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Espionage suspect's deal with Feds under attack

The government struck a plea bargain that resulted in no prison time for a nuclear scientist who confessed to passing secrets to China, rather than await an analysis that ultimately concluded he "directly enhanced" Beijing's weapons program, documents disclose.

The documents, gathered by Senate investigators, detail weeks of miscommunication between prosecutors, defense officials and the FBI that led up to the December 1997 plea bargain for former U.S. nuclear labs scientist Peter H. Lee.

The miscommunication left the Justice Department official with final authority for the case unaware his prosecutor would seek minimal prison time for Lee. As it turned out, a judge gave Lee no prison time.

"Had this been our opening position in plea negotiations, I doubt that I would have approved it, particularly the short period of incarceration," Deputy Assistant Attorney General John Keeney told a Senate Judiciary subcommittee recently.

Lee's case has fallen in the shadows of the Wen Ho Lee spy case at the Los Alamos lab.

But testimony, government documents, and a draft Senate report reviewed by the Associated Press detail missteps by the government that mirror those already criticized in Wen Ho Lee's case.

The problems included the unexpected appearance of a Navy memo that raised questions about the quality of Peter Lee's case and would have been available to defense lawyers at trial.

"As our prior testimony reflected, the conclusions drawn by this draft report are contrary to fact," said Justice Department spokesman Myron Marlin. "The government secured two felony convictions in a difficult case."

Law enforcement officials say they wanted to avoid a trial to protect sensitive counterintelligence information that would have divulged some of the methods and sources used to detect Lee's activities.

Instead, officials sought to press Lee into a plea bargain, secure his cooperation, put him in prison for a short time and hope he would help on other China espionage matters, officials said.

The plan backfired, however, when Lee was found to be deceptive during his cooperation. Prosecutors also were surprised by the judge's leniency.

There were other complications.

Prosecutors decided not to wait for an analysis of how much Lee damaged national security and proceeded with the plea bargain.

Michael Liebman, the lead prosecutor, told senators he thought it was "impractical" to wait for a damage assessment because he believed it would take a year to complete.

But within two months, the Energy Department had completed an analysis of Lee's disclosures.

"This analysis indicates that Dr. Lee's activities have directly enhanced the PRC nuclear weapons program to the detriment of U.S. national security," the memo stated.

PRC is the People's Republic of China.

Sen. Arlen Specter, R-Pa., who led the Senate's review, sharply criticized the rush to plea bargain.

"That was just atrocious," Specter said. "I think it was indifference to the severity of the issue and a traditional interest in chalking up a conviction, which is meaningless when there is no substantial jail time as warranted by the infraction."

Specter's draft report concludes prosecutors should have brought more severe espionage charges against Lee, or at least tried to break the plea bargain when he did not fully cooperate.

Justice officials counter that to do so would have forced them to disclose the sensitive counterintelligence they wanted protected.

Lee worked at the Energy Department's Lawrence Livermore and Los Alamos nuclear labs and was a federal contractor for more than two decades.

In October 1997, he admitted to the FBI he shared classified information with Chinese nuclear scientists in 1985 and 1997 _ some of it involving a secret $100-million joint U.S.-British project on radar detection of nuclear submarines.

Since the plea bargain, which required Lee's cooperation, the scientist failed an FBI lie detector test and left U.S. officials convinced he has not disclosed the full extent of his activities for China, a draft Senate report states.

There were other miscommunications, the report shows.

Prosecutors did not give defense officials a copy of Lee's videotaped confession, instead providing them a more limited affidavit. As a result, Navy officials were confused about whether the information Lee shared with China in 1997 was classified. Defense officials knew about the tape, but did not ask for it.

The latter miscommunication resulted in what Justice officials called a "body blow" to their case. A month after Lee's confession, the Navy produced a memo suggesting it was not worth prosecuting Lee for disclosing information about the submarine project.

"It is difficult to make the case that significant damage has occurred," the Nov. 14, 1997, Navy memo stated, citing questions about whether the information passed was unclassified, confidential or secret.

Prosecutors were stung by the memo, and worried Lee's lawyers would use it to create doubt with jurors. Earlier this year, defense officials finally watched Lee's confession video and concluded the information he passed the Chinese was indeed classified.

There also was confusion about whether Lee could have been charged with espionage instead of lesser charges of attempting to communicate national defense information and making false statements.

Liebman said he did not think he could prove an espionage charge even though the information Lee admitted giving to China in 1985 was classified as secret. By the time the case emerged, some of the information had been declassified, he noted.

But memos show FBI and Defense officials expected Lee to be charged with the "heftier charge" if the deal fell through.

Senate investigators also cite a failure to renew an electronic surveillance warrant in fall 1997 that would have allowed the FBI to gather more information.

Law enforcement officials question whether it was worth renewing the warrant because Lee had recently discovered an FBI bug.

But Specter disclosed the FBI intercepted an incriminating e-mail after Lee had found the bug and said that provided ample reason for renewal.

"The loss of electronic surveillance on Dr. Lee occurred at a critical juncture that may have seriously hampered the government's ability to collect counterintelligence information," his draft states.