Statement of Judge In Los Alamos Case
With Apology for Abuse of Power
The New York Times - September 14, 2000
Following is a transcript of a statement by Judge James A. Parker of
Federal District Court in Albuquerque today to Dr. Wen Ho Lee, who
pleaded guilty to mishandling nuclear secrets, as recorded by the court
clerk. At one point the federal prosecutor in the case, George
Stamboulidis, defended his dealings with the defense lawyer Mark
JUDGE PARKER: 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
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,
under what I had previously described as Draconian conditions of
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
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
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
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
"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
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
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
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
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
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
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
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
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
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
"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
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
JUDGE PARKER: 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
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
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.
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