Frank H. Wu is an associate professor of law at Howard University. Basic Books will published his Beyond Black and White in fall 1999. He is a regular commentator for IntellectualCapital.com. His e-mail address is fwu@law.howard.edu.

In recent months, the fears that mainland China will be an economic competitor and a military threat in the new millennium have exploded. Events that are dominating the headlines, from partisan presidential politics to the China-WTO debate, have served to heighten that perception.

Another example is the ongoing Wen Ho Lee situation. Following months of speculation about his role in the possible loss of secret designs for nuclear weapons, federal prosecutors in New Mexico have indicted Lee. Instead of representing the conclusion of an investigation, the ongoing prosecution of the Taiwanese-born scientist who worked two decades at Division X of Los Alamos national laboratories only opens up troubling issues about law enforcement in our diverse democracy.

Inside the castle

The Kafka-esque story would be absurd if it were not for the life imprisonment that could befall Lee, a naturalized citizen, not to mention the racial stereotyping that has become all too familiar to Asian Americans. Amidst all the allegations against Lee, it is amazing that the government does not claim and is not prepared to prove that Lee even intended to transfer classified information to a foreign country or that he ever did so either purposefully or accidentally. They accuse him of nothing more than carelessly maintaining computer files.

The manner in which Lee was targeted was more suspicious than he was

In the context of legal precedent as well as common sense, the accusations verge on the laughable. Lee appears to be the only researcher ever prosecuted for these offenses. The government and its contractors were notoriously lax in their procedures at the time of the events in question. High-ranking personnel such as former CIA Director John Deutch have admitted that they committed the same types of transgressions -- but, unlike Lee, Deutch did not meet with the ruination of his reputation. The manner in which Lee was targeted is more suspicious than he seems to be. Given the recent hysteria, aided by the campaign-finance scandal that portrayed Asian immigrants as the worst corrupting influence since the Watergate era, either a spy or a scapegoat had to be found.

Last year, a congressional committee chaired by Rep. Christopher Cox (R-CA.), reported that China had done grievous damage to national security. More than coincidentally, the Cox report suggested that every person of Chinese ancestry in this country was a potential foreign agent despite the services of some 15,000 persons of Asian background working for America in its defense sector.

Before Christmas, a group of Stanford University scholars published an extensive critique of the Cox findings, citing factual errors and exaggerated reasoning. The New York Times, which itself had advanced speculations similar to the Cox assertions, also has since published extensive analysis debunking the story it once promoted.

Looking for a scapegoat

Nonetheless, the Cox conclusions have continued to fuel concerns that a Communist government has acquired the W-88 warhead designs. The case against Lee, surprisingly enough, has virtually nothing to do with the W-88. The government itself has already conceded as much in open court.

While investigators were working on the W-88 -- they still have not figured out the original documents that triggered that panic; the papers look like a mish-mash of materials, including much that is taken from public sources -- they became obsessed with Lee for utterly unrelated matters.

The reasons officials singled out Lee are shameful. Robert Vrooman, the former security chief at Los Alamos and an ex-CIA officer, played a leading role in the investigations. He is one of several officials who have come forward to admit that Lee, whose wife was a FBI informant, was targeted because of his racial background.

The FBI began to develop its case against Lee only by misleading him into believing he had failed a lie-detector test that, in fact, he had passed. Just recently, the FBI has decided to re-open its files on hundreds of leads they failed to follow up due to their eagerness to chase Lee.

Lee's defense will not be easy. He had responsibilities for archiving data, but he downloaded massive numbers of files to his home computer after hours. The U.S. government approved his two visits for scientific purposes to China, but China is known for trying to acquire secrets from Chinese Americans by subtle means without asking them to engage in espionage.

Evidence of the race card

While Asian Americans are organizing on behalf of Lee, their critics say they are playing the race card and defending the guilty. Both sound-bite reactions are ironic.

It was the investigators, after all, who initially targeted Lee because of his race. His supporters are only observing the obvious in pointing out the problems with law-enforcement tactics. They are not the ones who are abusing race.

Furthermore, like anyone else accused of criminal conduct -- no matter how serious the charges -- Lee is entitled to a presumption of innocence. Indeed, it is exactly with the worst crimes that procedural protections for the defendant become crucial. To suggest that helping Lee is giving comfort to the spy is to assume that he is guilty before the evidence has even come in -- reflecting exactly the ease with which we believe that a Chinese American would betray the United States.

The problem is that whatever the merits of the prosecution, people confuse two distinct issues. On the one hand, there is the specific case against Lee. On the other hand, there is the general problem with stereotyping.

It is possible that Lee could turn out to be deserving of punishment. That possibility should not be ruled out as an absolute matter of faith simply because he has been mistreated as an Asian American. Yet, whether he is guilty or not, it has become even more certain that he has been the victim of selective prosecution, double standards and racial profiling, as well as used as an example to impugn others who share his heritage.

If Lee turns out to be innocent, then he should be acquitted on that basis. A dilemma arises only if Lee is somehow guilty, but also has been treated unfairly.

The process and the outcome cannot be separated easily. The process of suspicion is at least as important, if not more so, than the outcome. A flawed process of investigation casts doubt on the validity of any proof of guilt. In the adversarial system of criminal procedure, this is more evidence that justice is not blind. The facts do not appear automatically, and the verdict is not based on a single story. In order for justice to be done, Lee must be able to present his version of the truth rather than simply be placed in a box as a man with Asian characteristics.