U.S. v. Lee

Full title: UNITED STATES OF AMERICA, Plaintiff, v. WEN HO LEE, Defendant

Court: United States District Court, D. New Mexico

Date published: Sep 5, 2000

CRIMINAL NO. 99-1417 JP (D.N.M. Sep. 5, 2000)

Opinion

Criminal No. 99-1417 JP.

September 5, 2000

RESPONSE OF DR. WEN HO LEE TO PROSECUTION'S PROPOSED SUBSTITUTIONS UNDER CIPA § 6(c)(1)

Dr. Wen Ho Lee, through undersigned counsel, submits this a response to the prosecution's proposed substitutions for the contents of Files 1 through 19 and Tape N.¹ As we demonstrate below, the prosecution's proposals do not come close to giving Dr. Lee "substantially the same ability to make his defense as would disclosure of the specific classified information." CIPA § 6(c)(1).

1 Government's Motion for Substitutions Pursuant to CIPA § 6(c)(1) and Incorporated Memorandum of Law (filed Aug. 14, 2000) ["Motion"]; Government's Supplemental Motion for Substitutions Pursuant to CIPA § 6(c)(1) and Incorporated Memorandum of Law (filed Aug. 28, 2000) ["Supp. Motion"].

Under the prosecution's proposals, Dr. Lee would be prohibited from explaining to the jury, except in the most general terms, his reasons for believing that the files at issue have far less significance than the prosecution and its experts ascribe to them. Instead of describing his state of mind in his own words, he would be shackled to vague statements that the prosecution has drafted. Other defense witnesses would be prohibited from providing specifics to corroborate their opinions about the relative insignificance of the files. The defense could not use demonstrative exhibits designed to show the jury graphically how the codes functional and how the flaws diminish their value including, for example, charts illustrating the differences between [SEALED BY THE COURT] And on cross-examination of the prosecution's experts — who, as expected, intend to testify about the extraordinary sensitivity of the files — the defense would be prohibited from the kind of specific probing and testing that the recent bail hearing proved necessary.

The jury will decide this case based on its assessment of Dr. Lee's intent. His intent, in turn, rests in large measure on his understanding of the files' significance. That will be the focus of the trial. The prosecution has provided notice that it intends to call eighteen LANL scientists to address precisely that point.² The defense intends to call its own experts — although far fewer than the prosecution — and we expect Dr. Lee to testify as well. The jury (like the Court at the bond hearing) will be "confronted with radically divergent opinions expressed by several distinguished United States nuclear weapons scientists who are on opposite sides of the issue of the importance of the information Dr. Lee took." Memorandum Opinion, August 31, 2000, at 14-15. The jury will have to decide which of the "radically divergent opinions" it finds more persuasive — the view generally espoused by Drs. Robinson, Krajcik, and Younger that the tiles are so sensitive that they could change the "global strategic balance," or the view stated by Drs. Agnew, Goad, and Richter that the files are not particularly sensitive, in part because their contents have been widely published. The jury cannot possibly assess the credibility of these witnesses (or of Dr. Lee) or the soundness of their opinions without a detailed, intensive examination and cross-examination — precisely the kind of inquiry that the prosecution's substitutions would prohibit.

2 To give the Court an idea of the extent to which expert testimony about the significance of the files will pervade this case, we attach as Exhibit A the prosecution's expert notices (without attachments) for Dr. Jay Chapyak, Dr. Michael R. Clover, Dr. Jay C. Davis, Houston Terry Hawkins, Dr. Thomas R. Hill, Dr. James D. Johnson, Dr. John J. Keady, Dr. Richard A. Krajcik, Dr. Fred N. Mortensen II, Dr. Charles H. Neil, Dr. D. Kent Parsons, Dr. C. Paul Robinson, John Romero, Dr. Manjit S. Sahota, Gary C. Wall, Stephen W. White, Dale R. Worlton, and Dr. Stephen M. Younger. Each of these eighteen witnesses will address, in one form or another, the alleged significance of the files' contents.

The response first describes the framework in which the Court must evaluate the proposed substitutions and then addresses the prosecution's specific proposals.

I. THE RELEVANT LEGAL FRAMEWORK.

The Supreme Court has long recognized that "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302 (1973); see Washington v. Texas, 388 U.S. 14, 19 (1967) ("[T]he right to present a defense . . . is a fundamental element of due process of law."). The Court has declared that "[t]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quotation omitted). The defendant's fundamental right to present a defense includes the "right to take the witness stand and to testify in [his) own defense." Rock v. Arkansas, 483 U.S. 44, 49 (1987).

In addition to the right to present a defense, the Sixth Amendment guarantees a defendant the "fundamental right" to cross-examine witnesses for the prosecution. Pointer v. Texas, 380 U.S. 400, 404-05 (1965). Cross-examination is essential to the fairness and accuracy of a criminal trial; it is "critical for ensuring the integrity of the fact-finding process and is the principal means by which the believability of a witness and the truth of his testimony are tested." United States v. Begay, 937 F.2d 515, 520 (10th Cir. 1991) (quotation omitted); see, e.g., Davis v. Alaska, 415 U.S. 308, 316 (1974) ("Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested."); United States v. Esparsen, 930 F.2d 1461, 1469 (10th Cir. 1991) ("Reaching the truth is a fundamental goal of trials, and cross-examination is critical to the process."). The Supreme Court has declared that the "denial or significant diminution" of the right to cross-examine calls into question the "integrity of the fact-finding process." Chambers, 410 U.S. at 295 (quotation omitted).

In keeping with these principles, courts have refused to permit the government to bring criminal charges against a person and then withhold information that he needs to present a defense or to cross-examine prosecution witnesses. More than forty years ago, the Supreme Court declared that "`since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense.'"Jencks v. United States, 353 U.S. 657, 671 (1957) (quoting United States v. Reynolds, 345 U.S. 1, 12 (1953)). The Second Circuit, in an opinion by Judge Learned Hand, had earlier made the same point. The court declared:

While we must accept it as lawful for a department of the government to suppress documents, even when they will help determine controversies between third persons, we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate and whose criminality they will, or may, tend to exculpate. So far as they directly touch the criminal dealings, the prosecution necessarily ends any confidential character the documents may possess; it must be conducted in the open, and will lay bare their subject matter. The government must choose; either it must leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully.

United States v. Andolschek, 142 F.2d 503, 506 (2d Cir. 1944)

Congress enacted CIPA against the backdrop of these cases. It made clear that. the statute was procedural only and that it did not (and could not) change the fundamental constitutional principles on which a criminal defendant's rights to present a defense and to cross-examine prosecution witnesses rest. See, e.g., S. Rep. No. 96-823, at 9 (emphasizing that the defendant "should not stand in a worse position, because of the fact that classified information is involved, than he would without this Act"), reprinted in 1980 U.S. Code Cong. Ad. News 4294, 4302; 126 Cong. Rec. 26504 (Rep. Edwards notes that the House version of CIPA "is primarily a procedural bill," which "does not attempt to alter substantive rights or to change the rules of evidence or criminal procedure").

The substitution provision of CIPA makes this point explicit; it permits the use of a substitution only if the court finds that it "will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information." CIPA § 6(c)(1) (emphasis added). Congress adopted this standard, in place of a more general requirement that "the defendant's right to a fair trial not be prejudiced by a substitution, "to make it clear that alternate disclosure was to be allowed only if the court found that it was, in effect, equivalent disclosure." H. Rep. No. 96-831, pt. 1, at 20 (1980) ; see H. Rep. No. 96-831, pt. 2, at 6 (1980) (by ratifying the substitution provision of CIPA, the House Judiciary Committee "does not mean to suggest that any hardship to the defense should be permitted. . . . It is the Committee's intent that there be no impairment of either the defendant's ability to present his case or his right to a fair trial as a result of the operation of this section.").³

3 The prosecution asserts that in assessing substitutions, the Court may "weigh the interests of national security against the need to provide [Dr.] Lee with a fair trial." Motion S. The prosecution is wrong. Congress (guided by the constitutional considerations outlined above) struck the balance between national security and the defendant's rights when it adopted the "substantially the same ability to make his defense" standard. United States v. Fernandez, 913 F.2d 148 (4th Cir. 1990), the case the prosecution cites on this point, in fact rejects "a mechanical balancing rule," notes that, while a court must take into account the government's interest in protecting national security, "this interest cannot override the defendant's right to a fair trial," and concludes that, "[w]ere it otherwise, CIPA would be in tension with the defendant's fundamental constitutional right to present a complete defense." Id. at 154.

Under some limited circumstances, a substitution plainly will give a defendant "substantially the same ability to make no defense" as will underlying classified information. before Congress, for example, the Department of Justice posited a case in which the defendant sought to demonstrate that a government agent urged him to commit the crime, and the government would be permitted to admit or summarize the relevant facts without disclosing the agent's name. E.g. Hearing on S. 1482 Before the Subcomm. on Criminal Justice of the Senate Comm. On the Judiciary, 96th Cong., 2d Sess. 9 (1980) (statement of Assistant Attorney General Philip B. Heymann). Similarly, Congress noted that if the defendant wishes to show his access to a particular type of data, an admission by the government to that effect, without disclosure of the underlying data, may suffice. See, e.g., Hearing S. Rep. No. 96-823, supra, at 9,reprinted in 1980 U.S. Code Cong. Ad. News at 4302. But beyond such narrow circumstances, vague summaries or even admissions do not give a criminal defendant substantially the same ability to make his case as testimony and documents.,

The Supreme Court has expressly recognized the superiority of specific evidentiary detail over an abstract stipulation or substitution. In upholding the general right of the prosecution to prove its case without regard to defense stipulations, the Court declared that "[e]vidence . . . has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. This persuasive power of the concrete and particular is often essential to the capacity of jurors to satisfy the obligations that the law places on them." Old Chief v. United States, 519 U.S. 172, 187 (1997)

