http://transcripts.cnn.com/TRANSCRIPTS/0009/16/cg.00.html
SHIELDS: Welcome back.
Nuclear physicist Wen Ho Lee ended nine months of solitary confinement on espionage charges with a plea bargain. Judge James Parker scolded the prosecution.
Quote, "Government officials caused embarrassment not just for me but also have caused the nation embarrassment. I sincerely apologize for the unfair manner in which you were held," end quote.
The attorney general refused to apologize, but the president did.
(BEGIN VIDEO CLIP)
JANET RENO, ATTORNEY GENERAL: I think Dr. Lee had the opportunity from the beginning to resolve this matter, and he chose not to. And I think he must look to himself.
WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: I don't think that you can justify, in retrospect, keeping a person in jail without bail when you're prepared to make that kind of agreement? So I, too, am quite troubled by it. (END VIDEO CLIP)
SHIELDS: Al, who's right, the president or the attorney general?
HUNT: If the president means what he says, he ought to demand either immediate accountability or the resignation of Janet Reno, Louis Freeh, the FBI director and Energy Secretary Bill Richardson.
Mark, as "The L.A.Times" said this week, what those three did is they kept this man in solitary confinement for nine months under shackles, denied him bail in order to pressure him to confess to a crime that he didn't commit. That is Constitutionally impermissible, and it is an absolute outrage.
I also think it's quite clearly this was a case of racial profiling. If his was name was Lee H. Winston, he never would have been, you know, picked on like this.
And, Mark, you may -- he illicitly downloaded classified material. So did John Deutsche, the former CIA director. He hasn't been put in shackles yet. This is a shameful episode. Clinton ought to act on what he said.
O'BEIRNE: I totally agree with Al on this one, except I -- well, except look what Bill Clinton's doing here. He acts as if the Justice Department is an independent fourth branch of government. They all work for him.
And, of course, it's the legacy of having an incompetent attorney general. This is not the first time she's in over her head because she was so detached. But look, why didn't Bill Clinton interfere sooner? Well, the explanation because he always felt uneasy about the fact that this man was being held in solitary for nine months. Well Joe Lockhart tells us, well, he didn't want the bad press, You would have been all over him. He didn't mind bad press when he was protecting his own disordered, predatory behavior, but he didn't want to risk bad press to protect the civil rights of this poor man.
SHIELDS: You've been an officer of the court, Ed Rendell -- your reaction?
RENDELL: As a district attorney, obviously the result is very strange. It doesn't in any way justify being held without bail, clearly. But I think -- I don't know if the president had all the facts. I think before I would totally commend this case, I'd want to know what the facts were. If Al's correct, and that was the sole reason he was being held in jail, that is inappropriate conduct. I just don't think we know all the facts.
NOVAK: Oh, Ed, the president was exactly right -- I don't often say that -- when he says...
SHIELDS: I'll say.
NOVAK: ... that if you have a plea bargain for one count out of 59, you shouldn't have had him in solitary confinement for nine months. It doesn't matter what the facts are.
Now I would say this...
RENDELL: But, Al, I can tell you...
NOVAK: ... I think that the president has got a confusion. I think he has already begun his new career as a commentator, because he's kind of acting, well, I don't have anything to do with that. It's not my responsibility. I'm not going to do anything in the future.
But I will say one thing. I've been saying at this table for a long time...
SHIELDS: You have not at this table.
NOVAK: The old table -- that Janet Reno is a disaster.
O'BEIRNE: Correct.
NOVAK: She was a poor appointment, she is a pathetic old woman. I feel sorry for her because she's ill, but she gets these terrible cases all the way from Waco to this and she says, well, we've acted on the basis of the law and the evidence. She never says anything, and she gets a soft press outs of it. She's a disgrace.
HUNT: And I disagree with you, but on this one you're right. An FBI agent named Robert Messner (ph) lied under oath. Why hasn't he been fired?
SHIELDS: Last word -- Al Hunt. Ed Rendell, thank you for being with us.
THE GANG will be back with the "Outrage of the Week."
(COMMERCIAL BREAK)
SHIELDS: And now for the "Outrage of the Week."
Ronald Reagan was a popular two-term president who many Republicans and most conservatives continue to revere. The National Airport has been renamed for Mr. Reagan, and so, too, has an enormous new federal office building in Washington. Now, on direct contradiction of U.S. law which bars memorials to anyone American until at least 25 years after his or her death, Republicans on a House committee want to build a Republican memorial to join Abraham Lincoln and George Washington on the national Mall. Let's obey the law and wait the required 25 years, for goodness sakes.
Bob Novak.
NOVAK: The teachers in Buffalo, New York, are something else. Not only have they defied state law by going on strike but ignored a judge's back-to-order -- back-to-work order until temporarily complying yesterday. The only people who suffer are the children. But the Buffalo Teachers Federation doesn't care. Like other teachers unions, it is arrogant, entrenched power in the Democratic Party and intimidating the Republicans. They block school reforms, then hit the streets for contract demands. Clearly, decline in public schools has accompanied rising union power by teachers.
SHIELDS: Kate O'Beirne.
O'BEIRNE: It's wrong to profit from messages that poison our culture and teach our children that killing is cool. That was Senator Lieberman in the past, criticizing the music industry, This week, he joined the vice president for a $6 million fund raiser with their friends in the music industry, where his campaign directly profited from the sex and violence Hollywood peddles to our kids.
SHIELDS: Al Hunt.
HUNT: Mark, Senators Mitch McConnell and Judd Gregg tried to sneak through a provision to let federal judges rake in honoraria from any manner of special interests. Incredibly, this had the blessing of Chief Justice Rehnquist. Senate Majority Leader Trent Lott may have let the cat out of the bag by declaring that this could pave the way to lift the honoraria ban on senators, too. If judges or senators need more money, do it through the front door of pay increases, not the back door of legalized bribery.
SHIELDS: This is Mark Shields saying good night for THE CAPITAL GANG.
Saturday, September 16, 2000
Thursday, September 14, 2000
Judge Scolds U.S. Over Case Tactics
http://articles.latimes.com/2000/sep/14/news/mn-20908
By Bob Drogin
September 14, 2000 in print edition A-1
Wen Ho Lee walked out of court a free man Wednesday after a federal judge repeatedly apologized for incarcerating him for nine months without trial and angrily rebuked the Clinton administration for its handling of a case that “embarrassed this entire nation.”
In a morning marked by high drama, laughter and tears of joy, the former Los Alamos nuclear weapon scientist agreed in thickly accented English to a negotiated deal that brings an abrupt end to the highly controversial case.
Lee pleaded guilty to one felony charge of illegally retaining national defense information. He was sentenced to the 278 days he has served since his arrest. The government dismissed all 58 other counts, many of which carried life sentences.
“Next few days, I’m going fishing,” Lee declared with a broad grin on the mobbed courthouse steps after his release. His lawyer Mark Holscher called it “a sweet day indeed.”
In a sworn statement provided as part of the deal, Lee said for the first time that he did not intend to harm the United States when he downloaded classified nuclear weapon data onto an unsecured computer and portable tapes at Los Alamos and that he had not passed the tapes or their contents to anyone.
Lee, 60, also agreed to submit to intense debriefings by government investigators for 10 days over the next three weeks and further questioning if necessary over the next year to satisfy government concerns about why Lee created the tapes and what he did with them. Lee could face further prosecution if he fails to comply.
Norman Bay, U.S. attorney for New Mexico, called the resolution of the high-profile and highly controversial national security case “a favorable disposition for the government and a fair disposition for the defendant.”
But the court hearing was dominated by U.S. District Judge James A. Parker’s stunning summation, an emotion-charged monologue in which he repeatedly apologized to Lee and bitterly condemned government prosecutorial tactics.
Speaking in somber tones to a packed and hushed courtroom, Parker excoriated what he called the “top decision-makers in the executive branch.” He particularly criticized the White House, U.S. Atty. Gen. Janet Reno, Energy Secretary Bill Richardson and the FBI for their roles in bringing the case.
“They have embarrassed this entire nation and each of us who is a citizen of it,” Parker said.
The decision to prosecute Lee, he said, “was made at the highest levels of the executive branch in Washington, D.C.” He cited a meeting of senior Justice and Energy Department officials at the White House on Dec. 4, six days before Lee was indicted.
The executive branch, Parker warned, “has enormous power, the abuse of which can be devastating to our citizens.”
In contrast, Parker effusively praised Lee’s lawyers as “outstanding” and said that they would have provided a “formidable” defense had the case gone to trial.
“You turned a battleship in this case,” the judge told Lee’s lawyers from the bench.
Prosecutors sat stone-faced through much of Parker’s harsh scolding. The FBI’s chief investigator, Robert Messemer, whose recantation last month of his own testimony sharply undermined the prosecution’s case, scowled. Messemer, a beefy man with slicked-back hair, avoided reporters after the hearing.
An FBI source in Washington said that, while Messemer’s conduct in the case will be routinely reviewed, the agency seems to believe that his testimony “wasn’t that inaccurate” and it is doubtful he will be disciplined.
But Parker, who took over as chief federal judge in New Mexico this month, repeatedly said that the government “misled” him by exaggerating evidence against Lee in December when prosecutors insisted that the Taiwan-born scientist should be denied bail and held incommunicado in jail until his trial.
“Dr. Lee, I feel great sadness that I was led astray” during the December bail hearing, Parker said.
Parker, 63, also criticized John J. Kelly, the former U.S. attorney here, who quit in January to run for Congress. Before leaving, Kelly “personally argued vehemently against your release and persuaded me not to release you,” the judge told Lee.
“In hindsight, you should not have been held in custody,” he added.
Until recently, Lee spent his time in virtual solitary confinement in a Santa Fe jail. He was allowed to see his family one hour a week and to exercise alone one hour a day. He was shackled hand and foot even during those periods, however, as well as during his meetings with his lawyers.
Parker complained that the government moved much too slowly, despite his urgings, to ease the conditions of Lee’s confinement.
“Dr. Lee, you were terribly wronged by being held in pretrial custody in demeaning and unnecessarily punitive conditions,” Parker said. “I am truly sorry.”
Parker also questioned why the government ignored an offer by Lee’s lawyers, shortly before his indictment Dec. 10, for Lee to take a polygraph test at Los Alamos to answer questions about the tapes. Had they responded, the judge suggested, the last nine months might have been avoided.
“Nothing came of it, and I am saddened that nothing came of it,” Parker said.
But Parker called it “most perplexing” that the government, which repeatedly fought to keep Lee in jail, “should suddenly agree to release you” without any conditions. “This makes no sense to me.”
Lee’s family and supporters burst into loud applause when Parker dismissed the court–and closed the sensational case–shortly after 1 p.m. here. Many wept, hugged and cheered as they filed out into the blinding New Mexico sunshine.
The plea arrangement was hammered out last weekend after a series of secret sessions but nearly collapsed Monday shortly before the plea was to be filed and Lee was to go home.
In a case marked by agonizing cliffhangers, prosecutors insisted on additional concessions at the last minute, including a demand that Lee submit to government questions for more time than in the original proposed agreement.
The court-appointed mediator, U.S. 9th Circuit Court of Appeals Judge Edward Leavy, rushed to Albuquerque on Tuesday from his home in Portland, Ore., to negotiate a compromise. He met prosecutors and defense lawyers until nearly 3 a.m. Wednesday before the stalled deal was revived.
Lee will pay no fine or restitution under the agreement and is not subject to probation or supervision. He must get approval from the government if he wishes to travel abroad during the next year, but Leavy will mediate any disputes.
Lee arrived at his home in White Rock, a suburb of Los Alamos, at 5:30 p.m. local time to a tumultuous welcome from friends and supporters, as well as a crush of reporters and camera crews crowded around his simple wood-and-brick bungalow.
In a brief statement, Lee thanked his neighbors. “They made me very strong when I was in jail,” he said.
The first sign that Lee was going home came at 7:50 a.m., when defense attorney Holscher strode up the courthouse steps with a broad smile. “It’s a good morning, a very good morning,” he said.
But a 9 a.m. hearing was quickly postponed until 10, and that was pushed back another hour as lawyers drafted final wording of the deal. Lee, who wore a dark gray suit and a blue tie, appeared relaxed as he waved at friends and laughed with his lawyers. His wife, Sylvia, daughter, Alberta, and son, Chung, waited silently in the front row of the courtroom.
