether Files 1 through 19 and Tape N contain gold, as the prosecution claims, or lead, as the defense contends. To demonstrate his innocence, Dr. Lee must be permitted to open the box--the files--and show the jury the contents. He cannot be required to take the word of the prosecution witnesses that the box contains gold or to content himself with vague generalities about what the box holds. "Although CIPA contemplates that the use of classified information be streamlined, courts must not be remiss in protecting a defendant's right to a full and meaningful presentation of his claim of innocence." United States v. Fernandez, 913 F.2d 148, 154 (4th Cir. 1990). Dr. Lee's "presentation of his claim of innocence" requires that he introduce evidence concerning the contents of Files 1 through 19 and Tape N.