The Court added that "[a) syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. . . . [J]urors asked to rest a momentous decision on the story's truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard,"Id.; see also, e.g., United States V Crowder, 141 F.3d 1202, 1206-08 (D.C. Cir. 1998) (en banc) (applying Old Cheif to reject defense stipulation in lieu of Rule 404(b) evidence concerning intent), cert. denied, 525 U.S. 1149 (1999); United States v. Allen, 798 F.2d 985, 1001 (7th Cir. 1986) (declaring that a "cold stipulation can deprive a party of the legitimate moral force of his evidence . . . and, can never fully substitute for tangible, physical evidence or the testimony of witnesses") (quotations omitted); Alire v. United States, 313 F.2d 31, 34 (10th Cir. 1962) (agreeing that "as a general proposition no party is required to stipulate with his adversary and may insist on proving the facts of his case"); Parr v. United States, 255 F.2d 86, 88 (5th Cir. 1958) ("A party is not required to accept a judicial admission of his adversary, but may insist on proving the fact. . . . The reason for this rule is to permit a party to present to the jury a picture of the events relied upon. To substitute for such a picture a naked admission might have the effect to rob the evidence of much of its fair and legitimate weight.") (quotation omitted).⁴

4 In Old Chief, the Supreme Court essentially adopted the government's argument on this point. Contrary to its position here, the government contended that "[s]tipulations frequently fail to convey the breadth of information contained in physical evidence or live testimony, and do not facilitate the permissible factual inferences that jurors frequently must make from the evidence presented." Brief for the United States, Old Cheif v. United States, No. 95-6556, 1995 U.S. Briefs 6556. The government's brief quoted Perr for the proposition that, as a general matter, "(a] party is not required to accept a judicial admission of his adversary," because to substitute an admission for "a picture of the events relied upon" might "rob the evidence of much of its fair and legitimate weight." Id. at n. 14 (quoting Perr, 255 F.2d at 88 (internal quotations omitted)). At oral argument, an Assistant to the Solicitor General declared that "[t]he principle that. we're sticking up for here is not that the district judge has to let us run how the courtroom is run, but that we have a right to try our own case without our adversary shaping how our evidence comes in . . . through technical concessions." 1996 U.S. TRANS LEXIS 83, at *34 (Oct. 16, 1996).

The wisdom of Old Chief has particular power here. As its expert notices indicate, the prosecution will do its best at trial (as it did at the detention hearing) to portray Dr. Lee as an unparalleled threat to this country's security. The defense will ask the jury to reject the prosecution's false portrait and acquit Dr. Lee. Jurors cannot possibly be expected to fulfill their duty to render a not guilty verdict, and permit Dr. Lee to walk out of the courtroom a free man, unless the defense has available the "persuasive power of the concrete and particular." The Old Chief reasoning applies with added force to defense evidence, because the defendant, unlike the prosecution, has a constitutionally guaranteed right to testify in his own defense, Rock, 483 U.S. at 49; to present other evidence in his defense, Chambers, 410 U.S. at 302; and to confront and cross-examine the witnesses against him, Davis, 415 U.S. at 316-18. Vague substitutions drafted by the prosecution rarely can vindicate these basic rights.

The Fourth Circuit's decision in United States v. Fernandez, 913 F.2d 148 (4th Cir. 1990), illustrates the difficulty of devising substitutions that protect the defendant's right to a fair trial when (as here) the charges arise directly from the defendant's classified work. Fernandez — the former CIA station chief in Costa Rica — was charged with false statements and obstruction arising in part from interviews he had given to investigators about an airstrip project in Costa Rica. To establish the truth of his statements (and the absence of obstruction), Fernandez found it necessary to discuss certain classified aspects of his work, including the relationship between the airstrip project and three other projects with which he was involved. The district court rejected the prosecution's proposed substitutions, and the Fourth Circuit affirmed.

The court of appeals noted that the substitutions "fell short of informing the jury about . . . information about the origin, purpose, and scope of the three projects." Id. at 158. It explained:

The substitutions would have precluded the defense from demonstrating the integral relationship between the airstrip project about which he is accused of lying and the other three projects whose purposes support his version of events. Fernandez himself would have been unable to testify about his understanding of the projects and their relationship to one another, and he would have been precluded from introducing numerous classified CIA communication cables that he authored that would flesh out the common purpose of the projects (including the airstrip project).

Id. The court added:

To address [the charge of lying about the airstrip] requires Fernandez to paint a — concrete — and — detailed picture of his working environment as he saw it. We agree with Fernandez's contention that the substitutions would preclude the defense from "present[ing] a coherent case of its own, since it would be shackled to a script written by the prosecution." If the vague, extremely abbreviated descriptions of the projects were accepted as exclusive substitutes for Fernandez's own testimony about his role in and understanding of the projects, for classified cables written by him that. corroborated his understanding, and for his direct and cross-examination of witnesses involved in these projects, Fernandez's constitutionally guaranteed ability to present a defense would be severely compromised.

Id. see id. at 161 (upholding rejection of other proposed substitutions on similar grounds).

The Fourth Circuit concluded that "[t]he nature of the charges against (Fernandez] demand that he be able to place his job before the jury in a concrete, palpable context, and that he be able to explain his understanding of the world in which he worked." Id. at 164. It declared that "[t]he district court acted within its discretion in determining that the government's attempt to exclude evidence necessary to demonstrate this background, as well as its effort to require the defendant to use abbreviated and lifeless substitutions for this crucial evidence, would have deprived Fernandez of any real chance to defend himself." Id.

II. THE PROSECUTION'S PROPOSED SUBSTITUTIONS DO NOT MEET THE STANDARflS SET FORTH IN CIPA § 6(c)(1) AND REQUIRED "BY THE FIFTH AND SIXTH AMENDMENTS.

Under the standards set forth above, the Court should reject the prosecution's proposed substitutions. Just as in Fernandez, Dr. Lee must be permitted "to paint a concrete and detailed picture of this working environment as he saw it." 913 F.2d at 158. Forcing Dr. Lee to accept the proposed substitutions in lieu of his own testimony and direct and cross-examination of live witnesses would "severely compromise" his ability to present a defense by robbing him of "[t]he persuasive power of the concrete and particular."

If the Court accepts the prosecution's substitutions for the content of the files, Dr. Lee will be unable to testify in detail about his' understanding of the relatively low significance of the files, arising in part from the prior publication of virtually all of the information contained within them, the flaws that would tend to reduce their usefulness, and the difficulty of interpreting them without user manuals and material identification documents. Dr. Lee will be unable to explain in detail how c-he files related to his work at LANL. He will be unable to corroborate his testimony with particular portions of the files and other documents, a number of which he wrote. He will be unable effectively to cross-examine prosecution witnesses who claim that the files represent the "crown jewels," who deny that all or virtually all of the information in the files has been published in the open literature, who minimize the flaws in certain codes, who claim that input decks amount to electronic blueprints, or who testify that the files do not relate to Dr. Lee's duties. He would, in short, be "shackled to a script written by the prosecution." Neither CIPA nor the Constitution permits such a mockery of a trial.

A. The Proposed Substitution Concerning Prior Publication.

The prosecution's proposed substitution concerning prior publication (Supp. Motion 2-3) does not come close to satisfying the CIPA § 6(c)(1) standard. The prosecution's proposal — like most of its substitutions — admits nothing, cf. Id. § 6(c)(11)(k) (noting that a substitution may "admit relevant facts that the specific classified information would tend to prove"); instead, it proposes that the Court. adopt the so-called "silent witness" approach, under which the jury, the witness, and counsel would have the relevant documents (here, the code and the article), but no reference could be made to the name or author of the article or to the specific subject matter of the comparison.

Courts have rejected the "silent witness" approach under analogous circumstances. As Judge Gerhard Gesell explained. "This technique for denying public access to the full proof in the interests of protecting national security cannot serve the requirements of this particular case which will involve thousands of pages of redacted material and numerous substitutions. Cross-examination would still be stultified and confusion would undoubtedly increase. Moreover, the parties would both be at hazard because the jury might rely on nondisclosed information which could not be dealt with in open court." United States v. North, 1998 U.S. Dist. LEXIS 16008. at *7-*8 (D.D.C. Dec. 12, 1988).

Similarly, in Fernandez, Judge Hilton rejected a prosecution proposal to proceed under the "silent witness" approach, and the court of appeals affirmed that determination. See 913 F.2d at 161-62. Although rejection of the "silent witness" approach in Fernandez rested in part on its belated presentation, the district court and the Fourth Circuit found the proposal inadequate on the merits as well. The court of appeal. noted that the approach — which, in Fernandez, involved "key cards" that identified locations and projects by a code known to the jury, the witness, and counsel — "is an artificial means of presenting evidence." Id. at 162. The court added that the proposal remained "sketchy," in that it did not make clear "how much latitude the key card substitutes would give Fernandez to tell his story about the CIA involvement in the (Contra] resupply operation." Id. And the court of appeals found that "it. was within the district court's discretion to believe that, in addition to its artificiality, the complicated, key card system might confuse or distract the jury." Id.

As in North and Fernandez, the "silent witness" approach will not give Dr. Lee "substantially the same ability to make his defense" as would use of the classified information. To demonstrate his lack of criminal intent, Dr. Lee intends to establish at trial that virtually all of the information in the files has either been published in the open literature or can be readily derived from information in the open literature. Two points are particularly important in this connection. First, Dr. Lee intends to provide concrete examples of such publication, along the lines of the pleading we submitted to the Court demonstrating the prior publication of certain aspects [SEALED BY THE COURT]⁵ of He will explain the examples, both to permit the jury to understand the significance and role of the physics and mathematics at issue and because the correspondence between the equations in an article and the same equations expressed in computer language in a code may not be apparent to a lay jury. The specific examples are critical, because they will permit Dr. Lee to show the jury that his testimony about prior publication has a sound basis and is not (as the prosecution undoubtedly will argue through its many experts) an after-the-fact fabrication.

5 [SEALED BY THE COURT]

Under the prosecution's approach, Dr. Lee would be permitted to point out the relevant portions of the article and the code, but he could not explain the significance of the physics and mathematics at issue, nor could he explain the correspondence between what appears in the article and the contents of the code. As we understand the prosecution's approach, Dr. Lee could say nothing more than, for example, "pages two and three of the article in front of you correspond to lines 1000 through 1100 of the code in front of you." With that terse testimony, the jury will not be able to see for itself that the article and the code in fact correspond, and it will have no idea of the significance of the correspondence.

Second, Dr. Lee must be permitted to emphasize for the jury the fact that he and his colleagues wrote many of the articles at issue and published those articles in the open literature after they had been reviewed and approved by the LANL classification experts. This fact is critical to Dr. Lee's understanding that the files contain intonation that has been widely published and that they have relatively little significance. Under the prosecution's proposal, the jury would be able to read for itself that Dr. Lee and others at LANL or LLNL had written the articles, but Dr. Lee would not be permitted to explain the significance of that fact to his state of mind or the process by which LANL reviewed the articles for classified content before publication. In both of these respects, the prosecution's proposed substitution would prevent Dr. Lee from telling his story to the jury or, in the words of Fernandez, painting a "concrete and detailed picture of his working environment as he saw it."