Finally, at 11:02, the silver-haired Parker entered the courtroom in his flowing black robes.
“I understand the parties have finally agreed,” he announced.
Lee raised his right hand, fingers splayed far apart, as he was sworn in beside his lawyers. For the next 90 minutes, the judge patiently explained the 10-page plea agreement, stopping every few minutes to ask Lee if he understood and agreed.
Although Lee has lived in the United States since the 1960s and is a naturalized U.S. citizen, he asked the judge to repeat himself several times or turned to his lawyers for a whispered explanation. “Now I understand, yes,” he then would answer.
As a convicted felon, Lee will lose the right to run for office, serve on a jury, possess a gun or vote.
“You’ll be giving up your right to cast a vote about what was done to you,” Parker told Lee. “Do you understand?”
“Yes,” Lee replied softly.
Finally, Lee read aloud his crime: “On a date certain in 1994, I used an unsecured computer in T-Division to download a document or writing relating to the national defense,” he began.
Lee said he knew at the time that possession of the tape outside the X-Division, the lab’s top-secret weapon design area, was unauthorized and violated lab directives. He said he kept the tape and never returned it to the lab.
“How do you plead, guilty or not guilty?” the judge finally asked at 11:58 a.m.
“Guilty,” Lee said firmly, leaning forward into the microphone. A tiny man, he stood a full head shorter than his attorneys and appeared an unlikely subject of such intense attention.
If convicted in court of the same crime, Lee could have been sentenced to 10 years in jail, a $250,000 fine and mandatory three years’ probation.
Except for an interview on CBS-TV’s “60 Minutes” in August 1999, Lee had not spoken publicly before. An anonymous scientist in the secret world of nuclear weapons, Lee exploded into the nation’s headlines in March 1999, when he was identified as the target of an FBI investigation into Chinese espionage. Photos of his arrest, when he was escorted away by burly FBI agents, were shown again and again.
The case created a political firestorm on Capitol Hill, where Republican critics accused the Clinton administration of ignoring nuclear theft to soothe relations with Beijing. In the end, the FBI admitted that it had no evidence that Lee was a spy and he was not charged with espionage.
But he was indicted Dec. 10 for allegedly downloading the files. From the start, the government said that it was most concerned about recovering seven tapes that Lee had created. Lee insisted that they were destroyed but offered no proof.
Under the agreement, Lee agreed to provide a “truthful written declaration, under penalty of perjury, stating the manner in which he disposed of the seven tapes.” The statement was turned over to the government, but was not released.
The chief prosecutor, Assistant U.S. Atty. George Stamboulidis, defended the agreement, since it prevents disclosure of national secrets in open court.
Even if Lee were convicted of all charges at trial, Stamboulidis added, he “might go to prison for a very long time, but we might never learn what happened to those tapes.”
When the judge asked why the government suddenly was willing to accept Lee’s word, after challenging his veracity for months, Stamboulidis replied that Lee would face “a whole world of horribles” through further prosecution if he failed to cooperate.
In Washington, FBI Director Louis J. Freeh defended the bureau’s actions in the Lee case and insisted that the most important result–protecting the nation’s secrets–has been realized.
In a statement, Freeh said that the plea agreement “provides the opportunity to determine what in fact happened to the nuclear design and source codes that Dr. Lee unlawfully and criminally downloaded, copied and removed from Los Alamos.”
Freeh said the data Lee took “represents the fruits of hundreds of billions of dollars of investment by the United States.”
Had they gone to trial, Freeh said, the government was prepared to prove that Lee sought to conceal what he had done, “and to destroy the electronic footprints left by the transfer and downloading process.”
He added: “The government was prepared to prove that, after the existence of the investigation became known, efforts were made by Dr. Lee to delete files that had been manipulated into unclassified systems” and “that there were many attempts–some in the middle of the night–to regain access to the classified systems even after access had been formally revoked by Los Alamos.”
“Determining what happened to the tapes has always been paramount to prosecution,” Freeh added. “The safety of the nation demands that we take this important step.”
Freeh did not mention Judge Parker’s scolding in his statement.
Reno said that she and Freeh “shoulder the awesome responsibility of protecting national security” and added that the terms of the plea will allow investigators to find out what happened to Lee’s tapes. “This is an agreement that is in the best interest of our national security in that it gives us our best chance to find out what happened to the tapes.”
Related Articles
* Clinton Criticizes Justice Dept. Over Wen Ho Lee Case Sep 15, 2000
* Lee’s Detention Ran Counter to U.S. Values, Clinton Says Sep 16, 2000
* Attorney in Los Alamos Case Quits Jan 04, 2000
* Scientist’s Attorneys Want Seized Evidence Suppressed Apr 18, 2000
* Prosecutors Fight Bid by Jailed Scientist May 25, 2000
* Reno, Freeh Insist Wen Ho Lee Posed ‘Great Risk’ to U.S. Sep 27, 2000
By Bob Drogin
September 14, 2000 in print edition A-1
Wen Ho Lee walked out of court a free man Wednesday after a federal judge repeatedly apologized for incarcerating him for nine months without trial and angrily rebuked the Clinton administration for its handling of a case that “embarrassed this entire nation.”
In a morning marked by high drama, laughter and tears of joy, the former Los Alamos nuclear weapon scientist agreed in thickly accented English to a negotiated deal that brings an abrupt end to the highly controversial case.
Lee pleaded guilty to one felony charge of illegally retaining national defense information. He was sentenced to the 278 days he has served since his arrest. The government dismissed all 58 other counts, many of which carried life sentences.
“Next few days, I’m going fishing,” Lee declared with a broad grin on the mobbed courthouse steps after his release. His lawyer Mark Holscher called it “a sweet day indeed.”
In a sworn statement provided as part of the deal, Lee said for the first time that he did not intend to harm the United States when he downloaded classified nuclear weapon data onto an unsecured computer and portable tapes at Los Alamos and that he had not passed the tapes or their contents to anyone.
Lee, 60, also agreed to submit to intense debriefings by government investigators for 10 days over the next three weeks and further questioning if necessary over the next year to satisfy government concerns about why Lee created the tapes and what he did with them. Lee could face further prosecution if he fails to comply.
Norman Bay, U.S. attorney for New Mexico, called the resolution of the high-profile and highly controversial national security case “a favorable disposition for the government and a fair disposition for the defendant.”
But the court hearing was dominated by U.S. District Judge James A. Parker’s stunning summation, an emotion-charged monologue in which he repeatedly apologized to Lee and bitterly condemned government prosecutorial tactics.
Speaking in somber tones to a packed and hushed courtroom, Parker excoriated what he called the “top decision-makers in the executive branch.” He particularly criticized the White House, U.S. Atty. Gen. Janet Reno, Energy Secretary Bill Richardson and the FBI for their roles in bringing the case.
“They have embarrassed this entire nation and each of us who is a citizen of it,” Parker said.
The decision to prosecute Lee, he said, “was made at the highest levels of the executive branch in Washington, D.C.” He cited a meeting of senior Justice and Energy Department officials at the White House on Dec. 4, six days before Lee was indicted.
The executive branch, Parker warned, “has enormous power, the abuse of which can be devastating to our citizens.”
In contrast, Parker effusively praised Lee’s lawyers as “outstanding” and said that they would have provided a “formidable” defense had the case gone to trial.
“You turned a battleship in this case,” the judge told Lee’s lawyers from the bench.
Prosecutors sat stone-faced through much of Parker’s harsh scolding. The FBI’s chief investigator, Robert Messemer, whose recantation last month of his own testimony sharply undermined the prosecution’s case, scowled. Messemer, a beefy man with slicked-back hair, avoided reporters after the hearing.
An FBI source in Washington said that, while Messemer’s conduct in the case will be routinely reviewed, the agency seems to believe that his testimony “wasn’t that inaccurate” and it is doubtful he will be disciplined.
But Parker, who took over as chief federal judge in New Mexico this month, repeatedly said that the government “misled” him by exaggerating evidence against Lee in December when prosecutors insisted that the Taiwan-born scientist should be denied bail and held incommunicado in jail until his trial.
“Dr. Lee, I feel great sadness that I was led astray” during the December bail hearing, Parker said.
Parker, 63, also criticized John J. Kelly, the former U.S. attorney here, who quit in January to run for Congress. Before leaving, Kelly “personally argued vehemently against your release and persuaded me not to release you,” the judge told Lee.
“In hindsight, you should not have been held in custody,” he added.
Until recently, Lee spent his time in virtual solitary confinement in a Santa Fe jail. He was allowed to see his family one hour a week and to exercise alone one hour a day. He was shackled hand and foot even during those periods, however, as well as during his meetings with his lawyers.
Parker complained that the government moved much too slowly, despite his urgings, to ease the conditions of Lee’s confinement.
“Dr. Lee, you were terribly wronged by being held in pretrial custody in demeaning and unnecessarily punitive conditions,” Parker said. “I am truly sorry.”
Parker also questioned why the government ignored an offer by Lee’s lawyers, shortly before his indictment Dec. 10, for Lee to take a polygraph test at Los Alamos to answer questions about the tapes. Had they responded, the judge suggested, the last nine months might have been avoided.
“Nothing came of it, and I am saddened that nothing came of it,” Parker said.
But Parker called it “most perplexing” that the government, which repeatedly fought to keep Lee in jail, “should suddenly agree to release you” without any conditions. “This makes no sense to me.”
Lee’s family and supporters burst into loud applause when Parker dismissed the court–and closed the sensational case–shortly after 1 p.m. here. Many wept, hugged and cheered as they filed out into the blinding New Mexico sunshine.
The plea arrangement was hammered out last weekend after a series of secret sessions but nearly collapsed Monday shortly before the plea was to be filed and Lee was to go home.
In a case marked by agonizing cliffhangers, prosecutors insisted on additional concessions at the last minute, including a demand that Lee submit to government questions for more time than in the original proposed agreement.
The court-appointed mediator, U.S. 9th Circuit Court of Appeals Judge Edward Leavy, rushed to Albuquerque on Tuesday from his home in Portland, Ore., to negotiate a compromise. He met prosecutors and defense lawyers until nearly 3 a.m. Wednesday before the stalled deal was revived.
Lee will pay no fine or restitution under the agreement and is not subject to probation or supervision. He must get approval from the government if he wishes to travel abroad during the next year, but Leavy will mediate any disputes.
Lee arrived at his home in White Rock, a suburb of Los Alamos, at 5:30 p.m. local time to a tumultuous welcome from friends and supporters, as well as a crush of reporters and camera crews crowded around his simple wood-and-brick bungalow.
In a brief statement, Lee thanked his neighbors. “They made me very strong when I was in jail,” he said.
The first sign that Lee was going home came at 7:50 a.m., when defense attorney Holscher strode up the courthouse steps with a broad smile. “It’s a good morning, a very good morning,” he said.
But a 9 a.m. hearing was quickly postponed until 10, and that was pushed back another hour as lawyers drafted final wording of the deal. Lee, who wore a dark gray suit and a blue tie, appeared relaxed as he waved at friends and laughed with his lawyers. His wife, Sylvia, daughter, Alberta, and son, Chung, waited silently in the front row of the courtroom.
Finally, at 11:02, the silver-haired Parker entered the courtroom in his flowing black robes.
“I understand the parties have finally agreed,” he announced.
Lee raised his right hand, fingers splayed far apart, as he was sworn in beside his lawyers. For the next 90 minutes, the judge patiently explained the 10-page plea agreement, stopping every few minutes to ask Lee if he understood and agreed.
Although Lee has lived in the United States since the 1960s and is a naturalized U.S. citizen, he asked the judge to repeat himself several times or turned to his lawyers for a whispered explanation. “Now I understand, yes,” he then would answer.
As a convicted felon, Lee will lose the right to run for office, serve on a jury, possess a gun or vote.
“You’ll be giving up your right to cast a vote about what was done to you,” Parker told Lee. “Do you understand?”
“Yes,” Lee replied softly.
Finally, Lee read aloud his crime: “On a date certain in 1994, I used an unsecured computer in T-Division to download a document or writing relating to the national defense,” he began.
Lee said he knew at the time that possession of the tape outside the X-Division, the lab’s top-secret weapon design area, was unauthorized and violated lab directives. He said he kept the tape and never returned it to the lab.
“How do you plead, guilty or not guilty?” the judge finally asked at 11:58 a.m.
“Guilty,” Lee said firmly, leaning forward into the microphone. A tiny man, he stood a full head shorter than his attorneys and appeared an unlikely subject of such intense attention.
