A federal appeals court on Monday was scheduled to hear arguments on whether former U.S. government scientist Wen Ho Lee would pose a danger to national security if he were freed on bail pending his trial on charges he mishandled U.S. nuclear secrets.
The 60-year-old Taiwan-born researcher, who worked for the Los Alamos National Laboratory in New Mexico before he was fired last year, has been in jail in solitary confinement since December.
He is charged with 59 counts of illegally copying what federal prosecutors called “the crown jewels” of U.S. nuclear weapons design. He has pleaded not guilty to all the counts.
On Monday, the appeals court will hear from prosecutors and defense attorneys on whether the trial judge in New Mexico acted properly in ordering Lee’s release on US$1 million bail. It is not known if the court will render a decision on Monday.
“The trial court judge gets a lot of discretion when it comes to bail,” Andrew Cohen, a legal commentator for CBS News, said.
University of New Mexico Law school professor Barbara Bergman agreed. “The trial judge sees how the case has been unfolding. He’s in a better position to evaluate the credibility of the witnesses,” she said.
The appeals court initially ordered Monday’s hearing closed to the public for security reasons, but reversed its order in part after the Associated Press argued that the constitutionally based presumption of public access to trials also applied to pretrial bail and detention hearings. The hearing will begin in public and move to a closed setting when classified information is discussed, the court decided.
Patrick Fisher, clerk of the appeals court in Denver, said that legal arguments about bail are public and that part of the hearing is expected to be open. “But when they get into the facts there’s a lot of classified information that requires the hearing to be closed,” he added.
Fisher said special precautions were taken to bring certain classified documents into the courthouse, but for security reasons he declined to disclose what actions were taken.
Prosecutors do not want Lee released on bail because they fear he still has possession of U.S. nuclear weapons designs on seven tapes he made at Los Alamos. Lee said he destroyed the tapes but prosecutors said they might still exist.
Lee’s family and attorneys have said he was selectively prosecuted because of his ethnicity, though he is a naturalized U.S. citizen.
U.S. District Judge James Parker in Albuquerque who originally favored pretrial detention for Lee changed his mind in August, saying “it was no longer indisputable … that the missing tapes contain crown jewel information about the nations’s nuclear weapons program.”
The judge also said he was concerned that an FBI agent admitted that some testimony he originally gave was incorrect.
Parker ordered Lee’s release and set out a 12 point list of “highly restrictive” conditions for Lee, limiting him to his house and backyard, and subjecting his wife to searches by the FBI when she goes out or comes home.
But just minutes before Lee was scheduled to be set free on Sept. 1 on a US$1 million bond, the 10th Circuit Court of Appeals in Denver issued an order stopping him from going home.
Federal prosecutors have argued that Lee could still pass on the information to his wife Sylvia or others without their realizing it.
“The risk that Lee presents lies in his ability to pass the missing tapes or to communicate information about them directly or through intermediaries,” prosecutors said in court filings.