The prosecution's proposal also would cripple Dr. Lee's ability to cross-examine the prosecution witnesses. Those witnesses intend to deny (as Drs. Robinson and Krajcik did at the recent bond hearing) that virtually all of the information in the files either has been published in the open literature or can be readily derived from the open literature. See, e.g., expert notices for Chapyak, Ready, Krajcik, Robinson, and White; To challenge these denials, detailed cross-examination is essential. At c-he bond hearing, for example, Dr. Robinson sharply disputed Dr. Richter's testimony that 99% of the information appears in the open literature. T. 8/16/00 at 129. On cross-examination in the closed session, however, Dr. Robinson could identify only a few bits of information that he claimed had not been published, T. 8/16/00 at 179-92, and he was forced to concede that one aspect of that information —

Similarly, Dr. Krajcik disputed the open publication of much of the information in the files, but he had to concede on cross-examination that [SEALED BY THE COURT]

These are merely examples that illustrate The importance of detailed, specific cross-examination; at trial, we would expect to conduct a more comprehensive examination.

The prosecution's proposed open literature substitution would prohibit or severely restrict cross-examination along the lines that Drs. Robinson and Krajcik faced at the bond hearing. For example, defense counsel could not ask the prosecution witnesses to identify information in the files that had not appeared in the open literature. If counsel asked this question which is an essential introduction to the entire line of cross-examination — the witnesses could answer only by vague, uninformative generalities or by pointing silently to a portion of the files. For example, Dr. Robinson could not respond to the question by identifying [SEALED BY THE COURT]

or he could attempt to point silently to certain input decks. The first approach would mean little either to the jury or to defense counsel. No effective impeachment would be possible, and counsel could not ask the obvious follow-up question "What features are you referring to?" Nor would the second approach work; the input decks do not state explicitly that they represent citing to line numbers on a computer printout would make clear what the witness was talking about.

To give another example, Dr. Robinson cited the use of a specific material [SEALED BY THE COURT]

He could not provide that testimony under the prosecution's proposal. Instead, he could either testify generally — "a certain material used in certain secondaries" — which would confuse the jury and make impeachment and rebuttal impossible, or he could point to a portion of particular input deck, which (apart from being inordinately time-consuming, as the witness paged laboriously through the listings searching for the reference) would tell counsel and the jury nothing, because most materials are listed by number only.

The prosecution's proposal prevents effective cross-examination in another way. Suppose a prosecution witness finds a way to testify that a particular physics algorithm has never been published. Suppose further that, on cross-examination, defense counsel calls the witness' attention to an article and As permitted by the prosecution proposal, asks the witnes whether a particular portion of the article contains the algorithm in question. And suppose the witness answers, "No." How does counsel continue the cross-examination? He cannot ask specific questions about equations that appear in the code and in the article. He cannot ask questions about the purpose of the algorithm in the code and the equations in the article, to establish that they are the same. He cannot ask the witness to explain differences between the code algorithm and the article. He must, in other words, accept the witness' answer, even if it could be readily impeached with further examination. That is hardly the cross-examination that the Sixth Amendment guarantees.

Consider another example. [SEALED BY THE COURT]

According to the prosecution's expert notices, it intends to contest this point through the testimony of Dr. Jay Chapyak. [SEALED BY THE COURT]

How can defense counsel follow up? Under the prosecution's proposal, counsel could not ask Dr. Chapyak to describe [SEALED BY THE COURT]

Nor could counsel ask Dr. Chapyak to specify how [SEALED BY THE COURT] that counsel calls to his attention. If Dr. Chapyak insists that [SEALED BY THE COURT]

We could multiply these examples endlessly: The point is simple: the "silent witness" approach, under which counsel witness, and jury can point to and examine portions of documents but cannot discuss them except in generalities, will not work in this case. In place of robust, adversarial give-and-take (such as occurred during the closed sessions of the bail hearing the Court would preside over a confusing and artificial pantomime among the witness, counsel, and the jury. As Judge Gesell observed in North, "[c]ross-examination would . . . be stultified and confusion would undoubtedly increase. Moreover, the parties would both be at hazard because the jury might rely on nondisolosed information which could not be dealt with in open court." North, 1998 U.S. Dist. LEXIS 16008, at *7-*8. As Fernandez notes, the "silent witness" approach "is an artificial means of presenting evidence" — particularly Dr. Lee's own testimony, which the jury will scrutinize as part of its effort to assess his credibility. 913 F.2d at 162. As in Fernandez, the prosecution's proposal remains "sketchy," in that it does not make clear "how much latitude the [silent witness approach] would give [Dr. Lee] to tell his story about" his understanding of the files' relative insignificance. Id. And, as in Fernandez, the prosecution's proposal "might confuse or distract the jury." Id. For all of these reasons, the Court should reject the prosecution's proposed substitution on the prior publication issue.

B. Flaws.

The prosecution proposes a series of substitutions concerning flaws [SEALED BY THE COURT] (Code A), [SEALED BY THE COURT] (Code B), and [SEALED BY THE COURT] (Code G). Supp. Motion 7-14. Although we address the specific proposals individually below, they share certain deficiencies that cause them to fall well short of the standard that the Fifth and Sixth Amendments and CIPA § 6(c)(1) mandate.

The proposed substitutions consist of vague statements that do not come close to capturing Dr. Lee's understanding of the significance of the flaws. Those statements not only drastically understate the importance of the flaws; they also would prevent Dr. Lee and other defense witnesses from explaining to the jury what the flaws mean. For example, [SEALED BY THE COURT]

"[W]hen modeling the explosion of a primary using code B, to fully complete the modeling, it is necessary also to utilize another classified nuclear weapons code, known for purposes of this case as code Q." Supp. Motion 7. This substitution would prevent Dr. Lee and other defense witnesses from explaining that it. is [SEALED BY THE COURT]

In short, the substitution would deprive Dr. Lee of the "persuasive power of the concrete and particular" in explaining the significance of [SEALED BY THE COURT] to his state of mind, and it would deprive the jury of any ability to understand the nature of [SEALED BY THE COURT]

To cite another example, the prosecution proposes the following substitution [SEALED BY THE COURT] "Code B has limitations modeling the primary as it. gets more and more compressed. The limitations relate to the mesh, which is a set of discrete space and time points upon which a physical or mathematical problem is specified so that it can be solved by computational methods." Supp. Motion 8. This substitution dramatically understates [SEALED BY THE COURT] at least from Dr. Lee's perspective; it prevents Dr. Lee and his witnesses from explaining [SEALED BY THE COURT]⁶ and it prevents the defense from pointing out that [SEALED BY THE COURT]

6 Indeed, the prosecution asserts that the fact [SEALED BY THE COURT]

Taken together, the "flaws" substitutions would transform Dr. Lee's testimony (and that of the defense experts) from a concrete, detailed explanation of the problems and their significance (both singly and in combination), with appropriate background to put the flaws in context, into a series of vague statements, scripted by the prosecution, that minimize the flaws' importance and give the jury no basis to determine for itself the credibility of Dr. Lee's testimony about the effect of the flaws on his assessment of the files' significance.

The deficiencies in the substitutions become particularly glaring with respect to cross-examination. The prosecution apparently contemplates that both parties will recite the vague substitutions and "thereafter debate the seriousness" of the flaws. Supp. Motion 11. But how would such a "debate" proceed? The prosecution presumably will call its stable of LANL experts to testify in general terms that the flaws are insignificant. The defense will call a smaller number of experts to testify that the flaws sharply reduce the value [SEALED BY THE COURT]."⁷ Under the prosecution's substitution proposal, neither side can conduct a probing cross-examination of the other side's experts, and the jury will have no concrete basis for deciding whether the flaws are significant (thus corroborating Dr. Lee's testimony that the flaws caused him to think the codes had considerably less value than the prosecution claims) or insignificant (thus undermining Dr. Lee's testimony).

7 "The defense will corroborate this testimony with documentary evidence, including, for example [SEALED BY THE COURT] It appears doubtful, under the prosecution's substitution proposal, that the defense would be permitted to introduce this document in its case-in-chief or to use it in cross-examining the prosecution experts.

Suppose, for example, that a prosecution expert testifies that the necessity [SEALED BY THE COURT]

The defense apparently would not be permitted to ask on cross-examination about the extent to which the shift from [SEALED BY THE COURT] causes a loss of accuracy in the primary calculation. Nor would the defense be able to explore the necessity for the link [SEALED BY THE COURT]

To cite another example, the prosecution proposes a substitution with respect to [SEALED BY THE COURT] see Supp. Motion 8) and states that "(t]he government, of course, is free to point out that this problem has been addressed in this particular code, Lee's evidence notwithstanding." Supp. Motion 8. How does the defense cross-examine that claim? Under the Prosecution's proposal, counsel cannot even identify the [SEALED BY THE COURT]

Thus, the prosecution would remain tree to dispute the significance of [SEALED BY THE COURT] and the defense would be powerless to contest that testimony through a probing cross-examination.

We could offer dozens of such examples. The fundamental point is simple: the absence of detailed cross-examination invites arbitrary decisionmaking. Without such cross, which the prosecution's substitution proposal forecloses, the jury may well decide the issues concerning flaws based on random factors such as the number of experts on each side. On these issues concerning the files' significance — the heart of this case — accurate factfinding is essential, and thorough cross-examination must be permitted if the jury is to perform that function.

We turn now to a brief discussion of the prosecution's specific substitution proposals concerning [SEALED BY THE COURT]

It is important to point out in this connection that the prosecution's proposals admit almost nothing. Moreover, the proposals apply only to Dr. Lee; they appear to place no restrictions at all on the prosecution. The prosecution seeks on one hand to restrict Dr. Lee's ability to use the "persuasive power of the concrete and particular" in his own case and on cross-examination, while retaining the ability to contest virtually every relevant fact.

1.

We have addressed the inadequacies of this proposal above. The prosecution's vague statement — which does not even mention [SEALED BY THE COURT] would deprive Dr. Lee of the ability to explain his understanding of the significance of this problem and would render impossible effective cross-examination of prosecution witnesses who attempt to minimize it.

