ALBUQUERQUE — Documents unsealed in the Wen Ho Lee case reveal that his plea bargain with the government last year nearly fell apart when his lawyers disclosed he actually copied more tapes than prosecutors had believed.
But the initial documents among those sought by the San Francisco-based Chinese for Affirmative Action contained nothing to show that Lee, 61, a Taiwanese-born naturalized citizen who worked at Los Alamos National Laboratory for 20 years, was a victim of ethnic profiling or selective prosecution.
The government has denied it engaged in racial profiling and agreed to the release of the censored documents.
Much of the material Lee’s lawyers had hoped to obtain about alleged profiling and selective prosecution was never delivered to the court after the plea deal was reached in September 2000.
Attorney Roger Myers, who represents Chinese for Affirmative Action, said earlier this week he still hopes to retrieve those documents through the Freedom of Information Act.
Six of the 20 documents unsealed by U.S. District Judge James Parker on Tuesday were made public Thursday. Parker kept two of the requested 22 documents secret, one because of national security concerns and the other at the request of Lee’s lawyers.
A security review of the remaining documents was completed Friday, said Patricia Chavez, spokeswoman for the U.S. attorney’s office in Albuquerque. It was not immediately clear when those papers would be available, she said.
Lee, who had been charged with 59 counts of breaching national security, pleaded guilty to one count in September 2000, admitting using an unsecured computer to download a defense document. The government dropped the other counts and he was freed after nine months in solitary confinement.
According to the unsealed documents, lawyers from both sides began talking about a plea deal, believing Lee made seven tapes containing sensitive information on U.S. nuclear research at the northern New Mexico weapons lab.
However, about an hour before the deal was to go before Judge Parker on Sept. 11, 2000, Lee’s lawyers told the government he made up to seven copies of the seven tapes.
U.S. Attorney Norman Bay said in an affidavit he was shocked when he learned a half hour before the hearing on the plea deal that up to 14 tapes existed.
“I was dumbfounded, then outraged,” he said in the affidavit.
Government prosecutors called the disclosure “a bombshell” and asked Parker to scrap the deal, although they already had signed it.
The government said Lee’s last-minute revelation of extra tapes undermined the entire plea deal and indicated he may be withholding other information from his attorneys, the court documents said.
The government said it was difficult to believe Lee and his lawyers never discussed whether the tapes had been copied “more than nine months after Lee had been placed in solitary confinement because of concern about his ability to communicate information about the missing tapes.”
Lee’s attorneys said the plea agreement never referred to copies of tapes, which was why the issue did not come up earlier, the court documents said.
Once they found out about the copies, Lee’s attorneys drafted a declaration from Lee that said he had destroyed the extra copies at the same time he had destroyed the original seven tapes, the court documents said.
Lee’s attorneys said in the documents that the prosecution obtained assurances all the classified tapes had been destroyed and had not been passed to anyone.
“It would be grossly unfair ... to permit the prosecution to keep the benefit of its bargain but to deny Dr. Lee the benefit of his,” the documents said.
A few days later, both sides agreed to a second deal and Lee was freed. He agreed to make himself available to FBI questioning for a year so the government could find out exactly what happened to the missing tapes. The one-year period ended last month.
Lee said he threw the tapes into a Dumpster at the weapons laboratory. The FBI dug up sections of a nearby landfill that received lab trash around the dates Lee said he disposed of the tapes, but found nothing.
Also released was a Sept. 3, 1999, letter to defense attorneys from the Justice Department, which said Lee had copied classified and unclassified information onto tapes.
The government wanted to know why the tapes were made and who had access to them. The government said the kind of tapes Lee downloaded the information onto were outmoded and slower than accessing material directly from his computer, raising questions about why Lee wanted portable copies.
“We know that the tapes were of no practical use to Dr. Lee in his day-to-day work,” the letter said.
Defense attorneys have said the tapes were part of Lee’s routine work at the lab.