In which the honorable James A. Parker explains why he ordered the incarceration of Mr. Lee, and who it was that was so interested in prosecuting him.

Source: United States v. Wen Ho Lee (NO. 99-1417-JC), Transcript of Court Proceedings, September 13, 2000.

THE HONORABLE JAMES A. PARKER, United States District Chief Judge:

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 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 December 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 visit 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. 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. Attorney's, a very fine attorney in this case -- this was also at the August 15th 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 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."

continued in part 2

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