If convicted in court of the same crime, Lee could have been sentenced to 10 years in jail, a $250,000 fine and mandatory three years’ probation.
Except for an interview on CBS-TV’s “60 Minutes” in August 1999, Lee had not spoken publicly before. An anonymous scientist in the secret world of nuclear weapons, Lee exploded into the nation’s headlines in March 1999, when he was identified as the target of an FBI investigation into Chinese espionage. Photos of his arrest, when he was escorted away by burly FBI agents, were shown again and again.
The case created a political firestorm on Capitol Hill, where Republican critics accused the Clinton administration of ignoring nuclear theft to soothe relations with Beijing. In the end, the FBI admitted that it had no evidence that Lee was a spy and he was not charged with espionage.
But he was indicted Dec. 10 for allegedly downloading the files. From the start, the government said that it was most concerned about recovering seven tapes that Lee had created. Lee insisted that they were destroyed but offered no proof.
Under the agreement, Lee agreed to provide a “truthful written declaration, under penalty of perjury, stating the manner in which he disposed of the seven tapes.” The statement was turned over to the government, but was not released.
The chief prosecutor, Assistant U.S. Atty. George Stamboulidis, defended the agreement, since it prevents disclosure of national secrets in open court.
Even if Lee were convicted of all charges at trial, Stamboulidis added, he “might go to prison for a very long time, but we might never learn what happened to those tapes.”
When the judge asked why the government suddenly was willing to accept Lee’s word, after challenging his veracity for months, Stamboulidis replied that Lee would face “a whole world of horribles” through further prosecution if he failed to cooperate.
In Washington, FBI Director Louis J. Freeh defended the bureau’s actions in the Lee case and insisted that the most important result–protecting the nation’s secrets–has been realized.
In a statement, Freeh said that the plea agreement “provides the opportunity to determine what in fact happened to the nuclear design and source codes that Dr. Lee unlawfully and criminally downloaded, copied and removed from Los Alamos.”
Freeh said the data Lee took “represents the fruits of hundreds of billions of dollars of investment by the United States.”
Had they gone to trial, Freeh said, the government was prepared to prove that Lee sought to conceal what he had done, “and to destroy the electronic footprints left by the transfer and downloading process.”
He added: “The government was prepared to prove that, after the existence of the investigation became known, efforts were made by Dr. Lee to delete files that had been manipulated into unclassified systems” and “that there were many attempts–some in the middle of the night–to regain access to the classified systems even after access had been formally revoked by Los Alamos.”
“Determining what happened to the tapes has always been paramount to prosecution,” Freeh added. “The safety of the nation demands that we take this important step.”
Freeh did not mention Judge Parker’s scolding in his statement.
Reno said that she and Freeh “shoulder the awesome responsibility of protecting national security” and added that the terms of the plea will allow investigators to find out what happened to Lee’s tapes. “This is an agreement that is in the best interest of our national security in that it gives us our best chance to find out what happened to the tapes.”
Related Articles
* Clinton Criticizes Justice Dept. Over Wen Ho Lee Case Sep 15, 2000
* Lee’s Detention Ran Counter to U.S. Values, Clinton Says Sep 16, 2000
* Attorney in Los Alamos Case Quits Jan 04, 2000
* Scientist’s Attorneys Want Seized Evidence Suppressed Apr 18, 2000
* Prosecutors Fight Bid by Jailed Scientist May 25, 2000
* Reno, Freeh Insist Wen Ho Lee Posed ‘Great Risk’ to U.S. Sep 27, 2000
Clinton's Remarks
http://www.fas.org/irp/ops/ci/whl_clinton.html
POTUS REMARKS UPON DEPARTURE ON PATIENTS BILL OF RIGHTS
September 14, 2000
[...]
Q Mr. President, could you take a question? I was wondering, Mr. President, if you share the embarrassment that was expressed yesterday by the federal judge in New Mexico about the treatment of Wen Ho Lee during his year of confinement under federal authorities?
THE PRESIDENT: Well, I always had reservations about the claims that were being made denying him bail. And let me say -- I think I speak for everyone in the White House -- we took those claims on good faith by the people in the government that were making them, and a couple days after they made the claim that this man could not possibly be let out of jail on bail because he would be such a danger -- of flight, or such a danger to America's security -- all of a sudden they reach a plea agreement which will, if anything, make his alleged defense look modest compared to the claims that were made against him.
So the whole thing was quite troubling to me, and I think it's very difficult to reconcile the two positions, that one day he's a terrible risk to the national security, and the next day they're making a plea agreement for an offense far more modest than what had been alleged.
Now, I do hope that, as part of that plea agreement, he will help them to reconstitute the missing files, because that's what really important to our national security, and we will find out eventually what, if any, use was made of them by him or anybody else who got a hold of them.
But I think what should be disturbing to the American people -- we ought not to keep people in jail without bail, unless there's some real profound reason. And to keep someone in jail without bail, argue right up to the 11th hour that they're a terrible risk, and then turn around and make that sort of plea agreement -- it may be that the plea agreement is the right and just thing, and I have absolutely no doubt that the people who were investigating and pursuing this case believe they were doing the right thing for the nation's security -- but I don't think that you can justify, in retrospect, keeping a person in jail without bail when you're prepared to make that kind of agreement. It just can't be justified, and I don't believe it can be, and so I, too, am quite troubled by it.
Q -- clemency here? Are you thinking in terms of clemency for him, for Wen Ho Lee?
THE PRESIDENT: Well, I'd have to look at that. It depends on, if he's in fact -- he has said he's going to plead guilty to an offense which is not insubstantial, but it's certainly a bailable offense, and it means he spent a lot of time in prison that any ordinary American wouldn't have, and that bothers me.
[...]
POTUS REMARKS UPON DEPARTURE ON PATIENTS BILL OF RIGHTS
September 14, 2000
[...]
Q Mr. President, could you take a question? I was wondering, Mr. President, if you share the embarrassment that was expressed yesterday by the federal judge in New Mexico about the treatment of Wen Ho Lee during his year of confinement under federal authorities?
THE PRESIDENT: Well, I always had reservations about the claims that were being made denying him bail. And let me say -- I think I speak for everyone in the White House -- we took those claims on good faith by the people in the government that were making them, and a couple days after they made the claim that this man could not possibly be let out of jail on bail because he would be such a danger -- of flight, or such a danger to America's security -- all of a sudden they reach a plea agreement which will, if anything, make his alleged defense look modest compared to the claims that were made against him.
So the whole thing was quite troubling to me, and I think it's very difficult to reconcile the two positions, that one day he's a terrible risk to the national security, and the next day they're making a plea agreement for an offense far more modest than what had been alleged.
Now, I do hope that, as part of that plea agreement, he will help them to reconstitute the missing files, because that's what really important to our national security, and we will find out eventually what, if any, use was made of them by him or anybody else who got a hold of them.
But I think what should be disturbing to the American people -- we ought not to keep people in jail without bail, unless there's some real profound reason. And to keep someone in jail without bail, argue right up to the 11th hour that they're a terrible risk, and then turn around and make that sort of plea agreement -- it may be that the plea agreement is the right and just thing, and I have absolutely no doubt that the people who were investigating and pursuing this case believe they were doing the right thing for the nation's security -- but I don't think that you can justify, in retrospect, keeping a person in jail without bail when you're prepared to make that kind of agreement. It just can't be justified, and I don't believe it can be, and so I, too, am quite troubled by it.
Q -- clemency here? Are you thinking in terms of clemency for him, for Wen Ho Lee?
THE PRESIDENT: Well, I'd have to look at that. It depends on, if he's in fact -- he has said he's going to plead guilty to an offense which is not insubstantial, but it's certainly a bailable offense, and it means he spent a lot of time in prison that any ordinary American wouldn't have, and that bothers me.
[...]
Wednesday, September 13, 2000
Flawed Case against Dr. Lee
http://articles.latimes.com/2000/sep/13/news/mn-20151
How FBI's Flawed Case Against Lee Unraveled
Investigators pursued questionable tactics in their zeal to prosecute a Los Alamos scientist as a spy. Careers are ruined, and still no one knows how China obtained nuclear secrets.
By BOB DROGIN, Times Staff Writer
Key Players in the Lee Case
Wen Ho Lee: Former computer scientist at Los Alamos National Laboratory, indicted for downloading vast library of data on U.S. nuclear weapon design.
Notra Trulock III: Former head of counterintelligence at Energy Department, one of first government officials to identify Lee as a suspect in espionage investigation.
Bill Richardson: U.S. Energy secretary, pushed for Lee's prosecu-tion based on limited evidence, came under criticism in Congress for security lapses at Los Alamos.
Other Players
James A. Parker: U.S. district judge in Albuquerque, called attention to weaknesses in government's case against Lee and reversed earlier decision to deny bail.
Robert Messemer: The FBI's chief investigator in the Lee case, publicly recanted earlier testimony in which he had accused Lee of acting in a deceptive manner.
Robert Vrooman: Former head of counterintelligence at Los Alamos, Energy Department whistle-blower who said Lee was targeted because of his ethnicity.
WASHINGTON--Early last year, Wen Ho Lee walked from his cluttered sixth-floor office at the Los Alamos National Laboratory down to a first-floor conference room. A fellow nuclear weapon scientist and two FBI agents then grilled him until nearly nightfall.
In halting English, the Taiwan-born Lee repeatedly denied--as he had in 19 previous sessions with the FBI--that he ever gave design secrets about America's most sophisticated nuclear warhead to China or anyone else.
"At the end, everyone was convinced he was not a spy," recalled Robert Vrooman, then head of counterintelligence at Los Alamos, who listened to the previously undisclosed meeting from another room. "We all concluded there was no evidence. We figured we'd put this puppy to bed."
But the next day, an FBI agent with the unlikely name of Carol Covert was called into the bureau's Santa Fe, N.M., office and ordered to take a special FBI crash course in "hostile interviews."
A day later, Covert and fellow FBI agent John Podenko sat across from Lee. They said--falsely--that Lee had failed a polygraph test. Then they angrily warned him that, unless he cooperated, he might never see his children again and could be "electrocuted."
Finally, the two agents pulled out a piece of paper and demanded that Lee sign a full confession of espionage--a crime that carries the death penalty--without a lawyer present. Lee had not even retained a lawyer at the time.
"Poor bastard, he didn't understand," said an official who has seen the FBI-drafted confession. "He kept crossing things out and trying to correct it. He was trying to help them. He still didn't get what was happening."
Lee learned soon enough. He was fired from Los Alamos the next day, March 8, 1999, and news accounts branded him the "spy of the century." The shy scientist, an expert in the arcane physics of fluid dynamics and the elegant art of Chinese cooking, soon became ensnared in a legal and political nightmare.
Lee, now 60, has spent the last 277 days in jail, under conditions usually reserved for convicted terrorists or spies. He hopes to go home today if his lawyers and federal prosecutors can agree during a scheduled court hearing in Albuquerque on a proposed plea arrangement. He would plead guilty to one felony charge under the deal, which would bring an embarrassing close to one of the most important national security cases since the Cold War.
Why did the government proceed with what now appears a seriously flawed prosecution? Not all the answers are known. But investigators' zeal to catch a spy, fueled by sensational press reports, near-hysteria by some members of Congress and a U.S. attorney in New Mexico who sought to secure an indictment before he retired to run for Congress created a structure that was shaky from the start--and that quickly began to crumble.
What is clear is that in the wake of the inquiry, morale at the lab is a shambles, careers and lives have been ruined and the government is no closer today than when it started in determining how China obtained secrets on U.S. nuclear weapons.
Case Stems From Warhead Inquiry
The case began in 1996 as "Kindred Spirit," a three-year FBI investigation into China's alleged theft of America's W-88 warhead secrets from Los Alamos. Last year, when no such evidence was found linking Lee or Los Alamos to Chinese espionage, a new inquiry--ironically code-named "Sea Change"--was launched.
The result: Lee was indicted on 59 charges and arrested last Dec. 10 for allegedly transferring top-secret nuclear weapon data to unsecured computers and portable tapes at Los Alamos. Thirty-nine of the charges, all carrying life sentences, alleged that Lee acted with intent to harm the United States and to aid a foreign power. Seven of the tapes could not be located, despite what the FBI said was one of the largest searches in its history. Lee's lawyers claimed that he destroyed the tapes but offered no proof.