Dr. Lee intends to testify and present other evidence that [SEALED BY THE COURT] In place of this detailed testimony, essential to rebut the prosecution claim [SEALED BY THE COURT] the prosecution proposes that Dr. Lee "disclose publicly only that a commercially available code has utility in modeling nuclear weapons." Supp. Motion 8. Dr. Lee could then introduce [SEALED BY THE COURT] but only under seal, using the inadequate "silent witness" approach discussed above — and could "opine . . . that the particular code in question is better than code B." Id. The prosecution would remain "free to argue that while this publicly available code could have some utility in this area, code B does a better job."Id.

This proposal has two obvious problems. first' it would prevent Dr. Lee and other defense witnesses from providing concrete grounds for their opinion

All the defense could offer would be the bare opinion, with no supporting detail or reasons. Second, under the prosecution's proposal, the defense would have no means of cross-examining prosecution witnesses who testify that [SEALED BY THE COURT]

Defense counsel could not ask the prosecution witnesses about [SEALED BY THE COURT]

[SEALED BY THE COURT] In short, the jury would be confronted with "radically divergent" opinions and no factual basis on which to distinguish between them.

3.

We have discussed above the obvious inadequacy of the prosecution's proposed substitution [SEALED BY THE COURT] both for the defense case and on cross-examination.

4.

The prosecution's substitution concerning the [SEALED BY THE COURT]

First, the proposed substitution presents a vague statement, completely devoid of context a jury that hears Dr. Lee or another defense witness recite the prosecution script — without any ability to explain the terms — will not understand even what the substitution means, much less its potential significance.

Second, the substitution admits nothing. The prosecution proposes the substitution "for use by (Dr.) Lee," and it emphasizes that it "is free to argue that this problem is minimal or, with respect to code A, non-existent." Supp. Motion 9. Thus, the prosecution proposes to shackle Dr. Lee and his witnesses to a vague script that will be meaningless to the jury; proposes to retain its ability to deny, through its legion of LANL experts, that the flaw exists at all; and it proposes that Dr. Lee be denied the ability on cross-examination to probe the prosecution witnesses' claims through detailed questions about [SEALED BY THE COURT]

5. Proposed Substitutiona Concerning

[SEALED BY THE COURT]

These proposed substitutions suffer from the deficiencies outlined above.⁸ They limit Dr. Lee and his witnesses to vague statements that drastically understate the importance of the flaws; they prevent Dr. Lee and his witnesses from explaining why the flaws are significant and render the codes less valuable than the prosecution claims; they admit nothing and leave the prosecution experts tree to deny that the flaws exist or that they have any significance; and they make it impossible f or defense counsel to test such claims through detailed, probing cross-examination. Viewed individually or collectively, the proposed substitutions do not come close to giving Dr. Lee "substantially the same ability to make his defense" as would the ability to explain the flaws to the jury and cross-examine the prosecution experts about them.⁹

8 The prosecution appears to misunderstand our point about [SEALED BY THE COURT]
We suggest that the Court require the prosecution to propose a substitution on this point (after consultation with the defense if necessary) in sufficient time to permit the parties to address it at the September 19 hearing.

9 The proposed substitutions also contain a variety of factual errors. If the Court were to approve the substitutions in form, we would bring these factual matters to the prosecution's attention and attempt to resolve them. At this stage, however, when the proposed substitutions fall so dramatically short of the CIPA § 6(c)(1) standard, discussions about specific factual disagreements appear premature.

6. Conservation of Computer Time

Although this proposed substitution contains factual inaccuracies, it is acceptable in concept. We will work with the prosecution to resolve the factual issues.¹⁰

10 Through an apparent typo, the prosecution omitted a heading relating to [SEALED BY THE COURT]

7. [SEALED BY THE COURT]

The prosecution denies that this flaw exists and refuses to provide a substitution. Because the prosecution has not sought a substitution, the parties will be free to debate the issue in whatever terms they choose at trial, subject, of course, to Rule 403 and the other rules of evidence.

8. Substitution Concerning [SEALED BY THE COURT] and Adjustable Parameters (Supp. Motion 14).

The prosecution proposal concerning the "fudge factors" in [SEALED BY THE COURT] completely misses our point. Dr. Lee and other defense witnesses will testify at trial that [SEALED BY THE COURT]

As a result, [SEALED BY THE COURT]¹¹

11 Nor can [SEALED BY THE COURT] As Dr. Krajcik acknowledged at the recent bond hearing (and as we intend to elicit at trial), the codes are not "predictive," in that they will not produce a result that the user can confidently say will be the same as what will happen in physical reality. T. 8/17/00 at 139.

The prosecution's proposed substitution — "The large number of adjustable parameters in Code G would in principle make it easier for one to adjust the code to fit a limited number of experimental results," Supp. Motion 14 — does not come close to capturing this point. The substitution would make it impossible for Dr. Lee and other defense witnesses to explain to the jury the [SEALED BY THE COURT] and it would prevent effective cross-examination of prosecution experts who attempt to minimize the code's weakness.

C. User Manuals and Material Identification Documents.

The prosecution's proposed substitution concerning user manuals (Motion 5-6) falls short under CIPA § 6(c)(1) in several respects. Most importantly, the substitution is vague and lacks the "concrete detail" of the actual manuals and relevant portions of the codes. Dr. Lee will testify that the codes would be extraordinarily difficult to understand and operate without the manuals (which are not included in the downloaded material). The prosecution apparently will take the position that the user manuals are useful but not essential, e.g., T. 12/13/99 at 55-58 (Dr. Younger), and will adhere to the view that the codes written in high level computer language can be read "like a book," T. 12/13/99 at 69 (Younger); see T. 12/27/99 at 181 (Dr. Krajcik testifies that the codes written in high level language are "readable to a physicist trained in computer language); T. 12/28/99 at 218-19 (Krajcik testifies that a physicist from another country could understand the files as they were downloaded).

The jury cannot resolve this dispute without more concrete information than the proposed substitution provides. To illustrate this point, we have attached as Exhibit B the table of contents and some representative pages from the user manual, of which Dr. Lee was a co-author. As the court will see, the manual explains [SEALED BY THE COURT] execution and input file setup; it lists well over 100 input specification variables that the code uses and for each variable provides the purpose, the type, related variables, a description, the default setting, warnings, and in some instances an example; it describes different forms of output; and it discusses error messages. The wealth of information contained in this more than 200 page document (and in the user manuals for the other codes)¹² cannot possibly be conveyed by the prosecution's terse, five-paragraph substitution. Dr. Lee needs the actual user manuals to corroborate his testimony about his understanding of the manuals' significance. He also needs the manuals (and relevant portions of the codes) to cross-examine prosecution witnesses who (like Dr. Younger) attempt to minimize the significance of the manuals and to claim that the codes can be read "like a book" even without them.

12 Despite repeated assurances that it would do so, the prosecution has not yet produced the user manuals for any codes other than [SEALED BY THE COURT].

Unlike the prosecution's user manual substitution, its proposal concerning material identification documents (Motion 6-7) may be workable with one key modification: the substitution should be expanded to include the classified equation of state and data files, which, we believe, identify materials solely by number.¹³

13 At the recent bond hearing, there was testimony that certain of the data files contain material identification documents. Although we do not believe that this is correct, we will examine the cited files. If those files in fact identify the materials by name, then we will agree that they should be excluded from the substitution.

D. Comparison of Input Decks and Nuclear Weapons Blueprints.

The prosecution proposes a substitution concerning the comparison of an input deck with a blueprint that, if it were modified in certain respects (for example, by pointing out that a blueprint can be read far more easily than an input deck), and if it were cast as an admission under CIPA § 6(c)(1)(A), might suffice. Remarkably, however, the prosecution proposal admits nothing. It seeks on one hand to deprive Dr. Lee of the right to compare an input deck with an actual blueprint during his case-in-chief and on cross-examination, and on the other hand to retain the ability (through the expert testimony of Dr. Fred Mortensen, Gary Wall, and Dale Worlton) to claim that an input deck is equivalent to an electronic blueprint and in some respects more valuable. The prosecution cannot have it both ways; it cannot force Dr. Lee (and the jury) to forego a comparison between an input deck and an actual blueprint while at the same time claiming that the two are functional equivalents.

E. Nevada Test Site Data/Benchmarking.

The prosecution (at Supp. Motion 4-6) correctly divides this category into two components: the appearance (or lack of appearance) in the files of data drawn from actual tests at the Nevada test site, and the use of "fudge factors" to cause the codes to produce results that bear some resemblance to physical reality. We discuss these aspects in turn.

1. Incorporation of Test Site Data.

The prosecution seems unable to determine whether (and where) Nevada test site data appears in the files. At the recent bond hearing, Dr. Krajcik conceded that "raw data per se" does not exist on the tapes. T. 8/17/00 at 125. Instead, according to Dr. Krajcik, the data manifest themselves only indirectly in the codes, the input decks, and the data files. Id. at 125-42; see also T. 8/16/00 at 23-24 (Dr. Richter testifies that source codes and data files do not contain raw test data and that input decks usually do not). Now, however, the prosecution asserts that "the government will offer evidence at trial that actual Nevada test-site data is contained within the opacity data files and the equation-of-state files that are involved in this case." Supp. Motion 4 (emphasis in original)¹⁴ We intend to contest that point at trial. For this purpose, it is essential that we be permitted to cross-examine the prosecution witnesses by asking them to identify the nuclear test site data in the opacity and data files and to question them in detail about their basis for contending that any data they identify comes from nuclear testing rather than, for example, from equations and data published in the open literature.

14 It is not clear how the prosecution proposes to present this evidence. According to the prosecution's expert notices, neither of the two witnesses who will testify about the equation of state and opacity files — Drs. James Johnson and John Keady — will say anything about the existence of Nevada test site data in those files.

In a similar vein, the prosecution proposes the following substitution for Dr. Lee's intended evidence that the classified equation of state and opacity data can be derived from equations and other data available in the open literature: "Certain classified EOS and opacity data files involved in this case contain information that can be derived from unclassified, publicly available information." Supp. Motion 5. This substitution fails for several reasons. First, Dr. Lee intends to testify to his belief (and to present corroborative evidence) that all or virtually all of the classified equation of state and opacity data can be derived from equations and data available in the open literature.¹⁵ The proposed substitution drastically understates the extent to which, in Dr. Leeds view, such data can be found in or derived from the open literature.

15 To be precise, we do not necessarily intend to show that the equations LANL scientists have used to derive the classified equation of state and opacity data appear in the open literature.

