Revisiting Judge Parker’s Apology to Dr. Wen Ho Lee
Chinese translation: Kathy Liu
On September 13, 2000, Judge James Parker [1] sentenced Dr. Wen Ho Lee to time served for one count of downloading restricted data and offered a formal apology to Dr. Lee [2, 3]:
“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.”
By any standard, such an apology by a sitting judge is extraordinary, especially when the defendant just agreed to a guilty plea to one felony count. What did the executive branch do to deserve the judge’s admonition?
In addition, does the apology still have meaning and relevance to Chinese Americans today?
This article tries to answer the first question by revisiting the judge’s full statement. We shall further examine in upcoming articles the role of government in the Wen Ho Lee case, how it relates to the history of the government’s profiling Chinese Americans, as well as today’s environment after the FBI Director’s recent remarks targeting students, scholars and scientists of Chinese origin [4, 5].
Judge Parker’s Basis of Apology
Judge Parker began his statement by citing that Dr. Lee pleaded guilty to one of 59 counts for downloading restricted data [6]. The judge sentenced Dr. Lee to 278 days, one day less than the time Dr. Lee had served in solitary confinement. Dr. Lee walked out of the courtroom as a free man on the day of the judge’s decision.
Judge Parker opined that Dr. Lee had already been punished harshly for two reasons.
1. Severe conditions of pretrial confinement
On March 6, 1999, The New York Times published an article titled “BREACH AT LOS ALAMOS: A Special Report.; China Stole Nuclear Secrets for Bombs, U.S. Aides Say” [7]. The article identified the suspect as an unnamed Chinese American scientist working in the national laboratory.
Three days later, Dr. Wen Ho Lee, a naturalized U.S. citizen born in Taiwan, was publicly named as the prime suspect and fired from his job as a nuclear scientist from the Los Alamos National Laboratory [8]. For the next nine months, xenophobic frenzies swirled among politicians and the media while the FBI rushed to build a case around Dr. Lee as the only suspect. The Cox Report [9] was released to further fan the flame.
On December 10, 1999, Dr. Lee was arrested and charged for 59 counts of mishandling classified information. Thirty nine (39) of these counts under the Atomic Energy Act each carried a penalty of life imprisonment. The prosecutors presented information to Judge Parker that was so extreme that releasing Dr. Lee on bail, even under the most stringent of conditions, would be a danger to the national security of the United States.
Dr. Lee was denied bail and remained in solitary confinement 24 hours a day under armed guards. He was allowed one hour a day for exercise and was shackled with leg and hand irons whenever he was moved from one location to another. He was allowed to speak only with his attorneys and immediate family members, who could make non-contact visits one hour per week.
Judge Parker explored ways to “lessen the severe restrictions currently imposed upon Dr. Lee while preserving the security of sensitive information,” but it was not heeded by the executive branch of the government. Based on new testimonies in August 2000, Judge Parker ordered Dr. Lee to be released to house arrest, but it was blocked by the U.S. Court of Appeals upon appeal by the executive branch [10].
At the end, Judge Parker found it nonsensical that the executive branch would insist on the “extraordinary onerous conditions of confinement” and the most severe penalty of multiple life sentences and then agreed to set Dr. Lee free unrestricted with the plea agreement. The judge questioned the motive of the executive branch, but it has remained unanswered.
2. Loss of valuable rights as a citizen
In describing the respective functions of the three branches of the U.S. government, Judge Parker noted that “[t]he executive branch has enormous power, the abuse of which can be devastating to our citizens.”
He went on to excoriate the executive branch for its misconduct and misrepresentations to his court in the strongest terms, “(the top decision makers in the executive branch) did not embarrass me alone. They have embarrassed our entire nation and each of us who is a citizen of it.”
The decision to prosecute Dr. Lee, as well as the harsh treatment and penalties, were made personally by the Attorney General Janet Reno and the highest levels of the executive branch of the U.S. government. Dr. Lee was the only person the Department of Justice had selected for indictment under the Atomic Energy Act since it was passed in 1948.
