A Case Based On Race?

As federal prosecutors told the story last year, there was no greater threat to the country's safety than an unimposing former Los Alamos physicist named Wen Ho Lee. Indicted on 58 counts of mishandling nuclear secrets, Lee was arrested at his home and placed in solitary confinement. In testimony before a federal judge, an FBI agent conjured up the prospect that a commando unit might swoop down on helicopters and spirit Lee away to a foreign country if he were allowed to walk the streets.

Last week Lee seemed on the verge of gaining partial freedom. With key elements of the U.S. Justice Department's case seeming to dissolve in open court, U.S. Judge James A. Parker ordered Lee's release from jail--with a $1 million bail--pending trial. Government lawyers scrambled to appeal, and on Friday won a brief reprieve when an appellate court temporarily blocked Parker's order from taking effect. But the prosecutors still face setbacks on other fronts. In a highly unusual move, Parker ordered them to turn over thousands of pages of classified internal documents so that he can determine whether Lee--who maintains his innocence--was unfairly targeted in the first place because he is Chinese-American. "We're getting our butts kicked," one government lawyer conceded last week.

What's gone wrong? The government's case against Lee revolves around charges that he downloaded nuclear-weapons secrets to a nonsecure computer and then stored them on 10 computer tapes, seven of which are now missing. Lee has not been charged with espionage. Federal prosecutors have claimed that the missing secrets amounted to the "crown jewels" of the country's nuclear-weapons program, which would "pose a mortal danger to the United States" if they ended up in the hands of a foreign power. But new doubts about those assertions were cast two weeks ago when John Richter, a top nuclear-weapons designer and Los Alamos consultant, testified that 99 percent of what was on the computer files was already available in unclassified, open literature.

A potentially explosive issue is Lee's charge of "racial profiling"--a claim that makes U.S. officials uneasy; the Clinton administration has consistently disavowed the practice of singling out potential criminal suspects by race. Last week Lee's lawyers presented a sworn affidavit from Charles Washington, a top Energy Department counterintelligence official, asserting that his former boss, former Energy Department intelligence chief Nora Trulock, "improperly targeted" Lee in the case because of his "race and national origin." FBI officials have acknowledged that, from the outset in the Los Alamos case, they gave special scrutiny to Chinese-Americans at the lab on the theory that they would more likely to be recruited for espionage by the Chinese government. But Washington and another former DOE official asserted that there was no evidence that Chinese-Americans were any more likely than anybody else to go to work for Beijing.