Lee Gets New Hearing

A federal appeals court agreed Wednesday to set a hearing for Wen Ho Lee's lawyers to argue that the accused nuclear scientist should be released from jail.

The Denver-based 10th U.S. Circuit Appeals Court, which last week superseded a bail-release order signed by a federal judge in Albuquerque, set the hearing for Monday in Denver.

The defense had petitioned the court to release the fired Los Alamos scientist, who has been jailed since Dec. 10 while he awaits trial.

"Surely it does not serve the public interest to maintain an imprisonment that erodes the basic sense of fairness that undergirds the Constitution," Lee's attorneys wrote in a motion filed Tuesday.

In the memo, Parker said the government had failed to present convincing arguments for keeping Lee in the Santa Fe County jail pending trial, scheduled for Nov. 6. The judge also said he wasn't convinced that the material Lee is accused of mishandling were the "crown jewels" of U.S. nuclear technology, as the government contends.

He added that the government "has never presented direct evidence that Dr. Lee intended to harm the United States or to secure an advantage for a foreign nation." Prosecutors must prove those two elements to convict Lee.

Lee, a Taiwan-born naturalized U.S. citizen, was fired from Los Alamos National Laboratory last year and arrested Dec. 10 on charges he illegally downloaded restricted material to unsecure computers and tape. The 60-year-old could face life in prison if convicted at his trial, which starts Nov. 6.

Family and supporters celebrated the judge's decision to grant bail as a sign the government's case against the nuclear scientist may be unraveling.

While the Department of Energy accused Lee with providing valuable U.S. nuclear secrets to China, critics point out he was never officially charged with espionage—only with mishandling sensitive data.

Lee's attorneys said his arrest was done in an atmosphere of anti-Chinese sentiment and suspicion following the January 1999 Cox Commission report, which claimed that China was trying to infiltrate Los Alamos to learn secrets.

After approving bail on August 29, Parker also requested the hand-over of key government information that could help the court determine whether Lee was the subject of selective prosecution and ethnic profiling.

Some of the material unsealed by the court suggests Lee was singled out because he was born in Taiwan.

"I have concluded that if Dr. Lee had not been initially targeted because of his race—he may very well have been treated administratively like others who had allegedly mishandled classified information," said an affidavit from Charles Washington, who headed the Energy Department's counterintelligence branch for several years in the 1990s.