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
Showing posts with label judge's apology. Show all posts
Showing posts with label judge's apology. Show all posts
Thursday, September 14, 2000
Wednesday, September 13, 2000
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.
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