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Associated Press
August 25, 2000

Experts Wrangle Over Meaning of Judge's Bail Decision on Wen Ho Lee Case

By Sue Major Holmes, Associated Press Writer

ALBUQUERQUE, N.M. -- A law professor cautioned Friday against reading too much into a judge's decision to release a jailed nuclear scientist on $1 million bail, but a classification expert for a science group says the action repudiated the federal government's case against Wen Ho Lee.

U.S. District Judge James Parker refused last December to let Lee out of prison on bail, citing "clear and convincing evidence" that he was a threat to national security.

But on Thursday, after three days of dueling scientific views over the importance of the information Lee is accused of mishandling, the judge wrote that the government "no longer has the requisite clarity and persuasive character necessary" to keep Lee jailed pending his November trial.

"I would read that narrowly," cautioned University of New Mexico criminal law Professor Leo Romero. "I think that when he says the case, he means on the bail issue, not the case on the merits."

The judge's decision does not indicate whether the government will or will not win the case, "but we can say the case is not as ironclad as the government wanted the case to be," said Laurie Levenson, a professor of criminal law at Loyola University Law School in California.

"This is an indication the judge has lost a bit of confidence in the materials presented by the government," she said. "They may sort themselves out later, but right now they may not be reliable enough."

Steven Aftergood, a classification expert at the Federation of American Scientists, reads the decision as an "implicit repudiation" of part of the government's case - the importance of the information in question.

"I think some big holes have been poked in the prosecution's case," said Aftergood, whose Washington, D.C.-based group was founded by former scientists from Los Alamos National Laboratory - where Lee is accused of downloading sensitive weapons material to an unsecure computer and tapes.

Lee has been jailed in solitary confinement since his December arrest.

"If Wen Ho Lee is entitled to bail now, then he was entitled to bail eight months ago," said Aftergood, who directs the federation's Project on Government Secrecy. "And the fact that he was jailed on the basis of faulty prosecution testimony imposes a major burden on the prosecution."

An FBI agent whose testimony was a key in denying bail to Lee twice previously acknowledged during bail hearings last week that there were inaccuracies in his earlier testimony. In addition, scientists testifying for the defense said much of the nuclear information was available in open literature, could not be used to make a bomb and was not even classified secret at the time.

"I don't suggest that prosecution witnesses deliberately misrepresented their case, but because of their exaggerations and errors, a man was locked up for eight months without being guilty of any crime," Aftergood said. "I wonder just how big a mistake the prosecution has to make before their whole case is called into question."

Victor Hwang, managing attorney for the Asian Law Caucus in San Francisco, said he believes Parker picked up on a change in government theories.

"They've shifted from the idea of his being a spy to someone who broke the rules in a job search," Hwang said. "I think what's been inconsistent is what they've charged him with, this mishandling of classified information, and the rhetoric they've used to keep him in jail ... which is that he could harm the United States."

Parker on Wednesday granted friend-of-the-court status to Hwang's group and the American Civil Liberties Union, letting them file legal briefs in support of a defense motion to disclose any evidence that Lee, a Taiwanese-born American citizen, was singled out for a prosecution because of ethnic profiling.

Neither the U.S. attorney's office nor Lee's defense team had any comment Friday. Prosecutors on Thursday said they would respond to Parker's order in court; defense attorneys said they were gratified by his decision.

Parker has yet to rule on a defense motion - opposed by the prosecution - to dismiss all but 10 counts of the indictment.

The defense contends the materials Lee allegedly mishandled were not classified secret at the time, but instead were "Protect As Restricted Data," or PARD, which calls for lower levels of security. Prosecutors argue that nonetheless, 19 files and one tape contained information with higher classifications, and that Lee knew it.

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