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 Holscher:

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 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

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.

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 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.