Problems quickly arose in the FBI inquiry.
The weapon data were not formally classified when Lee copied them. Even now, the material is classified "secret restricted data," which means under Energy Department regulations that it may be mailed through the U.S. Postal Service. And many senior scientists openly dispute the government's contention that the missing data represent America's "crown jewels."
Nor was the FBI investigation as complete as claimed.
Agents repeatedly argued after Lee's arrest that he should be held incommunicado in jail. One agent ominously warned that Lee might pass a coded message, such as "the fish are biting" or "Uncle Wen says hello," that could endanger national security.
But the FBI's concern was new: It did not wiretap Lee's home telephones during the nine months between the discovery that the scientist had created the tapes and his arrest. Lee made hundreds of unmonitored calls.
FBI tactics also came into question. On Feb. 10, 1999, an FBI polygrapher repeatedly asked Lee about highly classified nuclear weapon designs--and required him to draw detailed diagrams--in an unsecured hotel room in Albuquerque. In theory, Lee broke the law by answering. His drawings are still classified.
Lawyers Describe Lee as Bumbling, Naive
On the other hand, Lee's actions remain a mystery. Why did he devote 40 hours to downloading the equivalent of 400,000 pages of nuclear data from the lab's classified computers? Why did he repeatedly try to enter a classified area after his security clearance was revoked--once at 3:30 a.m. on Christmas Eve?
Lee's lawyers depict him as bumbling and naive, a pack rat who lived in a rarefied world where complex nuclear equations lead to weapons of mass destruction. As for the plea, one lawyer said: "He doesn't know the difference between a misdemeanor and a felony."
If Lee had evil intent, his defenders ask, why did he leave the files in open view on the lab's unclassified system for six years? Why did he call the lab's computer help desk for aid in moving and later deleting the files?
"He's clueless," said Lee's 26-year-old daughter, Alberta. A longtime colleague said that Lee "is an absolute genius. Or a moron. Take your pick. He's a totally focused scientist."
For its part, the FBI said it is satisfied with the proposed plea agreement hammered out last weekend by defense and prosecution lawyers. Barring further delays, Lee is expected to plead guilty today to one charge of unlawful retention of national defense information, a felony. All 58 other charges will be dropped, and no fine, probation or other penalty will be imposed.
Lee, in turn, must agree to debrief the FBI over the next two weeks, take polygraph tests if necessary, and answer questions over the next six months, especially about why he made the tapes and what he did with them. It will be Lee's first meeting with the FBI since agents tried to persuade him to confess to a capital crime.
"It's breathtaking," said Steven Aftergood, a senior analyst at the Federation of American Scientists, a nonprofit group founded by veterans of the original Manhattan Project at Los Alamos. "It's a dramatic reversal. One feels relieved for Wen Ho Lee. But it's disgraceful that a man spent nine months in solitary confinement without being convicted of a crime."
In a statement issued Monday--before an unexplained snag delayed filing of the plea agreement--the FBI said that it had achieved its goal by "securing the full cooperation of Mr. Lee."
The FBI also said the indictment followed "repeated requests" for Lee to explain what he did with the tapes. "None was forthcoming. The indictment followed substantial evidence that the tapes were clandestinely made and removed from Los Alamos, but no evidence or assistance [exists] that resolved the missing tape dilemma."
Actually, Lee's lawyers sent letters to the Justice Department shortly before he was indicted, specifically offering to let him take a polygraph test to answer questions about the tapes. The offer was ignored.
So was Vrooman. In early 1999, he and several colleagues repeatedly testified in closed-door sessions before the House and Senate Intelligence committees and several investigative review boards. Their message: No espionage had occurred and Lee had been unfairly targeted because he is Chinese American.
"I was trying to do it within the system," Vrooman said.
Energy Department Issues Reprimands
But the Energy Department clamped down. On Aug. 12, 1999, after Vrooman had retired from Los Alamos, Energy Secretary Bill Richardson issued reprimands to Vrooman and two colleagues at the lab for allegedly failing to assist the FBI in its pursuit of Chinese espionage.
Vrooman was barred from being a consultant for the department for five years. Another counterintelligence official at the lab, who also was disciplined, quit.
Angry at what he viewed as a cover-up, Vrooman went public. His complaints about racial profiling and what he called a complete lack of evidence against Lee were the first indications that the case was seriously amiss.
But Notra Trulock III, then director of counterintelligence at the Energy Department, continued to insist that a Chinese spy had looted Los Alamos and that Lee was the only suspect. Trulock was a self-described "knuckle-dragger," a hard-charging ideologue with little patience for those who did not agree with him.
Trulock found powerful allies in Congress, where Republican leaders urged members to use the Lee case to excoriate the Clinton administration for lax security in the face of wholesale nuclear theft. Heated hearings and lurid reports dominated news reports for weeks.
But many colleagues who knew Trulock best had little respect for his views.
One of them, Charles E. Washington, who worked for Trulock as acting director of counterintelligence and is now a senior policy analyst at the Energy Department, said in a sworn affidavit filed on Lee's behalf that Trulock "acts vindictively and opportunistically, that he improperly uses security issues to punish and discredit others and that he has racist views toward minority groups."
In a telephone interview, Washington said that he once was forced to call outside police to the Energy Department headquarters "due to Mr. Trulock's abusive behavior" during an argument. "He spat on me," he said.
Washington, who is black, filed a federal discrimination lawsuit as a result. The Energy Department settled the case last year, giving Washington a pay raise, a cash award, restoration of leave and other incentives.
Trulock could not be reached for comment. He quit the Energy Department last year after complaining that the Clinton administration was trying to whitewash Chinese espionage. Ironically, the FBI is now investigating Trulock for attempting to sell an article on the Lee case that allegedly contained classified information.
Key Witness Turns Into Weakest Link
Other careers also have been severely tarnished.
Notable among them: Robert Messemer, the FBI's chief investigator in the Lee case and a specialist in Chinese counterintelligence. Known to colleagues as "Stealth" for his crafty ways, Messemer was intended to be the key government witness against Lee.
Instead, he became the prosecution's weakest link.
During a mid-August bail hearing for Lee, Messemer admitted from the stand that his previous testimony was wrong when he said repeatedly that Lee had lied and sought to hide his actions when he copied the weapon files and created the tapes.
One of Lee's colleagues had told the FBI that Lee had asked for password access to his computer to download some files or data. Messemer interviewed the scientist, Kuok-Mee Ling, at least six times and reviewed transcripts of his other statements. Messemer nonetheless had testified falsely to two judges on three occasions that Lee had lied to Ling by saying that he wanted to download a "resume."
Messemer also acknowledged that, despite his testimony last December and despite a prosecution document filed with the court in June, the FBI had no evidence to show that Lee had applied for jobs at six academic or nuclear institutes overseas. Prosecutors had argued that Lee might have created the tapes to enhance his job prospects.
U.S. District Judge James A. Parker cited Messemer's claims when he denied Lee bail in December.
Messemer's public humiliation was a bombshell. It not only left the government with no hard evidence of a motive for Lee's action, it now had a crucial witness with a severe credibility problem--and a federal judge openly skeptical of prosecution claims.
"You should not have 'oops' in your vocabulary if you're a government witness in an important case or a brain surgeon," said John L. Martin, who prosecuted and won every government espionage case for 26 years until he retired from the Justice Department in 1997.
"One of the biggest problems I had was keeping the shenanigans and skulduggery that go on in investigations from reaching the courtroom," Martin added. "That's the problem here. And the case suffered as a result."
Case Is Called a 'Great Civics Lesson'
Martin called the Lee case a "great civics lesson," especially for the FBI and the Energy Department. With reports of ineptitude and over-reaching, both were badly scarred in the push for prosecution.
"Now they realize that, in order to take one of these cases, they've got to back up in court what they say publicly," Martin said. "They painted this as a devastating case. They alleged terrible things before they indicted him. Then they couldn't back up those sensational allegations."
Among those who had pushed hardest behind the scenes for prosecution of Lee was John J. Kelly, then U.S. attorney in New Mexico, and his Democratic mentor, Energy Secretary Richardson, a former member of Congress from New Mexico. Kelly quit his post to run for Congress three weeks after Lee was indicted.
Kelly defended his actions this week from the courthouse steps in Albuquerque. "I thought it was a good indictment then, and I think events have shown that Dr. Lee has taken material that he should not have," he told reporters. "The government is going to learn in the next week or so where the tapes are. I think that's good."
Richardson had a cautious response. "The issue here is, are we getting the tapes back," he said Monday at a news conference at the Oak Ridge National Laboratory in Tennessee. "I think that is the key. The plea bargain enables us to get that information."
Lee's lawyer Mark Holscher and the chief prosecutor, Assistant U.S. Atty. George Stamboulidis, met to discuss a settlement on Aug. 25, a day after Judge Parker had agreed to let Lee go home on $1-million bond. After hearing Messemer admit inaccurate testimony and defense experts challenge the significance of the missing tapes, Parker ruled that the evidence against Lee no longer had the "requisite clarity" to justify continued incarceration.
Government Gets Hit Again and Again
"What the government described in December 1999 as the 'crown jewels' of the United States nuclear weapons program no longer is so clearly deserving of that label," the judge added. It was a stunning blow to the prosecution.
Parker then walloped the government again.
He unexpectedly ordered federal prosecutors to give him thousands of pages of internal documents from the FBI, CIA, Energy Department, Justice Department and other government agencies by this Friday. Defense lawyers had argued that the documents would show Lee was unfairly targeted for prosecution because he is ethnic Chinese.
"I think they didn't want that scrutiny," one of Lee's lawyers said. The proposed plea arrangement specifically ends that demand for documents.
Some Feared Secrets Would Air in Court
Senior Energy Department officials had another worry: that Parker would order the government to let Lee's lawyers reveal nuclear secrets and other classified information in court as they defended their client.
Other than the FBI statement, few government officials were willing to be quoted amid the debris of the Lee case this week.
An Energy Department spokesman insisted that no one, including himself, was allowed to speak on the record or even to be identified as working for the department. A Justice Department spokesman insisted on similar restrictions.
At Los Alamos, the nation's premier nuclear weapon facility, the news that Lee might go home was greeted with relief by what one official called the "nuclear priesthood."
Collateral damage from the Lee case, after more than a year of public criticism, has devastated the lab: Morale and production have plummeted, recruitment has dropped and attrition of senior scientists and engineers has surged.
Relations with the FBI, which must work with the lab to investigate espionage and nuclear terrorism, have almost ground to a halt.
"I hope that resolving this will allow better public recognition of the major contributions the laboratory makes to scientific progress and national security, instead of continued focus on the misdeeds of a single ex-employee," said John C. Brown, the lab director. He called the last 18 months "probably . . . the most difficult period in Los Alamos history."
There is a final casualty in the Lee case: Carol Covert, the FBI agent who gave Lee the "hostile interview" and demanded that he confess to spying.
The FBI this week refused to let a reporter talk to Covert, but Vrooman, a close friend, said she was so upset after conducting the interview that she took three months' sick leave and transferred out of the Santa Fe office.
"She was distraught," Vrooman said. "She didn't believe Lee was guilty."
How FBI's Flawed Case Against Lee Unraveled
Investigators pursued questionable tactics in their zeal to prosecute a Los Alamos scientist as a spy. Careers are ruined, and still no one knows how China obtained nuclear secrets.
By BOB DROGIN, Times Staff Writer
Key Players in the Lee Case
Wen Ho Lee: Former computer scientist at Los Alamos National Laboratory, indicted for downloading vast library of data on U.S. nuclear weapon design.
Notra Trulock III: Former head of counterintelligence at Energy Department, one of first government officials to identify Lee as a suspect in espionage investigation.
Bill Richardson: U.S. Energy secretary, pushed for Lee's prosecu-tion based on limited evidence, came under criticism in Congress for security lapses at Los Alamos.
Other Players
James A. Parker: U.S. district judge in Albuquerque, called attention to weaknesses in government's case against Lee and reversed earlier decision to deny bail.
Robert Messemer: The FBI's chief investigator in the Lee case, publicly recanted earlier testimony in which he had accused Lee of acting in a deceptive manner.
Robert Vrooman: Former head of counterintelligence at Los Alamos, Energy Department whistle-blower who said Lee was targeted because of his ethnicity.
WASHINGTON--Early last year, Wen Ho Lee walked from his cluttered sixth-floor office at the Los Alamos National Laboratory down to a first-floor conference room. A fellow nuclear weapon scientist and two FBI agents then grilled him until nearly nightfall.