Second, although the prosecution proposal would permit Dr. Lee, under the "silent witness" approach, to show the jury the open publications in which the relevant equations and data can be found, he (and other defense witnesses) would not be permitted to explain the link between [SEALED BY THE COURT]

[SEALED BY THE COURT]

Third, the prosecution apparently intends to dispute (through the testimony of Drs. Johnson and Ready) the defense contention that [SEALED BY THE COURT]

2. Bencbmarking.

Dr. Lee intends to testify to his belief (and to present corroborating evidence) that the codes' inability to model nuclear explosions accurately from first principles — that is, their lack of "predictiveness" — diminishes their significance. He and other witnesses will explain (perhaps through the "mix" example that Drs. Richter and Krajcik discussed, see T. 8/16/00 at 32-34; T. 8/17/00 at 133-36) that designers arbitrarily change parameters in the input deck (the "fudge factors") to permit the codes to produce models that bear some resemblance to physical reality. And defense counsel will use this point to cross-examine prosecution witnesses who praise the codes' accuracy and value.

In place of a full explanation of the "fudge factor" approach — which is critical to understanding the relatively low esteem in which Dr. Lee holds the codes — the prosecution proposes the following substitution: "Certain information in the codes at issue in this case was adjusted in light of data developed from actual nuclear weapons tests." Supp. Motion 6. Apart from its factual inaccuracy — the adjustments occur in the input decks, rather than in the codes — this substitution utterly fails to capture the point made above: that the necessity for fudge factors to produce an accurate model underscores the codes' lack of predictiveness. Although the prosecution insists that the proposal leaves Dr. Lee "free to argue that the codes lack utility in designing nuclear weapons because so often when compared to actual nuclear weapons tests they end up needing adjustment," Supp. Motion 6, the substitution on its face provides no factual basis for making such an argument. In other words, unless Dr. permitted to explain the process by which designers use arbitrary "fudge factor" adjustments to make the code results resemble physical reality, the jury will have no basis for assessing his contention that the so-called "benchmarking" process highlights the codes' inefficacy.

The proposed substitution would also cripple Dr. Lee's cross-examination of the prosecution experts. The prosecution apparently intends to argue that the "fudge factor" approach makes the codes more valuable rather than less valuable. Supp. Motion 6. To challenge this testimony effectively, defense counsel must be permitted to explore with the prosecution witnesses precisely what the use of fudge factors entails (arbitrary setting of parameters such as mix or material stiffness to produce an overall result that resembles physical reality) and to elicit the point that the codes will not accurately predict, from first principles, the yield from a nuclear device.

F. Work Related Information.

As we noted at the July 12 CIPA hearing, we do not at this point contemplate the use of classified information in the defense case-in-chief to explain the relation of the files to Dr. Lee's official duties. We have reserved the right, however, to use such information to rebut prosecution claims that specific files do not relate to Dr. Lee's duties and to cross-examine prosecution witnesses who make such claims. The prosecution has agreed to notify the defense on this point no later than September 8, see Supp. Motion 7, and we will include any responsive classified information in our September 12 CIPA notice,

III. THE CUMULATIVE EFFECT OF THE PROSECUTION'S SUBSTITUTIONS.

For the reasons we have set forth at length, the prosecution's substitutions (with the few exceptions noted above) do not: meet the standard that the Fifth and Sixth Amendments and CIPA § 6(c)(1) require. The preceding discussion of the individual substitutions makes that deficiency clear. Consideration of the substitutions cumulatively — covering almost every aspect of the defense, from prior publication of the information in the files, to flaws in the codes, to the significance of user manuals, to the use of "fudge factors," and on and on — reveals just how dramatically they would skew the trial against Dr. Lee.

This case will turn on Dr. Lee's intent. His testimony will mark the pivotal moment in the trial. The jury will scrutinize his demeanor and way of speaking to assess his credibility. It will consider the clarity of his recollection and the detail with which he supports his account of his state of mind. It will weigh the contrary testimony of the LANL scientists and assess how they withstand cross-examination. Under these circumstances, it is critical that Dr. Lee have at. his disposal the "persuasive power of the concrete and particular," Old Chief, 519 U.S. at 187; that he, like Fernandez, "be allowed to tell the jury exactly what he was doing," 913 F.2d at 164 — and, more importantly, thinking — when he downpartitioned and downloaded the files; that he, like Fernandez, "be able to place his job before the jury in a concrete, palpable context, and that he be able to explain his understanding of the world in which he worked," id.; and that he have available the necessary tools for a probing and detailed cross-examination of the prosecution experts.

The prosecution's proposals would force Dr. Lee to "use abbreviated and lifeless substitutions" for the "crucial evidence" concerning his understanding of the files' significance. Id. In place of Dr. Lee's vivid, detailed, and context-rich explanation of his understanding that the files have relatively little importance, the proposals would leave him "shackled to a script written by the prosecution." Id. at 158. The substitutions would damage Dr. Lee's credibility with the jury, by replacing the spontaneous and natural speech of a man discussing a subject to which he has devoted his adult life with a series of artificial snippets that he would have to either read or recite by rote from memory. The substitutions would reduce cross-examination of the eighteen prosecution experts to a series of general questions that would elicit general answers to which no follow-up would permitted. The substitutions would produce a stage play in place of a trial, a play in which the actors (including defense counsel and Dr. Lee himself) would mouth lines that the prosecution has scripted.

The prosecution will attempt to convince the jury — as it has attempted to convince this Court — that Dr. Lee presents an unparalleled threat to national security. It will play upon the jury's fear that a vote to acquit could change the "global strategic balance" or amount to a "you bet your country" mistake. In the face of these tactics, Dr. Lee must have at his disposal the concrete and detailed evidence that will be required to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict" and to support "the capacity of jurors to satisfy the obligations that the law places on them." Old Chief, 519 U.S. at 187. Forcing Dr. Lee to use the prosecution's script would, in the words of the Fernandez court, "deprive(] [Dr. Lee] of any real chance to defend himself." 913 F.2d at 164.

CONCLUSION

For the foregoing reasons, the Court should hold under the Fifth and Sixth Amendments and CIPA § 6(c)(1) that the prosecution's proposed substitutions for the contents of Files 1 through 19 and Tape N (with the exception of the substitutions for conservation of computer time in [SEALED BY THE COURT] and materials identification documents) would not give Dr. Lee substantially the same ability to make his defense as would the contents of the files themselves.

Respectfully submitted,

O'MELVENY MYERS LLP

By: Mark Holscher

400 South Hope Street Los Angeles, CA 90071 Telephone: (213) 430-6000 Fax: (213) 430-6407

FREEDAM BOYD DANIELS HOLLANDER GOLDBERG Cline, P.A.

By: John D. Cline Nancy Hollander

20 First Plaza, Suite 700 Albuquerque, NM 87102 Telephone: (SOS) 842-9960 Fax: (505) 842-0761 Attorneys for Defendant

EXHIBIT A

EXPERT WITNESS NOTICE CHARLES H. NEIL

OPINIONS:

Dr. Charles H. Neil will testify to all opinions he expressed in his testimony that was read to the grand jury on December 9, 1999. Dr. Neil also will offer expert witness testimony about files 4.13-4.18, 18.6-18.8, 18.19, 18.21. 18.22., 18.44. 18.45. 18.61-18.63. 18.71, N.1. and N.3-N.6. He will testify that tapes C and N relate to the national defense of the United States.

Dr. Neil will describe the relationship between the input decks that are contained in flies 4 and 18. and codes F and B. which appear in file 4 and on tape N. respectively Dr. Neil will describe codes F and B as used for modeling primaries of nuclear weapons.

[(necessary, Dr. Neil will address the relationship between code B and another code. code Q, and will respond to any defense evidence concerning purported flaws. in the manner described above with respect to code A and Mr. White.

BASES FOR OPINIONS:

The bases for Dr. Neil's opinions were disclosed in his testimony that was read to the grand jury on December 9, 1999. Dr. Neil's opinions also are based on his knowledge of and familiarity with the codes and the contents of the lies and tapes referenced above. His opinions are further based on his familiarity and knowledge of the work of X-Division at LANL. and his experience in the field of developing and designing thermonuclear weapons.

QUALIFICATIONS:

Dr. Neil's qualifications to testify were disclosed in his testimony that was read to the grand jury on December 9, 1999. His qualifications also are reflected in his resume. which bears Bates numbers LANL/003805 to 003806 and is attached to this notice.

EXPERT WITNESS NOTICE STEPHEN WILLIAM WHITE

OPUNIONS:

Stephen William White will offer expert testimony concerning code A and files 2, 3, and 10, as described in the indictment He will testify that code A is used for modeling secondaries in nuclear devices, and will explain that modern nuclear devices — thermonuclear devices — are built with primaries and secondaries. He will opine that the versions of code A that appear in files 1 and 2 would assist a foreign nation that currently has the ability only to manufacture atomic weapons to manufacture thermonuclear weapons, and to do so in a way that would make detection difficult. He will state that code A has been used to model U.S. nuclear devices that have been successfully tested.

Mr. White will describe and explain the relationship between the input and output files that are contained in files 2.15.4, 2.15.12, 2.15.13, 2.15.14, and 2.15.17; and code A. Similarly, Mr. White will describe and explain the relationship between the contents of files 3 and 10; and code A, with particular focus on the classified component files. He also will identify which component flies in file 3 are input decks depicting nuclear devices that have been successfully tested by the United States.

Mr. White will testify that tape H relates to the national defense of the United States.

If necessary, Mr. White also will refute and respond to any defense evidence regarding purported "flaws" that exist in code A. He will testify that some of these so-called flaws do not exist, and that others are limitations that always exist whenever computer models are used to simulate the explosion of a nuclear weapon. If necessary, he will also testify "that certain publicly available information the defense claims is in code A is in fact not, and that to the extent publicly available information does appear in code A, code A considered as a whole is not publicly available.

BASES FOR OPINIONS:

Mr. White's opinions are based on his knowledge of and familiarity with the code and the contents of the files and tape referenced above. His opinions also are based on his familiarity and knowledge of the work of X-Division at LANL, and his experience in the field of developing and designing thermonuclear weapons.

QUALIFICATIONS:

Mr. White's qualifications to testify are reflected in his resume, which bears Bates number LANL/003814 and is attached to this notice.

