"The jury deserves to hear the whole story," said Thomas E. Wilson, who represented CIA agent Fernandez during Iran-Contra and is the only lawyer to successfully use CIPA to get an entire case dismissed. "If the government really wants to prosecute this guy, they're going to have to convince the judge either that the [classified] information is not relevant or make substitutions that are sufficiently complete . . . to provide a fair trial."
But if the judge decides that Lee's lawyers are entitled to use the classified data to present his defense, Atty. Gen. Janet Reno will have to decide whether to comply or drop the case.
A senior Energy Department official who is familiar with the Los Alamos files calls it "inconceivable" that the government will disclose the material Lee's lawyers have requested.
"The totality of it all leaves you breathless," he said. "It's like a road map. You could look at the files and see exactly why we did this and didn't do that, why we used this material and not that. It's not just a blueprint, it's the complete diary of everything that led to the blueprints. It's staggering. And irreplaceable."
'Not as Valuable as the Government Says'
Lee's lawyers claim the opposite. The real weapon blueprints, they say, lie in vaults and were not taken. Indeed, they argue in court papers, "virtually all of the information at issue was either available in the open literature or could be readily derived from the open literature."
They also claim the data related "directly" to Lee's work at Los Alamos, countering government claims that Lee had no need to take the files. Lee's lawyers also insist the files have "flaws" and cannot be understood without user manuals that Lee did not obtain.
"Basically, this stuff is not as valuable as the government says it is," said Nancy Hollander, one of Lee's lawyers.
Perhaps most important, Lee's lawyers argue that none of the Los Alamos files were formally classified as secret until after his arrest. Instead, they argue, the files were designated as "protect as restricted data," which requires far less stringent protection. They claim Lee "protected them adequately in light of their limited significance."
Lee was not charged with espionage, but his indictment repeatedly accuses him of acting with "intent to secure an advantage to a foreign nation." Lee's lawyers asked the court last month to order prosecutors to name the country, noting that government officials have variously suggested that Lee sought to aid China or Taiwan.
"These theories are obviously inconsistent," Lee's lawyers wrote. "One could as well allege that a person intended to benefit either Israel or Syria, or during the Cold War either the United States or the Soviet Union."