In halting English, the Taiwan-born Lee repeatedly denied--as he had in 19 previous sessions with the FBI--that he ever gave design secrets about America's most sophisticated nuclear warhead to China or anyone else.
"At the end, everyone was convinced he was not a spy," recalled Robert Vrooman, then head of counterintelligence at Los Alamos, who listened to the previously undisclosed meeting from another room. "We all concluded there was no evidence. We figured we'd put this puppy to bed."
But the next day, an FBI agent with the unlikely name of Carol Covert was called into the bureau's Santa Fe, N.M., office and ordered to take a special FBI crash course in "hostile interviews."
A day later, Covert and fellow FBI agent John Podenko sat across from Lee. They said--falsely--that Lee had failed a polygraph test. Then they angrily warned him that, unless he cooperated, he might never see his children again and could be "electrocuted."
Finally, the two agents pulled out a piece of paper and demanded that Lee sign a full confession of espionage--a crime that carries the death penalty--without a lawyer present. Lee had not even retained a lawyer at the time.
"Poor bastard, he didn't understand," said an official who has seen the FBI-drafted confession. "He kept crossing things out and trying to correct it. He was trying to help them. He still didn't get what was happening."
Lee learned soon enough. He was fired from Los Alamos the next day, March 8, 1999, and news accounts branded him the "spy of the century." The shy scientist, an expert in the arcane physics of fluid dynamics and the elegant art of Chinese cooking, soon became ensnared in a legal and political nightmare.
Lee, now 60, has spent the last 277 days in jail, under conditions usually reserved for convicted terrorists or spies. He hopes to go home today if his lawyers and federal prosecutors can agree during a scheduled court hearing in Albuquerque on a proposed plea arrangement. He would plead guilty to one felony charge under the deal, which would bring an embarrassing close to one of the most important national security cases since the Cold War.
Why did the government proceed with what now appears a seriously flawed prosecution? Not all the answers are known. But investigators' zeal to catch a spy, fueled by sensational press reports, near-hysteria by some members of Congress and a U.S. attorney in New Mexico who sought to secure an indictment before he retired to run for Congress created a structure that was shaky from the start--and that quickly began to crumble.
What is clear is that in the wake of the inquiry, morale at the lab is a shambles, careers and lives have been ruined and the government is no closer today than when it started in determining how China obtained secrets on U.S. nuclear weapons.
Case Stems From Warhead Inquiry
The case began in 1996 as "Kindred Spirit," a three-year FBI investigation into China's alleged theft of America's W-88 warhead secrets from Los Alamos. Last year, when no such evidence was found linking Lee or Los Alamos to Chinese espionage, a new inquiry--ironically code-named "Sea Change"--was launched.
The result: Lee was indicted on 59 charges and arrested last Dec. 10 for allegedly transferring top-secret nuclear weapon data to unsecured computers and portable tapes at Los Alamos. Thirty-nine of the charges, all carrying life sentences, alleged that Lee acted with intent to harm the United States and to aid a foreign power. Seven of the tapes could not be located, despite what the FBI said was one of the largest searches in its history. Lee's lawyers claimed that he destroyed the tapes but offered no proof.
Problems quickly arose in the FBI inquiry.
The weapon data were not formally classified when Lee copied them. Even now, the material is classified "secret restricted data," which means under Energy Department regulations that it may be mailed through the U.S. Postal Service. And many senior scientists openly dispute the government's contention that the missing data represent America's "crown jewels."
Nor was the FBI investigation as complete as claimed.
Agents repeatedly argued after Lee's arrest that he should be held incommunicado in jail. One agent ominously warned that Lee might pass a coded message, such as "the fish are biting" or "Uncle Wen says hello," that could endanger national security.
But the FBI's concern was new: It did not wiretap Lee's home telephones during the nine months between the discovery that the scientist had created the tapes and his arrest. Lee made hundreds of unmonitored calls.
FBI tactics also came into question. On Feb. 10, 1999, an FBI polygrapher repeatedly asked Lee about highly classified nuclear weapon designs--and required him to draw detailed diagrams--in an unsecured hotel room in Albuquerque. In theory, Lee broke the law by answering. His drawings are still classified.
Lawyers Describe Lee as Bumbling, Naive
On the other hand, Lee's actions remain a mystery. Why did he devote 40 hours to downloading the equivalent of 400,000 pages of nuclear data from the lab's classified computers? Why did he repeatedly try to enter a classified area after his security clearance was revoked--once at 3:30 a.m. on Christmas Eve?
Lee's lawyers depict him as bumbling and naive, a pack rat who lived in a rarefied world where complex nuclear equations lead to weapons of mass destruction. As for the plea, one lawyer said: "He doesn't know the difference between a misdemeanor and a felony."
If Lee had evil intent, his defenders ask, why did he leave the files in open view on the lab's unclassified system for six years? Why did he call the lab's computer help desk for aid in moving and later deleting the files?
"He's clueless," said Lee's 26-year-old daughter, Alberta. A longtime colleague said that Lee "is an absolute genius. Or a moron. Take your pick. He's a totally focused scientist."
For its part, the FBI said it is satisfied with the proposed plea agreement hammered out last weekend by defense and prosecution lawyers. Barring further delays, Lee is expected to plead guilty today to one charge of unlawful retention of national defense information, a felony. All 58 other charges will be dropped, and no fine, probation or other penalty will be imposed.
Lee, in turn, must agree to debrief the FBI over the next two weeks, take polygraph tests if necessary, and answer questions over the next six months, especially about why he made the tapes and what he did with them. It will be Lee's first meeting with the FBI since agents tried to persuade him to confess to a capital crime.
"It's breathtaking," said Steven Aftergood, a senior analyst at the Federation of American Scientists, a nonprofit group founded by veterans of the original Manhattan Project at Los Alamos. "It's a dramatic reversal. One feels relieved for Wen Ho Lee. But it's disgraceful that a man spent nine months in solitary confinement without being convicted of a crime."
In a statement issued Monday--before an unexplained snag delayed filing of the plea agreement--the FBI said that it had achieved its goal by "securing the full cooperation of Mr. Lee."
The FBI also said the indictment followed "repeated requests" for Lee to explain what he did with the tapes. "None was forthcoming. The indictment followed substantial evidence that the tapes were clandestinely made and removed from Los Alamos, but no evidence or assistance [exists] that resolved the missing tape dilemma."
Actually, Lee's lawyers sent letters to the Justice Department shortly before he was indicted, specifically offering to let him take a polygraph test to answer questions about the tapes. The offer was ignored.
So was Vrooman. In early 1999, he and several colleagues repeatedly testified in closed-door sessions before the House and Senate Intelligence committees and several investigative review boards. Their message: No espionage had occurred and Lee had been unfairly targeted because he is Chinese American.
"I was trying to do it within the system," Vrooman said.
Energy Department Issues Reprimands
But the Energy Department clamped down. On Aug. 12, 1999, after Vrooman had retired from Los Alamos, Energy Secretary Bill Richardson issued reprimands to Vrooman and two colleagues at the lab for allegedly failing to assist the FBI in its pursuit of Chinese espionage.
Vrooman was barred from being a consultant for the department for five years. Another counterintelligence official at the lab, who also was disciplined, quit.
Angry at what he viewed as a cover-up, Vrooman went public. His complaints about racial profiling and what he called a complete lack of evidence against Lee were the first indications that the case was seriously amiss.
But Notra Trulock III, then director of counterintelligence at the Energy Department, continued to insist that a Chinese spy had looted Los Alamos and that Lee was the only suspect. Trulock was a self-described "knuckle-dragger," a hard-charging ideologue with little patience for those who did not agree with him.
Trulock found powerful allies in Congress, where Republican leaders urged members to use the Lee case to excoriate the Clinton administration for lax security in the face of wholesale nuclear theft. Heated hearings and lurid reports dominated news reports for weeks.
But many colleagues who knew Trulock best had little respect for his views.
One of them, Charles E. Washington, who worked for Trulock as acting director of counterintelligence and is now a senior policy analyst at the Energy Department, said in a sworn affidavit filed on Lee's behalf that Trulock "acts vindictively and opportunistically, that he improperly uses security issues to punish and discredit others and that he has racist views toward minority groups."
In a telephone interview, Washington said that he once was forced to call outside police to the Energy Department headquarters "due to Mr. Trulock's abusive behavior" during an argument. "He spat on me," he said.
Washington, who is black, filed a federal discrimination lawsuit as a result. The Energy Department settled the case last year, giving Washington a pay raise, a cash award, restoration of leave and other incentives.
Trulock could not be reached for comment. He quit the Energy Department last year after complaining that the Clinton administration was trying to whitewash Chinese espionage. Ironically, the FBI is now investigating Trulock for attempting to sell an article on the Lee case that allegedly contained classified information.
Key Witness Turns Into Weakest Link
Other careers also have been severely tarnished.
Notable among them: Robert Messemer, the FBI's chief investigator in the Lee case and a specialist in Chinese counterintelligence. Known to colleagues as "Stealth" for his crafty ways, Messemer was intended to be the key government witness against Lee.
Instead, he became the prosecution's weakest link.
During a mid-August bail hearing for Lee, Messemer admitted from the stand that his previous testimony was wrong when he said repeatedly that Lee had lied and sought to hide his actions when he copied the weapon files and created the tapes.
One of Lee's colleagues had told the FBI that Lee had asked for password access to his computer to download some files or data. Messemer interviewed the scientist, Kuok-Mee Ling, at least six times and reviewed transcripts of his other statements. Messemer nonetheless had testified falsely to two judges on three occasions that Lee had lied to Ling by saying that he wanted to download a "resume."
Messemer also acknowledged that, despite his testimony last December and despite a prosecution document filed with the court in June, the FBI had no evidence to show that Lee had applied for jobs at six academic or nuclear institutes overseas. Prosecutors had argued that Lee might have created the tapes to enhance his job prospects.
U.S. District Judge James A. Parker cited Messemer's claims when he denied Lee bail in December.
Messemer's public humiliation was a bombshell. It not only left the government with no hard evidence of a motive for Lee's action, it now had a crucial witness with a severe credibility problem--and a federal judge openly skeptical of prosecution claims.
"You should not have 'oops' in your vocabulary if you're a government witness in an important case or a brain surgeon," said John L. Martin, who prosecuted and won every government espionage case for 26 years until he retired from the Justice Department in 1997.
"One of the biggest problems I had was keeping the shenanigans and skulduggery that go on in investigations from reaching the courtroom," Martin added. "That's the problem here. And the case suffered as a result."
Case Is Called a 'Great Civics Lesson'
Martin called the Lee case a "great civics lesson," especially for the FBI and the Energy Department. With reports of ineptitude and over-reaching, both were badly scarred in the push for prosecution.
"Now they realize that, in order to take one of these cases, they've got to back up in court what they say publicly," Martin said. "They painted this as a devastating case. They alleged terrible things before they indicted him. Then they couldn't back up those sensational allegations."
Among those who had pushed hardest behind the scenes for prosecution of Lee was John J. Kelly, then U.S. attorney in New Mexico, and his Democratic mentor, Energy Secretary Richardson, a former member of Congress from New Mexico. Kelly quit his post to run for Congress three weeks after Lee was indicted.
Kelly defended his actions this week from the courthouse steps in Albuquerque. "I thought it was a good indictment then, and I think events have shown that Dr. Lee has taken material that he should not have," he told reporters. "The government is going to learn in the next week or so where the tapes are. I think that's good."
Richardson had a cautious response. "The issue here is, are we getting the tapes back," he said Monday at a news conference at the Oak Ridge National Laboratory in Tennessee. "I think that is the key. The plea bargain enables us to get that information."
Lee's lawyer Mark Holscher and the chief prosecutor, Assistant U.S. Atty. George Stamboulidis, met to discuss a settlement on Aug. 25, a day after Judge Parker had agreed to let Lee go home on $1-million bond. After hearing Messemer admit inaccurate testimony and defense experts challenge the significance of the missing tapes, Parker ruled that the evidence against Lee no longer had the "requisite clarity" to justify continued incarceration.
Government Gets Hit Again and Again
"What the government described in December 1999 as the 'crown jewels' of the United States nuclear weapons program no longer is so clearly deserving of that label," the judge added. It was a stunning blow to the prosecution.
Parker then walloped the government again.