EXPERT WITNESS NOTICE JAY CHAPYAK

OPINIONS:

Dr. Jay Chapyak will offer expert testimony regarding code H. and its relationship with code K. He will testify that code H and K together are used to model relatively simple primaries in nuclear devices. He will identify code H as appearing in files 8 and 11, and code K as appearing in file 16. Dr. Chapyak will also offer expert testimony regarding files 9.1, 9.2-9.4, 9.6, 9.8, 9.15-9.21, 12.14, 12.20, 12.21, 15.26, 1527, 15.46-15.53, and 17.11. He will describe these files as containing material identification number information, material interface information, descriptions of simple primaries, and graphical output. He will also describe the relationship between these files! and codes H and K.

Dr. Chapyak will testify that tapes D, F and G each relate to the national defense of the United States.

If necessary, Dr. Chapyak will also respond to any defense evidence regarding purported flaws in code H (in the same manner described earlier with respect to Mr. White and code A), will refute that code H is the same as the unclassified code identified by the defense in their Second CIPA § 5 Notice, and will refute that a commercially available code is better than code K.

BASES FOR OPINIONS:

Dr. Chapyak's opinions are based on his knowledge of and familiarity in the codes and the contents of the files and tapes referenced above. His opinions also based on his familiarity and knowledge of the work of X-Division at LANL, and his experience in the field of developing and designing thermonuclear weapons.

QUALIFICATIONS:

Dr. Chapyak's qualifications to testify are reflected in his resume, which bears Bates number LANL/003772 and is attached to this notice.

EXPERT NOTICE MICHAEL R. CLOVER

OPINIONS:

Dr. Michael R. Clover will offer expert testimony regarding files 13.2-13.4. and 14.1-14.5, and regarding code G, which is used to model secondaries. He will explain the relationship between the physics packages that appear in files 14.1 and 14.2. and Code C itself. He will opine that code C is the most "physics-rich" code in X Division. and that it has been used to explain phenomena occurring in nuclear weapons explosions not adequately explained by other codes.

Dr. Clover will testify that tapes L and M each relate to the national defense of the United States because they would help a foreign nation move from the development of atomic weapons to thermonuclear weapons.

BASES FOR OPINIONS:

Dr. Clover's opinions are based on his knowledge of and familiarity with the code and the contents of the files and tapes referenced above. His opinions also are based on his familiarity and knowledge of the work of X-Division at LANL. and his experience in the field of developing and designing thermonuclear weapons.

QUALIFICATIONS:

Dr. Clover's qualifications to testify are reflected in his resume, which bears Bates number LANL/020001 and is attached to this notice.

EXPERT WITNESS NOTICE JAY C. DAVIS

OPINIONS:

Dr. Jay C. Davis will testify about the significance of the information on the tapes and files at issue in the indictment and that the information relates to the national defense of the United States. In particular, Dr. Davis will testify concerning the potential benefit of the information on the tapes to a non-nuclear state seeking to start a nuclear weapons program. or to a sub-national group seeking to attain a nuclear weapons capability. Dr. Davis will describe in an unclassified manner the extent to which nations with varying degrees of nuclear weapons capabilities could make use of the information on the missing tapes.

BASES FOR OPINIONS:

Dr. Davis's opinions will be based upon a review of the prosecution's evidence concerning what was contained in the tapes and files. His opinions also will be based on his experience as the Director of the Defense Threat Reduction Agency (Department of Defense) and his work at Lawrence Livermore National Laboratory as reflected in the attached resume.

QUALIFICATIONS:

Dr. Davis's qualifications to testify are reflected in his resume, which bears bates numbers ISS/000083 to 000094 and is attached to this notice.

EXPERT WITNESS NOTICE HOUSTON TERRY HAWKINS

OPINIONS:

Houston Terry Hawkins will testify about the significance of the contents on the missing tapes and how that information relates to the national defense of the United States. In particular, Mr. Hawkins will testify to the potential uses of the information by a variety of nations that have differing levels of sophistication in the area of nuclear weapons. Mr. Hawkins will state, in an unclassified maimer, his opinion to the potential damage to the United States based on the fact that Dr. Lee has deprived the United States of sole control over the information by the United States. He will address vulnerabilities to both the offensive and defensive systems of the United Stares.

BASES FOR OPINIONS

Mr. Hawkins's opinions are based on his knowledge of the information contained on the missing tapes. His opinions also are based on his employment responsibilities and knowledge gained through his employment at LANL and his previous training in both military and national security information.

QUALIFACATIONS:

Mr. Hawkins's qualifications to testify are reflected in his resume, which bears bates "numbers LANL/003775 to 003776 and is attached to this notice.

EXPERT WITNESS NOTICE THOMAS P. HILL

OPINIONS:

Dr. Thomas K. Hill will testify about files 16 and 17. and code K. He will describe the relationship between the input decks in files 17 and code K, which is used to model primaries. He also will testify that rape D relates to the national defense of the United States.

BASES FOR OPINIONS:

Dr. Hill's opinions are based on his knowledge of and familiarity with the code and the contents of the files and rape referenced above. His opinions also are based on his familiarity and knowledge of the work of X-Division at LANL. and his experience in the field of developing and designing thermonuclear weapons.

QUALIFICATIONS:

Dr. Hill's qualifications to testify are reflected in his resume, which bears Bates number LANL/020027 and is attached to this notice.

EXPERT WITNESS NOTICE JAMES DANIEL JOHNSON

OPINIONS:

Dr. James Daniel Johnson will offer expert testimony about files 4.14. 5.2. 5.3. 7.11. 7.12, and 19.7, and will explain the relevance of equation-of-state ("EOS") and other data files to computer simulations of nuclear weapon explosions. He will testify that equations of state describe the interrelationship among energy, density, pressure and temperature for particular substances, and will testify that data files contain information about the behavior of certain substances at extreme temperatures and pressures.

Dr. Johnson will testify that tapes C, H and K each relate to the national defense of the United States.

if necessary, Dr. Johnson will refute any defense evidence that classified EOS information and classified information in data files can be derived from open source information, in a manner similar to that of Dr. Keady with respect to opacity data information.

BASES FOR OPINIONS:

Dr. Johnson's opinions are based on his knowledge of and familiarity with the code and the contents of the files and tape referenced above. His opinions also are based on his familiarity and knowledge of the work of T-Division and X-Division at LANL and his experience in the field of developing and designing thermonuclear weapons.

QUALIFICATIONS:

Dr. Jobnson's qualifications to testify are reflected in his resume, which bears Bates numbers LANL/003777 to 003791 and is attached to this notice.

EXPERT WITNESS NOTICE JOHN J. KEADY

OPINIONS:

Dr. John J. Keady will offer expert witness testimony about files 5.4, 5.5. 7.13. 7.14, and 19.9, and will also address item 37, which was seized from the defendant's residence. He will discuss the definition of"opacity" in the context of nuclear weapon design. i.e., he will testify that opacity concerns the rate a material emits or impedes radiation. He will also testify as to how opacity information is used when a nuclear weapon simulation code is rum.

Dr. Keady will testify that tapes B and K relate to the national defense of the United States.

If necessary, Dr. Keady will refute defense evidence that classified opacity information can be derived from unclassified opacity information by testifying that this is not the case as a general matter and that any information so derived is not reliable.

BASES FOR OPINIONS:

Dr. Keady's opinions are based on his knowledge of and familiarity with the contents of the files and tapes referenced above and item 37. His opinions also are based on his familiarity and knowledge of the work of X-Division at LANL and his experience in the field of developing and designing thermonuclear weapons.

QUALIFICATIONS:

Dr. Keady's qualifications to testify are reflected in his resume, which bears Bates numbers LANL/019964 to 019970 and is attached to this notice.

EXPERT WITNESS NOTICE RICHARD A. KRAJCIK

OPINIONS:

Dr. Richard A. Krajcik will testify to all opinions he expressed during his testimony before Judge Parker at the detention hearing on December 27 and 28, 1999 and at the bail review hearing on August 17, 2000. To the extent that his testimony on August 17, 2000 included classified information, Dr. Krajcik will testify in a more general manner to avoid disclosing classified information. As reflected in the transcripts of the hearings referenced above, Dr. Krajcik will testify in an unclassified manner the the information on Files 1 through 19 and Tape N reflects almost the entire thermonuclear design capability of LANL during the period that defendant Wen Ho Lee gathered the information. Dr. Krajcik also will testify that there were no work-related reasons for Lee to compile the "library" of information he gathered together on Files 1 through 19 and download most of that information onto portable tapes. or to create Tape N. Dr. Krajcik also will testify that the information on Files 1 through 19 and Tape N, and on the other missing tapes, would be of great value to a variety of foreign powers with varying degrees of sophistication in both their nuclear weapons programs and their ability to manufactured nuclear weapons. Krajcik will testify that Lee took design information for a wide range of devices, ranging from simple to extremely optimized, which again would be useful to a wide range of foreign powers.

BASES FOR OPINIONS:

The bases for Dr. Krajcik's opinions were disclosed during his testimony December 27 and 28, 1999 and August 17, 2000. His opinions are based on his knowledge of the information contained on the missing tapes as well as all the information which was contained in Files 1 through 19 and Tape N. His opinions also are based on his familiarity and knowledge of the work of X-Division at LANL, and his experience in the field of developing and designing thermonuclear weapons.

QUALIFICATIONS:

Dr. Krajcik's qualifications to testify were disclosed during his testimony on December 27 and 28, 1999 and August 17, 2000. In addition, his resume, which bears bates numbers LANL/003800 to 003804, is attached to this notice.

EXPERT WITNESS NOTICE FRED N. MORTENSEN II

OPINIONS:

Dr. Fred N. Mortensen will offer expert testimony regarding files 3.1 and 3.4. and will explain how these input decks reveal critical information about nuclear weapon secondaries. If necessary, he will refine defense evidence that an actual nuclear weapon blueprint is more valuable, in the manner described above.

Dr. Mortensen will testify that tape H relates to the national defense of the United States.

BASES FOR OPINIONS:

Dr. Mortensen's opinions are based on his knowledge of and familiarity with the contents of the files and tape referenced above, and actual weapons blueprints. His opinions also are based on his familiarity and knowledge of the work of X-Division at LANL. and his experience in the field of developing and designing thermonuclear weapons

QUALIFICATIONS:

Dr. Morrensen's qualifications to testify are reflected in his resume, which bears Bates numbers LANL/0199744 to 019977 and is attached to this notice.

EXPERT WITNESS NOTICE D. KENT PARSONS

OPINIONS:

Dr. D. Kent Parsons will offer expert testimony regarding code C and file 6. He will describe the relationship between the input and output files in file 6, and code G. He also will testify that tape M relates to the national defense of the United States.

