(CNSNews.com) - Suspected Chinese spy Wen Ho Lee could be held without bail for more than a year on charges he stole nuclear weapon secrets from the Los Alamos National Laboratory in Mew Mexico unless a US District judge Monday overturns a federal magistrate's decision to have the accused spy remain in jail until trial.
U.S. District Judge James Parker is expected Monday to consider a December 13 decision by U.S. Magistrate Don Svet, who ruled that releasing scientist Wen Ho Lee would pose "a clear and present danger to the national security of the United States."
The indictment charges Lee with transferring nuclear secrets from the lab to his desktop computer and portable data tapes. If convicted Lee could face life in prison. While the indictment does not accuse Lee of giving classified information to a foreign government, Lee is believed to have given China the design of the W-88, America's most advanced nuclear weapon.
Judge Parker is expected to hear an appeal by Lee's attorney. Lee, charged on 59 counts, has maintained his innocence since the investigation began.
Because of the large amount of classified evidence associated with the case, prosecutors say a year's wait in jail for Lee is not unlikely.
Federal prosecuting attorneys, in court documents filed Thursday, argued that the 60-year-old Taiwan-born computer expert would be a risk to flee the United States if released on bail.
"Lee stole America's nuclear secrets sufficient to build a functional thermonuclear weapon,'' they argued. "Lee absconded with that information on computer tapes, seven of which are still missing. Those missing tapes, in the hands of an unauthorized possessor, pose a mortal danger to every American."
Prosecuting attorneys say there is no evidence to support Lee's attorneys' contention that the tapes were destroyed.
Other Los Alamos scientists have said Lee's actions are similar to what other researchers and government officials do - transfer classified material from one computer to another, without always being aware of security precautions.
"We know of no one (else) who has ever charged with committing a crime for that," lab computer specialist Betty Gunther told The Albuquerque Tribune.
Los Alamos astrophysicist Stirling Colgate called the Lee prosecution "a real American tragedy," according to the Tribune article Thursday.
However, according to an August Senate Committee on Governmental Affairs report, there is evidence pointing to both the guilt and innocence of Lee and his wife, Sylvia.
Among the findings in the report, Lee failed a polygraph test early this year in which he was asked whether he gave any nuclear secrets "to any unauthorized person."
When federal investigators searched the computer, they found Lee had transferred classified material to an unclassified computer on his desk. At the time of report, it was still unknown whether someone outside the lab had access to those files.
The FBI obtained a 1987 note with the letterhead of a Chinese nuclear weapons institute, showing that Sylvia Lee had requested that three Los Alamos documents be sent to the deputy director of that institute "if they were unclassified."
However, an internal Justice Department memo regarding the investigation of the compromised W-88 says the investigation was "flawed from the start." FBI and Department of Energy officials prematurely focused their attention on the Lees when "multiple suspects" still existed.
Furthermore, these "multiple suspects" worked at Los Alamos and were also Chinese-Americans. They had access to classified information, traveled to China, and visited with Chinese delegates contends the Justice Department.