- The Washington Times - Thursday, September 28, 2000

A federal prosecutor told a Senate subcommittee yesterday the government opted for a plea agreement with Wen Ho Lee after his attorneys threatened a "long slow death march" of a public trial that could have revealed top nuclear weapons secrets.

U.S. Attorney Norman Bay of New Mexico also defended the deal as necessary in ongoing efforts to find missing computer tapes illegally copied by Lee that contain sensitive nuclear weapons design and testing data.

Testifying before the Senate Judiciary subcommittee on administrative oversight and the courts, Mr. Bay echoed comments Tuesday by FBI Director Louis J. Freeh who said a deal allowing Lee to plead guilty to one of 59 felony counts charged in an indictment was made for "one overarching reason: to find out what happened to the missing tapes."

Lee, 60, pleaded guilty this month to illegally transferring data on the design, manufacture and use of nuclear weapons from classified computers at the Los Alamos National Laboratory in New Mexico to an unsecured computer.

At least seven and as many as 14 tapes copied by Lee are still missing. Mr. Freeh called them part of Lee's "own secret, portable, personal trove of this nation's nuclear weapons secrets."

Meanwhile, George Tenet, director of the CIA, said yesterday that secrets downloaded by Lee could offer another country "a graduate course in nuclear weapons design" but not the means to actually build a bomb. In a written statement to the Senate Select Intelligence Committee, Mr. Tenet said the data could help primarily from a design perspective, providing insight and guidance in nuclear weapons design.

"The actual value of the information depends in large part on the capabilities of the country or group that received it," Mr. Tenet said, adding that the CIA did not play any decision-making role in the question of whether Lee should have been prosecuted.

During yesterday's subcommittee hearing, Chairman Arlen Specter, Pennsylvania Republican, questioned the plea agreement and asked Mr. Bay and other Justice Department officials if a deal was possible prior to Lee's December 1999 arrest.

He noted that U.S. District Judge James Parker, who oversaw the case and apologized to Lee for his nine-month pretrial detention, said at a Sept. 13 sentencing hearing that Lee made a written offer in December 1998 saying he would explain the missing tapes under polygraph examination.

"What more did you get on Sept. 13 than an agreement to explain the missing tapes with the check of a polygraph examination?" Mr. Specter asked.

Mr. Bay said Lee's December 1998 offer did not contain an agreement to plead to any of the pending felony charges against him, and the offer only said Lee was willing to provide a proffer and take a polygraph. He also said he did not believe Judge Parker was aware of several discussions between the government and Lee's attorneys in the nine-month period after the indictment.

He said it would have been "very unusual" to have brought the judge "into any kind of pre-negotiations before the case was decided," adding that the judge's comments from the bench came as a "complete surprise to us."

"We dearly wish, Mr. Chairman, we had had the opportunity to talk to the court beforehand and to see what his specific concerns were, and to see whether or not we could allay them," Mr. Bay said. "But we went through this mediation process, and part of mediation is you resolve a case in the spirit of mediation. So, to be honest with you, I was very much blindsided by the judge's comments."

Regarding the final agreement, Mr. Bay said Lee promised to cooperate for a year and to sit for 10 days of debriefings over a three-week period. He also said the deal was structured in such a way that if Lee lies, he can be prosecuted for false statements, perjury and obstruction of justice. In addition, he said, the government can set aside the plea agreement and reinstate the 58 remaining counts.

Assistant Attorney General James Robinson, who heads the Justice Department's criminal division, said Lee's December 1999 offer to cooperate came on the "very day that the grand jury was returning its indictment." He said Lee's attorneys offered "very, very limited" cooperation and no way to test the validity of Lee's anticipated testimony.

Mr. Robinson said that during lengthy negotiations between Lee and the government, Lee was willing to provide information only in exchange for immunity and, at times, only in exchange for possible pleas to misdemeanors. He said the final agreement gives the government "the best hope" in locating the missing tapes.

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