Government prosecutors have told a federal judge that nuclear scientist Wen Ho Lee should be kept in jail because he has never provided credible evidence that he destroyed seven missing computer tapes he made that contain "classified information sufficient to build a functional thermonuclear weapon."
"Absent credible evidence to the contrary," Assistant U.S. Attorney Robert J. Gorence wrote in a court filing late Thursday in New Mexico, it must be assumed that Lee "continues to exercise dominion and control over these seven tapes," posing "an unprecedented risk of danger to the United States."
The government was responding to a motion by Lee's lawyers asking a federal judge to overturn a Dec. 13 ruling by Magistrate Judge Don J. Svet, who ordered that the Taiwan-born U.S. citizen be held until trial on charges of mishandling classified information. The U.S. District Court will hear evidence on the motions Monday in Albuquerque.
In seeking their client's release, Lee's lawyers said he could end up incarcerated "for at least a year" before his trial.
Separating Lee from his family in pretrial detention "for such a prolonged period would vitiate the presumption of innocence and violate his right to due process," Lee's lawyer, Mark Holscher, asserted in a memo to the court.
Lee's lawyers argued that the government has provided no evidence to show that Lee ever made the material available to any third parties.
The veteran Los Alamos National Laboratory scientist was arrested Dec. 10 and indicted on 59 counts of mishandling secret nuclear information under the Atomic Energy and Espionage Acts. He has pleaded not guilty.
In the first hearing, the government emphasized the possibility that Lee, 59, with relatives in Taiwan, might flee this country. In the latest filing, the government made clear it now most fears that the seven missing tapes still exist and that if free, Lee could assist "an unauthorized possessor" in using them to gain design information about nuclear weapons.
"Given Lee's control of and access to the seven missing tapes, Lee poses an inconceivable risk to the U.S. national security," the prosecutors wrote.
In Thursday's filing, the government acknowledged for first time that 24-hour-a-day surveillance initiated on Lee last April "was done primarily in an attempt to locate the missing tapes." The FBI and the CIA have conducted an unsuccessful worldwide search for any signs of the tapes.
While Lee's lawyers have asserted that the tapes were destroyed, the government filing claims it was never offered "any specifics or corroboration . . . regarding when or how the downloaded classified tapes were allegedly destroyed."
In fact, despite a full-day session last June with the government and Lee's lawyers discussing what the scientist would say about what he had done, the government said Lee "steadfastly refused to be interviewed" as to why he downloaded the classified nuclear files to his unsecured office computer and later put the most secret of the nuclear codes on unsecured portable tapes that resemble videotapes.
The government in its filing says that Lee's lawyers initially claimed only unclassified information was put on the portable tapes. But at the Dec. 13 hearing, an FBI witness said investigators used two tapes recovered from Lee's office to show they had once contained classified information.
In Thursday's filing, the government recounted other misstatements Lee has made, going back more than 10 years to discuss the failure to report, as lab rules had required, that he had been approached by Chinese intelligence officers during 1986 and 1988 visits to China. Left out of the filing, however, was the information that Lee himself disclosed his failures during recent interviews.
The government also noted that Lee "failed a polygraph examination" last February on the question "of whether or not he ever passed or transmitted classified information to an unauthorized person."
Svet ruled against bail after a 4 1/2-hour hearing during which the government laid out the meticulous and secretive way Lee collected tapes relating to U.S. nuclear weapons in 1993, 1994 and 1997, not only transferring classified files to his unsecured computer but also downloading them to 10 portable tapes.
As part of the effort to gain release, Lee's lawyers have turned in their client's passport and said he would surrender his right to fight extradition from any country abroad.
The government argued, however, that the value of the information on the missing seven tapes is so great that those secrets would "provide the necessary incentive for such a country to provide safe haven for Lee."