He unexpectedly ordered federal prosecutors to give him thousands of pages of internal documents from the FBI, CIA, Energy Department, Justice Department and other government agencies by this Friday. Defense lawyers had argued that the documents would show Lee was unfairly targeted for prosecution because he is ethnic Chinese.
"I think they didn't want that scrutiny," one of Lee's lawyers said. The proposed plea arrangement specifically ends that demand for documents.
Some Feared Secrets Would Air in Court
Senior Energy Department officials had another worry: that Parker would order the government to let Lee's lawyers reveal nuclear secrets and other classified information in court as they defended their client.
Other than the FBI statement, few government officials were willing to be quoted amid the debris of the Lee case this week.
An Energy Department spokesman insisted that no one, including himself, was allowed to speak on the record or even to be identified as working for the department. A Justice Department spokesman insisted on similar restrictions.
At Los Alamos, the nation's premier nuclear weapon facility, the news that Lee might go home was greeted with relief by what one official called the "nuclear priesthood."
Collateral damage from the Lee case, after more than a year of public criticism, has devastated the lab: Morale and production have plummeted, recruitment has dropped and attrition of senior scientists and engineers has surged.
Relations with the FBI, which must work with the lab to investigate espionage and nuclear terrorism, have almost ground to a halt.
"I hope that resolving this will allow better public recognition of the major contributions the laboratory makes to scientific progress and national security, instead of continued focus on the misdeeds of a single ex-employee," said John C. Brown, the lab director. He called the last 18 months "probably . . . the most difficult period in Los Alamos history."
There is a final casualty in the Lee case: Carol Covert, the FBI agent who gave Lee the "hostile interview" and demanded that he confess to spying.
The FBI this week refused to let a reporter talk to Covert, but Vrooman, a close friend, said she was so upset after conducting the interview that she took three months' sick leave and transferred out of the Santa Fe office.
"She was distraught," Vrooman said. "She didn't believe Lee was guilty."
Judge Parker's Apology
Full Text of Remarks of Judge James A. Parker, U.S. District Court, New Mexico at Wen Ho Lee's plea hearing.
Dr. Lee, you have pled guilty to a serious crime. It's a felony offense. For that, you deserved to be punished. In my opinion, you have been punished harshly, both by the severe conditions of pretrial confinement and by the fact that you have lost valuable rights as a citizen.
Under the laws of our country, a person charged in federal court with commission of a crime normally is entitled to be released from jail until that person is tried and convicted. Congress expressed in the Bail Reform Act its distinct preference for pretrial release from jail and prescribed that release on conditions be denied to a person charged with a crime only in exceptional circumstances.
The Executive Branch of the United States Government has until today actually, or just recently, vigorously opposed your release from jail, even under what I had previously described as Draconian conditions of release. During December 1999, the then-United States Attorney, who has since resigned, and his Assistants presented me, during the three-day hearing between Christmas and New Year's Day, with information that was so extreme it convinced me that releasing you, even under the most stringent of conditions, would be a danger to the safety of this nation.
The then-United States Attorney personally argued vehemently against your release and ultimately persuaded me not to release you. In my opinion and order that was entered Dec. 30, 1999, I stated the following: "With a great deal of concern about the conditions under which Dr. Lee is presently being held in custody, which is in solitary confinement all but one hour of the week, when he is permitted to visited his family, the Court finds, based on the record before it, that the government has shown by clear and convincing evidence that there is no combination of conditions of release that would reasonably assure the safety of any other person and the community or the nation."
After stating that in the opinion, I made this request in the opinion right at the end: "Although the Court concludes that Dr. Lee must remain in custody, the Court urges the government attorneys to explore ways to lessen the severe restrictions currently imposed upon Dr. Lee while preserving the security of sensitive information."
I was very disappointed that my request was not promptly heeded by the government attorneys.
After December, your lawyers developed information that was not available to you or them during December. And I ordered the Executive Branch of the government to provide additional information that I reviewed, a lot of which you and your attorneys have not seen.
With more complete, balanced information before me, I felt the picture had changed significantly from that painted by the government during the December hearing. Hence, after the August hearing, I ordered your release despite the continued argument by the Executive Branch, through its government attorneys, that your release still presented an unacceptable extreme danger.
I find it most perplexing, although appropriate, that the Executive Branch today has suddenly agreed to your release without any significant conditions or restrictions whatsoever on your activities. I note that this has occurred shortly before the Executive Branch was to have produced, for my review in camera, a large volume of information that I previously ordered it to produce.
From the beginning, the focus of this case was on your motive or intent in taking the information from the secure computers and eventually downloading it on to tapes. There was never really any dispute about your having done that, only about why you did it.
What I believe remains unanswered is the question: What was the government's motive in insisting on your being jailed pretrial under extraordinarily onerous conditions of confinement until today, when the Executive Branch agrees that you may be set free essentially unrestricted? This makes no sense to me.
A corollary question I guess is: Why were you charged with the many Atomic Energy Act counts for which the penalty is life imprisonment, all of which the Executive Branch has now moved to dismiss and which I just dismissed?
During the proceedings in this case, I was told two things: first, the decision to prosecute you was made at the highest levels of the Executive Branch of the United States government in Washington, D.C.
With respect to that, I quote from a transcript of the August 15, 2000, hearing, where I asked this question. This was asked of Dr. Lee's lawyers. "Who do you contend made the decision to prosecute?" Mr. (Mark) Holscher responded, "We know that the decision was made at the highest levels in Washington. We know that there was a meeting at the White House the Saturday before the indictment, which was attended by the heads of a number of agencies. I believe the number two and number three persons in the Department of Justice were present. I don't know if the Attorney General herself was present. "It was actually held at the White House rather than the Department of Justice, which is, in our view, unusual circumstances for a meeting." That statement by Mr. Holscher was not challenged.
The second thing that I was told was that the decision to prosecute you on the 39 Atomic Energy Act, each of which had life imprisonment as a penalty, was made personally by the President's Attorney General. In that respect, I will quote one of the Assistant U.S. Attorneys, a very fine attorney in this case -- this was also at the August 15 hearing. This is talking about materials that I ordered to be produced in connection with Dr. Lee's motion relating to selective prosecution.
The first category of materials involved the January 2000 report by the Department of Energy Task Force on racial profiling. "How would that in any way disclose prosecutorial strategy?" Miss (Laura) Fashing responded, "That I think falls more into the category of being burdensome on the government. I mean if the government -- if we step back for just a second -- I mean the prosecution decision and the investigation in this case, the investigation was conducted by the FBI, referred to the United States Attorney's Office, and then the United States Attorney's Office, in conjunction with -- well, actually the Attorney General, Janet Reno, made the ultimate decision on the Atomic Energy Act counts."
Dr. Lee, you're a citizen of the United States and so am I, but there is a difference between us. You had to study the Constitution of the United States to become a citizen. Most of us are citizens by reason of the simple serendipitous fact of our birth here. So what I am now about to explain to you, you probably already know from having studied it, but I will explain it anyway.
Under the Constitution of the United States, there are three branches of government. There is the Executive Branch, of which the President of the United States is the head. Next to him is the Vice-president of the United States. The President operates the Executive Branch with his cabinet, which is composed of secretaries or heads of the different departments of the Executive Branch. The Vice-president participates in cabinet meetings.
In this prosecution, the more important members of the President's cabinet were the Attorney General and the Secretary of the Department of Energy, both of whom were appointed to their positions by the President. The Attorney General is the head of the United States Department of Justice, which despite its title, is a part of the Executive Branch, not a part of the Judicial Branch of our government. The United States Marshal Service, which was charged with overseeing your pretrial detention, also is a part of the Executive Branch, not the Judicial Branch. The Executive Branch has enormous power, the abuse of which can be devastating to our citizens.
The second branch of our national government is the Legislative Branch, our Congress. Congress promulgated the laws under which you were prosecuted, the criminal statutes. And it also promulgated the Bail Reform Act, under which in hindsight you should not have been held in custody.
The Judicial Branch of government, of which I am a member, is called the Third Branch of government because it's described in Article III of our Constitution. Judges must interpret the laws and must preside over criminal prosecutions brought by the Executive Branch.
Since I am not a member of the Executive Branch, I cannot speak on behalf of the President of the United States, the Vice-president of the United States, their Attorney General, their Secretary of the Department of Energy or their former United States Attorney in this District, who vigorously insisted that you had to be kept in jail under extreme restrictions because your release pretrial would pose a grave threat to our nation's security.
I want everyone to know that I agree, based on the information that so far has been made available to me, that you, Dr. Lee, faced some risk of conviction by a jury if you were to have proceeded to trial. Because of that, I decided to accept the agreement you made with the United States Executive Branch under Rule 11(e) (1) (C) of the Federal Rules of Criminal Procedure.
Further, I feel that the 278 days of confinement for your offense is not unjust; however, I believe you were terribly wronged by being held in custody pretrial in the Santa Fe County Detention Center under demeaning, unnecessarily punitive conditions.
I am truly sorry that I was led by our Executive Branch of government to order your detention last December. Dr. Lee, I tell you with great sadness that I feel I was led astray last December by the Executive Branch of our government through its Department of Justice, by its Federal Bureau of Investigation and by its United States Attorney for the District of New Mexico, who held the office at that time.
I am sad for you and your family because of the way in which you were kept in custody while you were presumed under the law to be innocent of the charges the Executive Branch brought against you.
I am sad that I was induced in December to order your detention, since by the terms of the plea agreement that frees you today without conditions, it becomes clear that the Executive Branch now concedes, or should concede, that it was not necessary to confine you last December or at any time before your trial.
I am sad because the resolution of this case drug on unnecessarily long. Before the Executive Branch obtained your indictment on the 59 charges last December, your attorney, Mr. Holscher, made a written offer to the Office of the United States Attorney to have you explain the missing tapes under polygraph examination.
I'll read from that letter of December 10, 1999. I quote from that letter: "Dear United States Attorney Kelly and First Assistant Gorence, "I write to accept Mr. Kelly's request that we provide them with additional credible and verifiable information which will prove that Dr. Lee is innocent.
"On the afternoon of Wednesday, December 8th, Mr. Kelly informed me that it was very likely that Dr. Lee will be indicted within the next three to four business days. In our phone conversation, Mr. Kelly told me that the only way that we could prevent this indictment would be to provide a credible and verifiable explanation of what he described as missing tapes.
"We will immediately provide this credible and verifiable explanation. Specifically we are prepared to make Dr. Lee immediately available to a mutually agreeable polygraph examiner to verify our repeated written representations that at no time did he mishandle those tapes in question and to confirm that he did not provide the tapes to any third party.
"As a sign of our good faith, we will agree to submit Dr. Lee to the type of polygraph examination procedure that has recently been instituted at the Los Alamos Laboratory to question scientists. It is our understanding that the government has reaffirmed that this new polygraph procedure is the best and most accurate way to verify that scientists are properly handling classified information."
At the inception of the December hearing, I asked the parties to pursue that offer made by Mr. Holscher on behalf of Dr. Lee, but that was to no avail.
MR. (George) STAMBOULIDIS, (assistant U.S. attorney): Your Honor, most respectfully I take issue with that. There has been a full record of letters that were sent back and forth to you, and Mr. Holscher withdrew that offer.
THE COURT: Nothing came of it, and I was saddened by the fact that nothing came of it. I did read the letters that were sent and exchanged. I think I commented one time that I think both sides prepared their letters primarily for use by the media and not by me. Notwithstanding that, I thought my request was not taken seriously into consideration.
Let me turn for the moment to something else. Although I have indicated that I am sorry that I was led by the Executive Branch to order your detention last December, I want to make a clarification here.
In fairness, I must note that virtually all of the lawyers who work for the Department of Justice are honest, honorable, dedicated people, who exemplify the best of those who represent our federal government.
Your attorney, Mr. Holscher, formerly was an Assistant United States Attorney. The new United States Attorney for the District of New Mexico, Mr. Norman Bay, and the many Assistant United States Attorneys here in New Mexico -- and I include in this Mr. Stamboulidis and Mr. Liebman, who are present here today -- have toiled long hours on this case in opposition to you. They are all outstanding members of the Bar, and I have the highest regard for all of them.
It is only the top decision makers in the Executive Branch, especially the Department of Justice and the Department of Energy and locally, during December, who have caused embarrassment by the way this case began and was handled. They did not embarrass me alone. They have embarrassed our entire nation and each of us who is a citizen of it.