BASES FOR OPINIONS:

Dr. Parsons's opinions are based on his knowledge of and familiarity with the code and the contents of the file and tape referenced above. His opinions also are based on his familiarity and knowledge of the work of X-Division at LANL. and his expenencz in the field of developing and designing thermonuclear weapons.

QUALIFICATIONS:

Dr. Parsons's qualifications to testify are reflected in his resume, which bears Bates number LANL/003807 and is attached to this notice.

EXPERT WITNESS NOTICE C. PAUL ROBINSON

OPINIONS:

Dr. C. Paul Robinson will testify to all opinions he expressed during his testimony Judge Parker at the detention hearing on December 28, 1999 and at the bail review nearing on August 16 and 17, 2000. To the extent that Dr. Robinson's testimony on August 16 and 17, 2000 included classified information. Dr. Robinson will testifying a more general maimer to avoid disclosing classified information. As reflected in the transcnpts of the hearings referenced above, Dr. Robinson will testify in an unclassified manner that the transmittal of information on Files 1 through 19 and Tape N to an unauthorized possessor would result in injury to the United States and also would aid many foreign powers Dr. Robinson also will testify that the information on Files 1 through 19 and Tape N would be extremely valuable to any number of foreign powers, and that the value of the information and the use that any particular foreign power would make of the information would vary depending on the relative sophistication of the nuclear weapons program that the particular foreign power had in place. Dr. Robinson will further testify that the fact that seven tapes are missing itself affects the United States military strategy by depriving the United States of exclusive control over its thermonuclear secrets.

BASES FOR OPINIONS:

The bases for Dr. Robinson's opinions were disclosed during his testimony on December 28, 1999 and August 16 and 17, 2000. His opinions are based on his knowledge of the information contained on the missing tapes as well as all the information which was contained in Files 1 through 19 and Tape N. His opinions also are based on his familiarity and knowledge of the work of X-Division at LANL, his experience in the field of developing and designing thermonuclear weapons, his experience in the field of manufacturing nuclear weapons. and his participation in international talks related to limiting nuclear testing.

QUALIFICATIONS:

Dr. Robinson's qualifications to testify were disclosed during testimony on December 28, 1999 and August 16 and 17, 2000. In addition, his resume, which bears bates numbers DOE/001378 to 001379, is attached to this notice.

EXPERT WITNESS NOTICE JOHN ROMERO

OPINIONS:

John Romero will testify to all opinions he expressed in his testimony that was read to the grand jury on December 9, 1999 and in his live testimony before the grand jury on December 9, 1999. Mr. Romero also will testify to all opinions he expressed in his testimony before Judge Parker on December 28, 1999. Mr. Romero will offer expert testimony regarding code A and the contents of file 1. He will also testify that code A is used for modeling secondaries of nuclear devices. If necessary, Mr. Romero will also refute any defense evidence regarding purported "flaws" in code A, in the manner described above with respect to Mr. White.

BASES FOR OPINIONS:

The bases for Mr. Romero's opinions were disclosed in his testimony that was read to the grand jury on December 9, 1999, and in his live testimony before the grand jury on December 9, 1999. The bases for Mr. Romero's opinions were further disclosed in his testimony before Judge Parker on December 28, 1999. Mr. Romero's opinions also are based on his knowledge of and familiarity with the code and the contents of the file referenced above. His opinions also are based on his familiarity and knowledge of the work of X-Division at LANL, and his experience in the field of developing and designing thermonuclear weapons.

QUALIFICATIONS:

Mr. Romero's qualifications to testify were disclosed in his testimony that was read to the grand jury on December 9, 1999 and in his testimony before Judge Parker on December 28, 1999. Mr. Romero's qualifications to testify also are reflected in his resume, which bears Bates number LANL/020002 and is attached to this notice.

EXPERT WITNESS NOTICE MANJIT S. SAHOTA

OPINIONS:

Dr. Manjit S. Sahota will offer expert testimony regarding the contents of files 18.1. 18.45 and 18.62. He will testify regarding the uses of these flies in his work as a code developer and in the nuclear weapons research at LANL. He will address the value of these files to the United States and their uses and applications with other flies.

BASES FOR OPINIONS:

Dr. Sahota's opinions are based on his knowledge of the development and uses of the above-listed files when he was actively working on these files. Dr. Sahocas knowledge of the files and opinions related to the files are based on his education as a mechanical engineer and his experience as a code developer employed at LANL.

QUALIFICATIONS:

Dr Sahota's qualifications to testify are reflected in his resume, which bears Bates numbers LAN/019971 to 019973 and is attached to this notice.

EXPERT WITNESS NOTICE GARY D. WALL

OPINIONS:

Gary D. Wall will testify about files 12.14, certain input files in file 15, file 18, and file 18.22. Mr. Wall will explain how input files are the equivalent of an electronic blueprint for the key components of a nuclear weapon. If necessary he will refute defense evidence that an actual weapon blueprint is more valuable than any input file, by generally describing the details of an input deck that are nor depicted or described in an actual blueprint.

Mr. Wall will testify that tapes G and F each relate to the national defense of the United States.

BASES FOR OPINIONS:

Mr. Wall's opinions are based on his knowledge of and familiarity with the contents of the files and tapes referenced above and with actual weapons blueprints. His opinions also are based on his familiarity and knowledge of the work of X-Division at LANL. and his experience in the field of developing and designing thermonuclear weapons.

QUALIFICATIONS:

Mr. Wall's qualifications to testify are reflected in his resume, which bears Bates number LANL/003813 and is attached to this notice.

EXPERT WITNESS NOTICE DALE REID WORLTON

OPINIONS:

Dale Reid Wonton will offer expert testimony about file 4.23, which contains input decks relating to primaries. Mr. Warlton will testify as to how these input files are tantamount to blueprints for such primaries, and that they represent devices successfully tested by the United States. If necessary he will refute defense evidence that an actual weapon blueprint is more valuable by generally describing the details in these input decks that are not depicted or described in an actual blueprint.

Mr. Worlton will testify that tape C relates to the national defense of the United States.

BASES FOR OPINIONS:

Mr. Wonton's opinions are based on his knowledge of and familiarity with the contents of the file and tape referenced above, and with actual weapons blueprints. His opinions also are based on his familiarity and knowledge of the work of X-Division at LANL. and his experience in the field of developing and designing thermonuclear weapons.

QUALIFICATIONS:

Mr. Worlton received his Bachelor of Science degree in Physics from Utah State University in 1959. Mr. Worhon's work experience and qualifications to testify are reflected in his resume. which bears Bates number LANL/003815 and is attached to this notice.

EXPERT WITNESS NOTICE STEPHEN M. YOUNGER

OPINIONS:

Dr. Stephen M. Younger will testify to all opinions he expressed during his testimony which was read to the grand jury on December 9, 1999 and also which he expressed during his testimony before Judge Svet at the detention hearing on December 13, 1999. Specifically, Dr. Younger will testify in an unclassified manner that the information contained on the missing tapes could alter the global strategic balance of power if the tapes were given to a variety of foreign powers. Dr. Younger also will testify in an unclassified manner about the various uses that different foreign power would make of the missing rapes based on their sophistication with respect to nuclear weapons.

BASES FOR OPINIONS:

The bases for Dr. Younger's opinions were disclosed during his testimony which was read to the grand jury on December 9, 1999 and also during his testimony before Judge Svet at the detention hearing on December 13, 1999. His opinions are based on his knowledge of the information contained on the missing tapes as well as all the information which was contained in Files 1 through 19 and Tape N. His opinions also are based on his familiarity and knowledge of the work of X-Division at LANL. his experience in the field of developing and designing thermonuclear weapons, and his knowledge of other countries' nuclear weapons programs and the development of such programs generally.

QUALIFICATIONS:

Dr. Younger's qualifications to testify were disclosed during his testimony which was read to the grand jury on December 9, 1999 and also during his testimony before Judge Svet at the detention hearing on December 13, 1999. In addition, his resume, which bears bates number LANL/020000, is attached to this notice.

EXHIBIT B Manual Nuclear Weapon Data User Manual Sigma 2 May 15, 2989 RESTRICTED DATA This document contains Restricted Data as defined in the Atomic Energy Ad of 1954. Unauthorized disclosure subject to administrsztiw and criminal sanctions. Derivative Classifier Los Alamos National Laboratory Mart M. Jones LOS ALAMOS Los Alamos New Mexico 87545 OS-6 Classification Analyst Los Alamos National Laboratory is operated by the University of Califonria for the Usual State Department of Energy under contract W-7406-ENG-36. Edited by Patricia W. Alendius, IS-11 Prepared by Bernadette Archuicta, Group X-7 An Affirmative Action/Equal Opportunity Emplowr NOTICE Reproduction of this document requires the written permission of the originator, his successor, or higher authority. This report was prepared as an account of work sponsored by an agency of the United States Government. Neither the United States Government nor any agency thereof, nor any of their employees, makes andy warranty, express or implied, or assumes any legal liability or responsibility ofr the accuracy, completedness, or usefulness of any information, apparatis, products, or process disclosed, or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise, does not necessarily constitute or imply its endorsement, recomendation, or favoring by the United States Government or any agency thereof. The views and opinions of authors expressed herein do not necessarily state or reflect those of the United States Government or any agency thereof. USER MANUAL by June 30, 1989 Copyright 1985. The Regents of the University of California. This software was produced under a U.S. Government contract (W-7405-ENG-36) by Los Alamos National Laboratory, which is operated by the University of California for the U.S. Department of Energy. The U.S. Government is licensed to use, reproduce, and distribute this software. Neither the Government nor the University makes any warranty, express or implied, or assumes any liability or responsibility for the use of this software. Software Development Section Computational Physics Group, X-7 Applied Theoretical Division (X-Division) Los Alamnos National Laboratory

