The spy who never was

The FBI have branded Wen Ho Lee America's Public Enemy No 1. He has languished in solitary confinement at a high-security prison for nearly a year. He is accused of selling missile secrets to the Chinese and putting the lives of millions of people at risk. Only one thing stands between him and the electric chair. The truth.

If Wen Ho Lee is one of the most dastardly spies of the nuclear age, he certainly doesn't look the part. He has an almost impossibly benign face, so gentle he looks incapable of swatting a fly, much less betraying his country.

If Wen Ho Lee is one of the most dastardly spies of the nuclear age, he certainly doesn't look the part. He has an almost impossibly benign face, so gentle he looks incapable of swatting a fly, much less betraying his country.

And yet, for the past nine months, the 60-year-old nuclear scientist has been kept in solitary confinement at a high-security prison in Santa Fe, New Mexico, under suspicion of delivering some of the most precious secrets of America's atomic weapons programme to the Chinese. He is allowed out of his cell for just one hour a day, and even then he is shackled and accompanied by two FBI agents at all times.

According to his prosecutors, Dr Lee committed the most despicable of acts: abusing his security clearance at the Los Alamos National Laboratories and filching America's military "crown jewels" for the benefit of a potentially hostile foreign power. One expert cited in the prosecution's deposition papers said his actions might alter the whole global strategic balance, and that "hundreds of millions of people could be killed" as a result.

Reason enough, from the government's point of view, to truss him up like a serial killer and watch him around the clock in anticipation of his trial. And yet there is something very wrong with the case against Dr Lee, something that was apparent to his friends and colleagues from the very first moment he came under suspicion for leaking secrets to the Chinese, and that now threatens to besmirch the reputation of the very government agencies arrayed so ferociously against him.

For all the recent scandals about security leaks at Los Alamos and the fears - much vented in the pages of The New York Times and in a controversial congressional report published 18 months ago - that China was filching many of America's most closely held military secrets, it is not at all clear what evidence, if any, the Federal Bureau of Investigation and the Department of Energy have against Dr Lee.

Already they have indicated that they won't be pressing espionage charges, an astonishing climbdown after more than a year of vilifying Dr Lee as a traitor in court documents and in the media. Their efforts to show he had unauthorised contacts with Chinese scientists have fallen flat, as have their attempts to catch him out in a lie about his behaviour: he has passed all polygraph tests with flying colours.

The only thing, in fact, that they appear able to hold against him is that he downloaded files from a secure computer at Los Alamos to a less secure computer, and copied some of the material on to disks or tapes that have not been fully accounted for. This activity is the basis of the 59 charges of mishandling classified information still outstanding against him. But even these accusations are fraught with problems. The material Dr Lee is alleged to have downloaded was only declared secret after the fact. According to numerous prominent scientists at Los Alamos, most of what he copied was in the public domain already. And none of it posed the remotest security threat to anyone.

What is worse, it appears that government agents misrepresented the facts - both to Mr Lee when they interrogated him, and to the court that ordered him to be held under draconian conditions without bail last December. In a hearing in Albuquerque last week, the lead FBI agent on the case, Robert Messemer, was forced to retract three key allegations. Dr Lee had not, he said, tricked a colleague into letting him use his computer to download sensitive files; there was no evidence that Dr Lee used this information to talk up job applications to foreign governments; and it was not true that Dr Lee's contacts with Chinese scientists he met on an official visit to Beijing in 1996 had gone unreported.

Agent Messemer defended his earlier allegations as "simple, inadvertent error". But they could yet be the loose thread from which the whole case unravels. Already, Judge James A Parker has ruled that the defendant should now be offered bail; the precise terms of Dr Lee's release are yet to be worked out, but barring injunctions from a higher court he is likely to return home as early as Friday. Meanwhile, an increasing number of jurists and expert witnesses are beginning to wonder if the trial, set for November, will take place at all or if the case will simply be thrown out. And the government, far from crowing about tracking down a spy, is beginning to quake at the prospect of civil suits seeking damages for the trauma that Dr Lee and his family have gone through.