I might say that I am also sad and troubled because I do not know the real reasons why the Executive Branch has done all of this. We will not learn why because the plea agreement shields the Executive Branch from disclosing a lot of information that it was under order to produce that might have supplied the answer.
Although, as I indicated, I have no authority to speak on behalf of the Executive Branch, the President, the Vice-president, the Attorney General, or the Secretary of the Department of Energy, as a member of the Third Branch of the United States Government, the Judiciary, the United States Courts, I sincerely apologize to you, Dr. Lee, for the unfair manner you were held in custody by the Executive Branch.
Court will be in recess.
Dr. Lee, you have pled guilty to a serious crime. It's a felony offense. For that, you deserved to be punished. In my opinion, you have been punished harshly, both by the severe conditions of pretrial confinement and by the fact that you have lost valuable rights as a citizen.
Under the laws of our country, a person charged in federal court with commission of a crime normally is entitled to be released from jail until that person is tried and convicted. Congress expressed in the Bail Reform Act its distinct preference for pretrial release from jail and prescribed that release on conditions be denied to a person charged with a crime only in exceptional circumstances.
The Executive Branch of the United States Government has until today actually, or just recently, vigorously opposed your release from jail, even under what I had previously described as Draconian conditions of release. During December 1999, the then-United States Attorney, who has since resigned, and his Assistants presented me, during the three-day hearing between Christmas and New Year's Day, with information that was so extreme it convinced me that releasing you, even under the most stringent of conditions, would be a danger to the safety of this nation.
The then-United States Attorney personally argued vehemently against your release and ultimately persuaded me not to release you. In my opinion and order that was entered Dec. 30, 1999, I stated the following: "With a great deal of concern about the conditions under which Dr. Lee is presently being held in custody, which is in solitary confinement all but one hour of the week, when he is permitted to visited his family, the Court finds, based on the record before it, that the government has shown by clear and convincing evidence that there is no combination of conditions of release that would reasonably assure the safety of any other person and the community or the nation."
After stating that in the opinion, I made this request in the opinion right at the end: "Although the Court concludes that Dr. Lee must remain in custody, the Court urges the government attorneys to explore ways to lessen the severe restrictions currently imposed upon Dr. Lee while preserving the security of sensitive information."
I was very disappointed that my request was not promptly heeded by the government attorneys.
After December, your lawyers developed information that was not available to you or them during December. And I ordered the Executive Branch of the government to provide additional information that I reviewed, a lot of which you and your attorneys have not seen.
With more complete, balanced information before me, I felt the picture had changed significantly from that painted by the government during the December hearing. Hence, after the August hearing, I ordered your release despite the continued argument by the Executive Branch, through its government attorneys, that your release still presented an unacceptable extreme danger.
I find it most perplexing, although appropriate, that the Executive Branch today has suddenly agreed to your release without any significant conditions or restrictions whatsoever on your activities. I note that this has occurred shortly before the Executive Branch was to have produced, for my review in camera, a large volume of information that I previously ordered it to produce.
From the beginning, the focus of this case was on your motive or intent in taking the information from the secure computers and eventually downloading it on to tapes. There was never really any dispute about your having done that, only about why you did it.
What I believe remains unanswered is the question: What was the government's motive in insisting on your being jailed pretrial under extraordinarily onerous conditions of confinement until today, when the Executive Branch agrees that you may be set free essentially unrestricted? This makes no sense to me.
A corollary question I guess is: Why were you charged with the many Atomic Energy Act counts for which the penalty is life imprisonment, all of which the Executive Branch has now moved to dismiss and which I just dismissed?
During the proceedings in this case, I was told two things: first, the decision to prosecute you was made at the highest levels of the Executive Branch of the United States government in Washington, D.C.
With respect to that, I quote from a transcript of the August 15, 2000, hearing, where I asked this question. This was asked of Dr. Lee's lawyers. "Who do you contend made the decision to prosecute?" Mr. (Mark) Holscher responded, "We know that the decision was made at the highest levels in Washington. We know that there was a meeting at the White House the Saturday before the indictment, which was attended by the heads of a number of agencies. I believe the number two and number three persons in the Department of Justice were present. I don't know if the Attorney General herself was present. "It was actually held at the White House rather than the Department of Justice, which is, in our view, unusual circumstances for a meeting." That statement by Mr. Holscher was not challenged.
The second thing that I was told was that the decision to prosecute you on the 39 Atomic Energy Act, each of which had life imprisonment as a penalty, was made personally by the President's Attorney General. In that respect, I will quote one of the Assistant U.S. Attorneys, a very fine attorney in this case -- this was also at the August 15 hearing. This is talking about materials that I ordered to be produced in connection with Dr. Lee's motion relating to selective prosecution.
The first category of materials involved the January 2000 report by the Department of Energy Task Force on racial profiling. "How would that in any way disclose prosecutorial strategy?" Miss (Laura) Fashing responded, "That I think falls more into the category of being burdensome on the government. I mean if the government -- if we step back for just a second -- I mean the prosecution decision and the investigation in this case, the investigation was conducted by the FBI, referred to the United States Attorney's Office, and then the United States Attorney's Office, in conjunction with -- well, actually the Attorney General, Janet Reno, made the ultimate decision on the Atomic Energy Act counts."
Dr. Lee, you're a citizen of the United States and so am I, but there is a difference between us. You had to study the Constitution of the United States to become a citizen. Most of us are citizens by reason of the simple serendipitous fact of our birth here. So what I am now about to explain to you, you probably already know from having studied it, but I will explain it anyway.
Under the Constitution of the United States, there are three branches of government. There is the Executive Branch, of which the President of the United States is the head. Next to him is the Vice-president of the United States. The President operates the Executive Branch with his cabinet, which is composed of secretaries or heads of the different departments of the Executive Branch. The Vice-president participates in cabinet meetings.
In this prosecution, the more important members of the President's cabinet were the Attorney General and the Secretary of the Department of Energy, both of whom were appointed to their positions by the President. The Attorney General is the head of the United States Department of Justice, which despite its title, is a part of the Executive Branch, not a part of the Judicial Branch of our government. The United States Marshal Service, which was charged with overseeing your pretrial detention, also is a part of the Executive Branch, not the Judicial Branch. The Executive Branch has enormous power, the abuse of which can be devastating to our citizens.
The second branch of our national government is the Legislative Branch, our Congress. Congress promulgated the laws under which you were prosecuted, the criminal statutes. And it also promulgated the Bail Reform Act, under which in hindsight you should not have been held in custody.
The Judicial Branch of government, of which I am a member, is called the Third Branch of government because it's described in Article III of our Constitution. Judges must interpret the laws and must preside over criminal prosecutions brought by the Executive Branch.
Since I am not a member of the Executive Branch, I cannot speak on behalf of the President of the United States, the Vice-president of the United States, their Attorney General, their Secretary of the Department of Energy or their former United States Attorney in this District, who vigorously insisted that you had to be kept in jail under extreme restrictions because your release pretrial would pose a grave threat to our nation's security.
I want everyone to know that I agree, based on the information that so far has been made available to me, that you, Dr. Lee, faced some risk of conviction by a jury if you were to have proceeded to trial. Because of that, I decided to accept the agreement you made with the United States Executive Branch under Rule 11(e) (1) (C) of the Federal Rules of Criminal Procedure.
Further, I feel that the 278 days of confinement for your offense is not unjust; however, I believe you were terribly wronged by being held in custody pretrial in the Santa Fe County Detention Center under demeaning, unnecessarily punitive conditions.
I am truly sorry that I was led by our Executive Branch of government to order your detention last December. Dr. Lee, I tell you with great sadness that I feel I was led astray last December by the Executive Branch of our government through its Department of Justice, by its Federal Bureau of Investigation and by its United States Attorney for the District of New Mexico, who held the office at that time.
I am sad for you and your family because of the way in which you were kept in custody while you were presumed under the law to be innocent of the charges the Executive Branch brought against you.
I am sad that I was induced in December to order your detention, since by the terms of the plea agreement that frees you today without conditions, it becomes clear that the Executive Branch now concedes, or should concede, that it was not necessary to confine you last December or at any time before your trial.
I am sad because the resolution of this case drug on unnecessarily long. Before the Executive Branch obtained your indictment on the 59 charges last December, your attorney, Mr. Holscher, made a written offer to the Office of the United States Attorney to have you explain the missing tapes under polygraph examination.
I'll read from that letter of December 10, 1999. I quote from that letter: "Dear United States Attorney Kelly and First Assistant Gorence, "I write to accept Mr. Kelly's request that we provide them with additional credible and verifiable information which will prove that Dr. Lee is innocent.
"On the afternoon of Wednesday, December 8th, Mr. Kelly informed me that it was very likely that Dr. Lee will be indicted within the next three to four business days. In our phone conversation, Mr. Kelly told me that the only way that we could prevent this indictment would be to provide a credible and verifiable explanation of what he described as missing tapes.
"We will immediately provide this credible and verifiable explanation. Specifically we are prepared to make Dr. Lee immediately available to a mutually agreeable polygraph examiner to verify our repeated written representations that at no time did he mishandle those tapes in question and to confirm that he did not provide the tapes to any third party.
"As a sign of our good faith, we will agree to submit Dr. Lee to the type of polygraph examination procedure that has recently been instituted at the Los Alamos Laboratory to question scientists. It is our understanding that the government has reaffirmed that this new polygraph procedure is the best and most accurate way to verify that scientists are properly handling classified information."
At the inception of the December hearing, I asked the parties to pursue that offer made by Mr. Holscher on behalf of Dr. Lee, but that was to no avail.
MR. (George) STAMBOULIDIS, (assistant U.S. attorney): Your Honor, most respectfully I take issue with that. There has been a full record of letters that were sent back and forth to you, and Mr. Holscher withdrew that offer.
THE COURT: Nothing came of it, and I was saddened by the fact that nothing came of it. I did read the letters that were sent and exchanged. I think I commented one time that I think both sides prepared their letters primarily for use by the media and not by me. Notwithstanding that, I thought my request was not taken seriously into consideration.
Let me turn for the moment to something else. Although I have indicated that I am sorry that I was led by the Executive Branch to order your detention last December, I want to make a clarification here.
In fairness, I must note that virtually all of the lawyers who work for the Department of Justice are honest, honorable, dedicated people, who exemplify the best of those who represent our federal government.
Your attorney, Mr. Holscher, formerly was an Assistant United States Attorney. The new United States Attorney for the District of New Mexico, Mr. Norman Bay, and the many Assistant United States Attorneys here in New Mexico -- and I include in this Mr. Stamboulidis and Mr. Liebman, who are present here today -- have toiled long hours on this case in opposition to you. They are all outstanding members of the Bar, and I have the highest regard for all of them.
It is only the top decision makers in the Executive Branch, especially the Department of Justice and the Department of Energy and locally, during December, who have caused embarrassment by the way this case began and was handled. They did not embarrass me alone. They have embarrassed our entire nation and each of us who is a citizen of it.
I might say that I am also sad and troubled because I do not know the real reasons why the Executive Branch has done all of this. We will not learn why because the plea agreement shields the Executive Branch from disclosing a lot of information that it was under order to produce that might have supplied the answer.
Although, as I indicated, I have no authority to speak on behalf of the Executive Branch, the President, the Vice-president, the Attorney General, or the Secretary of the Department of Energy, as a member of the Third Branch of the United States Government, the Judiciary, the United States Courts, I sincerely apologize to you, Dr. Lee, for the unfair manner you were held in custody by the Executive Branch.
Court will be in recess.
Friday, September 1, 2000
Science Academies Decry Lee’s Treatment
http://articles.latimes.com/2000/sep/01/news/mn-13821
By Bob Drogin
September 01, 2000 in print edition A-1
In an apparently unprecedented move, the nation’s three most prestigious scientific academies Thursday publicly protested the government’s incarceration of Los Alamos nuclear scientist Wen Ho Lee, complaining that Lee “appears to be a victim of unjust treatment” and that his case “reflects poorly on the U.S. justice system.”
The criticism was aired in an open letter to U.S. Atty. Gen. Janet Reno and was signed by the presidents of the National Academy of Sciences, the National Academy of Engineering and the Institute of Medicine.
The complaint marks the first known case in which the three congressionally chartered academies have intervened on behalf of an American scientist, officials said. Over the last 25 years, the three institutions have written hundreds of letters and appeals to the former Soviet Union, China, Iran and other authoritarian governments to protest mistreatment of scientists who were unjustly detained or imprisoned.