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CONTENTS

ABSTRACT 11

I. INTRODUCTION 13

II. EXECUTION 15

Interactive Execution 15 Batch Mode Execution 16 Location of Executable Code 16

III. INPUT FILE GENERATION USING 19 THE SETUP CODE

IV. INPUT SPECIFICATION 21

Title Line 21

Namelist C 21 CLASS 23 DBGOUT 25 26 PTLINK 27 RESTART 29 Namelist D 31 NSCPLL 32 NSCPLU 33 NSCPRL 34 NSCPRU 35 NSCTRL 36 NSCTRU 37 NSDL 38 NSDNSL 39 NSDNSU 40 NSDTJ 41 NSEND 42 NSGASL 43 NSGASU 44 NSLNEL 45 NSINEU 46 NSWLL 47 NStPLU 48 NSMSSL 49 NSMSSU 50 NSMTLL 51 NSMTLU 52 NSMWL 53 NSMVYU 54 NSNEUL 55 NSNEUU 56 NSPPLL 57 NSPRSL 59 NSPRSU 60 NSPR.TL 61 NSPRTU 62 NSSRFL 63 NSSRFU 64 NSVLCL 65 NSVLCU 66 Namelist P 67 APPRSTM 68 BORMAX 70 BCRMIN 71 BCZMAX 73 BCZMIN 74 DTSTART 75 ELPL 76 FCT 77 IAP 78 IGEOM 80 IHEBRN 81 IMAX 82 INTRP10 84 VACONS 85 VOID 86 JMAX 87 JMIN 89 JMINPTL 90 MAXIMAX 91 MAXJMAX 92 MSHRMAX 93 MSHVAR 94 MSHZMAX 96 MSHZMIN 98 MTLCHG 100 MTLDEL 102 MTLINIT 104 MTLSMRY 106 PTLIMIT 107 PTSMAXH 108 PTSMINH 109 QSWITCH 110 RMAX 111 RMIN 113 114 VBOMB 115 VUPMIN 116 ZMAX 117 ZMIN 118 ZORIGON 119 Namelist M 120 DISTR 121 DISTZ 123 MSHVARR 124 MSHVARZ 126 ZWELLSR 128 NCELLSZ 129 Namelist O 130 CPDUMPI 131 ICLPRNT 133 JCLPRNT 134 MONTRLN 135 MTLMSPR 137 MTLMVY 138 MTLPRPL 139 MTLVPR 140 MVYCOLR 141 MVYDIM 143 MVYGRID 145 MVYVAR 146 NEUMSH 147 OTCPR 149 OTDNS 151 OTSGAS 152 OTINE 153 OTMPR 154 OTMSS 156 OTMVY 157 OTNUE 159 OTPPL 160 OTPPR 162 OTPRS 163 OTSCPR 164 OTSDNS 165 OTSGAS 166 OTSINE 167 OTSMPR 168 OTSMSS 169 OTSMVY 170 OTSNEU 171 OTSPPL 173 OTSPPR 174 OTSPRS 175 OTSRF 176 OTSSRF 178 OTSVPR 179 OTVPR 180 PDUMPI 181 PDUMPT 182 PRPLDIM 184 SRFDIM 186 SRFEYE 188 SRFVAR 190

V. OUTPUTS 193

Monitor Line 193 Restart Dump 194 Cell Diagnostic Print 194 Cell Prints 195 Material Summary Print 1% 196 Surface Plot 197 Particle Plot 197 Neutronics Dump 197 GASFile 197 Movie 198 Unused Options 198

VI. ERRORS MESSAGES 199

Errors Detected by the Main Overlay 199 Errors Detected by the Setup Overlay 200 Errors Detected by the Hydrodynamics Overlay 203 Errors Detected by the Output Overlay 205 Errors Detected by the Dynamic Memory Manager 206

ACKNOWLEDGEMENTS 206

REFERENCES 207

INDEX 209

DISTRIBUTION 213

ABSTRACT

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I. INTRODUCTION

INTRODUCTION

[SEALED BY THE COURT] has no independent setup capability. It starts either by linking to a edit file or by restarting from a previously generated — restart file. Nearly all the hydrodynamics and EQS data needed to set up a probl, em come originally from the — edit file. ALJ references in this document to the code — apply as well to its predecessor [SEALED BY THE COURT]

Output from [SEALED BY THE COURT] comes in several forms as delineated below.

1. Packed-ASCII file [SEALED BY THE COURT] (or PFCON), which contains a relief summary of the progress of a [SEALED BY THE COURT] calculation.

2. Packed-ASCII file [SEALED BY THE COURT], which provides a more detailed Luminary of the progress of a [SEALED BY THE COURT] calculation.

3. 005 metafile PLOT, which contains most or all of the information from with labels plus plots and prints of cell date.

4. Packed-ASCII file [SEALED BY THE COURT]through which [SEALED BY THE COURT] links to the neutronics code,

5. An unformatted restart file [SEALED BY THE COURT] for use in a [SEALED BY THE COURT] restart run.

6. Random familiar file [SEALED BY THE COURT] for use with the GAS utility.

7. CGS metafile [SEALED BY THE COURT] which contains the particle plot movie data.

Section II describes [SEALED BY THE COURT] execution procedure in detail, inclZdibg a description of the input files needed for the execution. A procedure for setting up the input file, using a setup code called [SEALED BY THE COURT] is delineated in Section In. A detailed list of input specifications is presented in Section W. Section V describes the code output. Finally, a list of code error messages with the description of their meaning is presented in Section VI.

NAMELIST C

Namelist D

Namelist P

THIRD NOTICE OF DR. WEN HO LEE UNDUR SECTION 5 OF THE CLASSIFIED INFORMATION PROCEDURES ACT AND INCORPORATED MEMORANDUM CONCERNING THE USE, RELEVANCE, AND ADMISSIBILITY OF THE NOTICED INFORMATION In accordance with CIPA § 5 and the Court's scheduling orders, Dr. Wen Ho Lee submits his third notice of the classified information that he reasonably expects to disclose or to cause the disclosure of in connection with the trial of this case. We include in this notice a brief, general explanation of the huge, relevance, Land] admissibility" of the noticed information. We will provide a more detailed explanation at the CIPA hearing scheduled for September 19, 2000. By submitting this notice and the accompanying explanation of use, relevance, and admissibility, Dr. Lee does not intend to waive the issues presented in his motion challenging the constitutionality of CIPA §§ 5 and 6.¹

The classified information is as follows:

1. The contents of the 26 classified files to which reference is made at pages 4-5 of the prosecution's Rule 404(b) notice.² The contents of the files will be relevant to Dr. Lee's intent and on cross-examination of prosecution witnesses on some or all of the grounds on which the court has found the contents of riles 1 through 19 and Tape N to be relevant.

2 The United States's Notice of Intention to Offer Evidence Pursuant to Rule 404(b) of the Federal Rules of Evidence (filed Aug. 11, 2000) ("Notice").

2. The contents of the assertedly classified documents to which reference is made at Notice 5-6. The contents of the documents will be relevant to demonstrate their lack of sensitivity (and thus to negate the inference of criminal intent that the prosecution apparently seeks to draw from Dr. Lee's alleged mishandling of them) and to show, in some instances, that Dr. Lee did not have notice that the documents were classified. The documents will also be relevant to cross-examine prosecution witnesses who testify to the documents³ alleged sensitivity or, in some instances, their classified status. We note that not all of the listed documents have yet been produced, and we reserve the right to expand our explanation of the documents' relevance when production is complete.

3 Despite a written request on August 22, 2000, the prosecution has not yet made the 26 files available to the defense. Once the files have been made available, we will be in a better position to explain their relevance in detail.

3. The CIA documents bearing the Bates numbers 9/28/dscvy/1-58. These documents are relevant to negate any evidence that Dr. Lee intended to injure the United States or to secure an advantage for the PRC or that he acted willfully. The documents are also relevant to negate any inference of criminal intent that the prosecution may ask the jury to draw from the 1986 and 1988 incidents (and Dr. Lee's alleged failure to report those incidents) referred to at Notice 10-11. The documents are also relevant to cross-examine any prosecution witness who seeks to draw inferences from these incidents adverse to Dr. Lee and to rebut any such testimony.

4. The April 25, 1995 report. Review of the [SEALED BY THE COURT] Code by Gene H. McCall. LANL 16414-16. The report addresses flaws in [SEALED BY THE COURT] and is relevant for the reasons stated in the Court's Determinations and Order on First Notice of Dr. Wen Ho Lee Under Section 5 of the Classified Information Procedures Act at 3 (filed Aug. 1, 2000).

5. Classified computer security audit reports and similar documents, reflecting that transfers from the LANL closed partition to the open partition were common throughout the relevant period and that, despite repeated requests from DOE. LANL did little to control or prevent such transfers. E.g., ISS/1-17; FBI/1a254/1-220: FBI/sub-a/5029-61; FBI/sub-y/624-25 (report by Dr. Charles Neil and Cheryl Wampler on effort to investigate potential down-partitions of classified information). Thes reports are relevant to negate any inference of criminal intent that the prosecution might seek to draw from the assertedly unusual nature of Dr. Lee's actions, to cross-examine prosecution witnesses who provide such testimony, and to rebut prosecution claims to that effect. The reports also provide context for Dr. Lee's alleged actions, by demonstrating that transfers from the closed partition to the open partition were commonplace.

6. Letter dated August 17, 1992 from Dr. Sean P. Clancy of LANL to Aerospace Corp. and numerous other entities, announcing the availability of MESA2D, Version M5.0. FBI/1b036/299-300.

[SEALED BY THE COURT].

See Court Determinations and Order on Second Notice of Dr. Wen Ho Lee Under Section 5 of the Classified Information Procedures Act at 2-3 (filed Aug. 23, 2000). The Clancy letter is relevant on similar grounds.

7. Dr. Lee's performance reviews/personnel file during his career at LANL. LANL/342-434. These documents are relevant to establish the work-relatedness of Files 1 through 19 and Tape N, to cross-examine prosecution witnesses who assert that certain of the files are not related to Dr. Lee's duties, and to rebut any such evidence. The performance reviews are also relevant to rebut any prosecution' claim that Dr Lee was about the last-rate scientist up at that place [LANL]." T. 7/12/00 at 124.

We reserve the right to supplement our CIPA § 5 notices based on further review of the discovery provided to date. additional discovery. witness interviews, rulings by the Court, prosecution filings, said other, developments.

Respectfully submitted,

O'MELVENY MYERS LLP

By: MARK HOLSCHER Mark Holacher

400 South Hope Street Los Angeles, CA 90071 Telephone: (213) 430-6000 Fax: (213) 430-6407

FREEDMAN BOYD DANIELS HOLLANDER GOLDBERG CANE P.A.

By: JOHN D. CLINE John D. Cline Nancy Hollander

20 First Plaza. Suite 700 Albuquerque, NM 87102 Telephone: (505) 842-9960 Fax: (505) 842-0761 Attorneys for Defendant