So what happened? Does the government know something about Dr Lee that it hasn't yet told us, or is this - as Asian American activists, Amnesty International, the American Civil Liberties Union and others are saying - a grotesque miscarriage of justice based on political expediency, racial prejudice and blind panic?

The case goes back to 1996 when a CIA double agent produced evidence that the Chinese government had obtained information on a number of US nuclear warheads, including the most sophisticated in its arsenal, the W-88 Trident D-5. An inquiry into the security leak was hastily ordered, and the Department of Energy, which runs the US nuclear program, immediately focused its efforts on Los Alamos at the instigation of its head of counter-intelligence, Notra Trulock. (Mr Trulock was later forced to resign over his handling of the case and is now under investigation for mishandling classified information himself). In theory, the inquiry was supposed to focus on all scientists with access to sensitive documents who had either been to China or received Chinese delegations at Los Alamos. But in practice, only two people were ever investigated: Dr Lee and his wife Silvia. Their ethnicity was almost certainly an issue. Although Dr Lee was born in Taiwan, not China, and had been a US citizen since 1974, Mr Trulock is quoted in court papers as saying he did not think any ethnic Chinese should be given security clearance to nuclear secrets.

For almost three years, no case could be made against Dr Lee. He kept taking and passing polygraph tests, and at one point a deputy director of the Los Alamos Laboratories wrote a letter of apology for the constant questioning he underwent.

The pressure to find a bad apple to toss out of the cart continued to grow, however, first with the release of the Cox Committee Report into security leaks to China and then, in March 1999, with a New York Times article pinpointing Los Alamos as the source of those leaks. Dr Lee was subjected to a brutal FBI interrogation, in which he was told - incorrectly - that he had failed his polygraph tests and that if he continued to maintain his innocence he could expect to go to the electric chair.

Within a few days he had lost his security clearance, his job, and the pension he had been due to begin collecting nine months later. His name - leaked to the media in violation of every federal regulation in the book - was a constant feature of the 17 Senate hearings that took place on the security issue over the next six months, making his indictment a near-inevitability.

The absurdities of the case are many. According to Robert Vrooman, who was head of counter-intelligence at Los Alamos until 1998, codes for the W-88 warhead were distributed to 548 different locations, from the laboratories themselves to the Pentagon, other government agencies and private contractors. Information could have been passed to China from any one of these points. Moreover, it is unlikely that Chinese possession of the codes for the warhead would make any difference to the global strategic balance. Harold Agnew, a former director of Los Alamos, has said it would have "little or no effect" because every country develops its own codes and can't do much with ones that are incompatible - even assuming it has the resources to build a new weapons system, which China hasn't.

Like earlier waves of hysteria against Asian Americans, from the discriminatory laws against ethnic Chinese in the 19th century to the internment of 120,000 Japanese Americans during the Second World War, it appears the paranoia about China is another passing fancy: after all, the country has just been granted Permanent Normal Trading Relations status with the US - an odd thing to seek from an enemy.

The US intelligence establishment, meanwhile, has sprung so many leaks it looks more like a sieve than a national security outfit. A White House investigation published last year found classified documents detailing the designs of nuclear weapons sitting on public-access library shelves at Los Alamos. In May, two computer hard drives containing nuclear secrets mysteriously disappeared from a secure area of the labs, only to reappear, just as mysteriously, a few weeks later. Meanwhile, the head of the CIA, John Deutsch, was caught downloading classified documents on to his home computer and forced to resign. Curiously, there has been no mention of prosecution in his case.

Dr Lee, meanwhile, has been left to rot in prison - treated, as his daughter Alberta says, "like an animal". He can see his family for one hour a week, and then only from the other side of a thick glass wall. No physical contact is permitted, and his conversations are attentively followed by the FBI. Alberta has toured the country speaking on his behalf, scarcely able to believe that the gentle father she knows has been put through this hell. "He's been scapegoated. He's essentially a political prisoner," she says. "I can't believe it is my country putting him through this." Bail would be a crucial first step towards restoring his dignity and putting some balance back into a frighteningly unbalanced case; whether fact or circumstance will enable him to clear his name altogether remains to be seen.