In Lee’s case, the presidents of the academies wrote, their concerns and questions “are identical to those that our Committee on Human Rights regularly poses to foreign governments.”
The American Civil Liberties Union, Asian American groups and other scientific organizations have voiced similar complaints since Lee was jailed under unusually harsh conditions in December for allegedly copying a vast trove of nuclear weapon secrets from the Los Alamos National Laboratory in New Mexico.
But the prominence and credibility of the national academies raise the criticism to a new level. The 4,800 members of the three institutions are elected by their peers and are mandated by Congress to provide independent advice to the federal government on issues of science and technology.
In their letter, the presidents of the academies do not claim that Lee is innocent. But they argue “inaccurate and detrimental testimony by government officials resulted in Dr. Lee needlessly spending eight months in prison under harsh and questionable conditions of confinement.”
“We also urge that those responsible for any injustice that he has suffered be held accountable,” they added. “Even more importantly, perhaps, we urge that safeguards be put in place to ensure that, in future, others do not suffer the same plight.”
The two-page letter was signed by Bruce Alberts, president of the National Academy of Sciences, William Wulf, president of the National Academy of Engineering, and Kenneth I. Shine, president of the Institute of Medicine.
‘An Outrageous Situation’
“I wouldn’t want our letter in any way to diminish the seriousness of what Dr. Lee apparently did,” Wulf said in a telephone interview from Washington. “But that doesn’t justify treating him the way they’ve treated him … this is a small step to rectify what we consider an outrageous situation.”
Carole Florman, a spokeswoman for the Justice Department in Washington, said the letter had just been received and she would not comment on it.
Lee, 60, may be released on $1-million property bond under a strict form of house arrest as early as today. More than a dozen FBI agents searched Lee’s family home and cars Thursday in White Rock, a Los Alamos suburb, starting at 9 a.m. and lasting throughout the day, in anticipation of his release. Police blocked the street to keep reporters away.
Lee’s lawyers separately removed a fax machine, wireless phones and other communication equipment, as required by the judge. Once released, Lee will be banned from leaving his house and backyard garden, and from speaking to anyone except his lawyers, his wife and two grown children, and two neighbors who will act as court-appointed custodians. Lee also will wear an electronic bracelet to monitor his movements.
But John Cline, one of Lee’s lawyers, said he expects federal prosecutors to seek a delay today to give the government time to appeal Lee’s release to the U.S. 10th Circuit Court of Appeals in Denver. The U.S. attorney’s office in Albuquerque did not return repeated calls for comment.
U.S. District Judge James A. Parker ruled Aug. 24 that he would grant bail to Lee. At a hearing Tuesday, Parker said he gave the government until noon today to appeal. But Parker only released his order in classified form late Thursday, meaning it can’t be made public until the government declassifies it. That raised doubts that Lee would go home today as expected.
“We need time to look at the judge’s order to seek a stay, if we decide that’s the appropriate thing to do,” said Florman, the Justice Department spokeswoman.
The latest development comes amid growing indications that the government case against Lee is unraveling.
On Tuesday, Parker ordered prosecutors to produce thousands of pages of internal government documents to help him determine if Lee was improperly singled out for prosecution because he was born in Taiwan. Lee became a U.S. citizen before he joined the nuclear weapon design division at Los Alamos 20 years ago.
Parker will examine the documents, due Sept. 15, before deciding whether to give them to Lee’s lawyers. But the ruling was the first indication that Parker has found grounds to consider defense claims that Lee was unfairly targeted for prosecution due to his ethnicity and not on the evidence then available.
Some of the current government evidence is also now in question. During a hearing in mid-August, the FBI lead investigator, Robert Messemer, recanted several crucial parts of his earlier testimony against Lee. Parker had cited Messemer’s claims when he initially denied bail to Lee in December.
Lee was fired from Los Alamos for security violations in March 1999 after he was publicly identified as the sole target of a three-year investigation into alleged Chinese espionage. The FBI has since said it has no evidence that Lee was a spy.
But Lee was indicted and arrested in December on 59 felony counts after the FBI alleged that he had copied decades’ worth of nuclear weapon design data onto an unsecured computer network at Los Alamos and onto portable computer tapes in 1993, 1994 and 1997.
Despite a worldwide search, the FBI has not located seven of those tapes. Lee’s lawyers insist he destroyed them but have not said when or how. The significance of the seven tapes is now a matter of sharp dispute.
Government witnesses have warned that the tapes contain nuclear secrets so sensitive that they could change the global strategic balance. But in the mid-August hearing, weapon experts called by the defense ridiculed that claim and insisted that 99% of the data already is public.
Although Lee was not charged with espionage, he was jailed under conditions usually reserved for convicted spies and terrorists. Until recently, he was kept in his cell 23 hours a day, and his hands and feet were shackled even during exercise periods. FBI agents monitored Lee’s once-a-week visits from his wife and children.
Newly released unclassified transcripts of closed-door hearings before Judge Parker during Lee’s bail hearing in December show that Messemer, the FBI agent, warned that if Lee still had the 6-year-old tapes, he might give them to a foreign agent “to take revenge against the United States for removing his liberty.”
‘The Fish Are Not Biting Today’
Messemer also warned that if Lee were released, he might be “snatched and taken out of the country” by a foreign intelligence service. He said Lee might say something seemingly innocuous that actually could be a sinister coded message. “For example, what if he were to say to someone, his brother in California, the fish are not biting today?” Messemer said.
In the letter issued Thursday, the presidents of the three academies said they wrote to Reno privately three times earlier this year to question Lee’s treatment. But they complained they were only sent a single “form letter” in reply, signed by the acting chief of internal security, that did not provide a “satisfactory response.”
Florman, however, said that Reno “gets thousands of pieces of mail a week, and she cannot respond to all of them. We try to be very responsive.”
By Bob Drogin
September 01, 2000 in print edition A-1
In an apparently unprecedented move, the nation’s three most prestigious scientific academies Thursday publicly protested the government’s incarceration of Los Alamos nuclear scientist Wen Ho Lee, complaining that Lee “appears to be a victim of unjust treatment” and that his case “reflects poorly on the U.S. justice system.”
The criticism was aired in an open letter to U.S. Atty. Gen. Janet Reno and was signed by the presidents of the National Academy of Sciences, the National Academy of Engineering and the Institute of Medicine.
The complaint marks the first known case in which the three congressionally chartered academies have intervened on behalf of an American scientist, officials said. Over the last 25 years, the three institutions have written hundreds of letters and appeals to the former Soviet Union, China, Iran and other authoritarian governments to protest mistreatment of scientists who were unjustly detained or imprisoned.
In Lee’s case, the presidents of the academies wrote, their concerns and questions “are identical to those that our Committee on Human Rights regularly poses to foreign governments.”
The American Civil Liberties Union, Asian American groups and other scientific organizations have voiced similar complaints since Lee was jailed under unusually harsh conditions in December for allegedly copying a vast trove of nuclear weapon secrets from the Los Alamos National Laboratory in New Mexico.
But the prominence and credibility of the national academies raise the criticism to a new level. The 4,800 members of the three institutions are elected by their peers and are mandated by Congress to provide independent advice to the federal government on issues of science and technology.
In their letter, the presidents of the academies do not claim that Lee is innocent. But they argue “inaccurate and detrimental testimony by government officials resulted in Dr. Lee needlessly spending eight months in prison under harsh and questionable conditions of confinement.”
“We also urge that those responsible for any injustice that he has suffered be held accountable,” they added. “Even more importantly, perhaps, we urge that safeguards be put in place to ensure that, in future, others do not suffer the same plight.”
The two-page letter was signed by Bruce Alberts, president of the National Academy of Sciences, William Wulf, president of the National Academy of Engineering, and Kenneth I. Shine, president of the Institute of Medicine.
‘An Outrageous Situation’
“I wouldn’t want our letter in any way to diminish the seriousness of what Dr. Lee apparently did,” Wulf said in a telephone interview from Washington. “But that doesn’t justify treating him the way they’ve treated him … this is a small step to rectify what we consider an outrageous situation.”
Carole Florman, a spokeswoman for the Justice Department in Washington, said the letter had just been received and she would not comment on it.
Lee, 60, may be released on $1-million property bond under a strict form of house arrest as early as today. More than a dozen FBI agents searched Lee’s family home and cars Thursday in White Rock, a Los Alamos suburb, starting at 9 a.m. and lasting throughout the day, in anticipation of his release. Police blocked the street to keep reporters away.
Lee’s lawyers separately removed a fax machine, wireless phones and other communication equipment, as required by the judge. Once released, Lee will be banned from leaving his house and backyard garden, and from speaking to anyone except his lawyers, his wife and two grown children, and two neighbors who will act as court-appointed custodians. Lee also will wear an electronic bracelet to monitor his movements.
But John Cline, one of Lee’s lawyers, said he expects federal prosecutors to seek a delay today to give the government time to appeal Lee’s release to the U.S. 10th Circuit Court of Appeals in Denver. The U.S. attorney’s office in Albuquerque did not return repeated calls for comment.
U.S. District Judge James A. Parker ruled Aug. 24 that he would grant bail to Lee. At a hearing Tuesday, Parker said he gave the government until noon today to appeal. But Parker only released his order in classified form late Thursday, meaning it can’t be made public until the government declassifies it. That raised doubts that Lee would go home today as expected.
“We need time to look at the judge’s order to seek a stay, if we decide that’s the appropriate thing to do,” said Florman, the Justice Department spokeswoman.
The latest development comes amid growing indications that the government case against Lee is unraveling.
On Tuesday, Parker ordered prosecutors to produce thousands of pages of internal government documents to help him determine if Lee was improperly singled out for prosecution because he was born in Taiwan. Lee became a U.S. citizen before he joined the nuclear weapon design division at Los Alamos 20 years ago.
Parker will examine the documents, due Sept. 15, before deciding whether to give them to Lee’s lawyers. But the ruling was the first indication that Parker has found grounds to consider defense claims that Lee was unfairly targeted for prosecution due to his ethnicity and not on the evidence then available.
Some of the current government evidence is also now in question. During a hearing in mid-August, the FBI lead investigator, Robert Messemer, recanted several crucial parts of his earlier testimony against Lee. Parker had cited Messemer’s claims when he initially denied bail to Lee in December.
Lee was fired from Los Alamos for security violations in March 1999 after he was publicly identified as the sole target of a three-year investigation into alleged Chinese espionage. The FBI has since said it has no evidence that Lee was a spy.
But Lee was indicted and arrested in December on 59 felony counts after the FBI alleged that he had copied decades’ worth of nuclear weapon design data onto an unsecured computer network at Los Alamos and onto portable computer tapes in 1993, 1994 and 1997.
Despite a worldwide search, the FBI has not located seven of those tapes. Lee’s lawyers insist he destroyed them but have not said when or how. The significance of the seven tapes is now a matter of sharp dispute.
Government witnesses have warned that the tapes contain nuclear secrets so sensitive that they could change the global strategic balance. But in the mid-August hearing, weapon experts called by the defense ridiculed that claim and insisted that 99% of the data already is public.
Although Lee was not charged with espionage, he was jailed under conditions usually reserved for convicted spies and terrorists. Until recently, he was kept in his cell 23 hours a day, and his hands and feet were shackled even during exercise periods. FBI agents monitored Lee’s once-a-week visits from his wife and children.
Newly released unclassified transcripts of closed-door hearings before Judge Parker during Lee’s bail hearing in December show that Messemer, the FBI agent, warned that if Lee still had the 6-year-old tapes, he might give them to a foreign agent “to take revenge against the United States for removing his liberty.”
‘The Fish Are Not Biting Today’
Messemer also warned that if Lee were released, he might be “snatched and taken out of the country” by a foreign intelligence service. He said Lee might say something seemingly innocuous that actually could be a sinister coded message. “For example, what if he were to say to someone, his brother in California, the fish are not biting today?” Messemer said.
In the letter issued Thursday, the presidents of the three academies said they wrote to Reno privately three times earlier this year to question Lee’s treatment. But they complained they were only sent a single “form letter” in reply, signed by the acting chief of internal security, that did not provide a “satisfactory response.”
Florman, however, said that Reno “gets thousands of pieces of mail a week, and she cannot respond to all of them. We try to be very responsive.”
Subscribe to:
Posts (Atom)