In June 2000, Dr. Lee’s attorneys motioned for discovery of materials alleging selective prosecution by the government [11]. The evidence of racial profiling cited in the motion included videotaped statements, sworn declarations and affidavits, and employee postings that showed targeting of Dr. Lee because he was “ethnic Chinese” and “overseas ethnic Chinese.” Videotaped statements of the FBI Deputy Director responsible for all criminal counterintelligence prosecutions allegedly showed that “the FBI’s criminal investigation of Dr. Lee was premised on the same impermissible racial bias, namely that ‘Chinese-Americans’ were more likely to commit espionage.”
Among the first category of materials Judge Parker ordered for review of the motion was the “January 2000 report by the Department of Energy task force on racial profiling.” The prosecution balked on the grounds that it would “disclose prosecutorial strategy.” This report has since been erased by the executive branch of the government as if it never existed.
What is this January 2000 task force report that the judge deemed so important?
After Dr. Lee was fired but before he was indicted, the Department of Energy (DOE) assembled a task force against racial profiling headed by the Deputy Secretary of Energy in the summer of 1999. The task force included 19 members composed of senior federal and contractor officials, and a U.S. Civil Rights Commissioner.
The task force was chartered to provide
- Accurate observations and assessments of workplaces within the national DOE complex, and
- Recommendations to ensure that policies against racial profiling are carried out effectively
Fact-finding visits were made to the DOE laboratories and facilities, including the Los Alamos National Laboratory, between June and November of 1999. A stated objective of the visits was to “gather relevant information to assist in developing recommendations to eliminate and prevent racial profiling at DOE.” The task force used a systematic and orderly process to derive its observations.
Asian American leaders were invited to participate and observe the visits at the invitation of the Secretary of Energy. As the leader of the National Asian Pacific American Community Leaders group, I observed a spirit of genuine concerns and a common desire by the task force to identify and resolve problems at DOE.
The DOE task force produced a 64-page report in January 2000. As stated in the executive summary, the report was neither an indictment nor an absolution; it was an honest workplace assessment.
Although the report has been purged by the executive branch of the government, a copy is preserved by the Federation of American Scientists [12]. Readers may judge on their own how relevant the report would “disclose prosecutorial strategy” in the denial of bail for Dr. Lee after almost 20 years.
To be continued
After Judge Parker’s decision and statement, Attorney General Reno said she was not embarrassed and refused to apologize for the government’s handling of the Wen Ho Lee case. On the other hand, President Clinton said, "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." [13, 14]
A month after Judge Parker issued his apology and concluded the trial of Dr. Wen Ho Lee, Rep. Patsy Mink (D-HI), former Chair of the Congressional Asian Pacific American Caucus, took the House floor and expressed her concerns about the investigation and treatment of Dr. Lee by both the Congress and the executive branch [15].
James Aubrey Parker is now a Senior United States District Judge of the United States District Court for the District of New Mexico [16]. He celebrated his thirtieth anniversary on the bench in 2017.
We shall examine what Rep. Mink proposed in 2000 and what Judge Parker recalls about the case today in the next article.
Disclaimer
The views and opinions expressed in this article are mine and mine only. They do not reflect the official position or policy of any organization or any agency of the U.S. government.
References
[1] KOAT-7 Action News (2017). Judge’s career began with phone call from President Ronald Reagan. http://bit.ly/2F85aXp.
[2] New York Times (2000). Statement by Judge in Los Alamos Case, With Apology for Abuse of Power. http://nyti.ms/2EVARmQ.
[3] MIT (1999). Transcript of Proceedings, September 13, 2000, United States of America vs Wen Ho Lee. http://bit.ly/1lbIeZx.
[4] C-SPAN (2018). Senate Intelligence Committee Hearing on Global Threats and National Security. http://cs.pn/2ERs6Ki.
[5] Wu, Jeremy (2018). A Letter to the FBI Director: You Made a Grave Mistake. http://bit.ly/WrayMistake.
[6] Federation of American Scientists (1999). Indictment: United States of America vs Wen Ho Lee. http://bit.ly/2oaHrw3.
[7] New York Times (1999). BREACH AT LOS ALAMOS: A Special Report.; China Stole Nuclear Secrets for Bombs, U.S. Aides Say. http://nyti.ms/1NxYPQk.
[8] New York Times (1999). U.S. Fires Scientist Suspected Of Giving China Bomb Data. http://nyti.ms/1KD6CYA.
[9] U.S. House of Representative Select Committee (1999). U.S. National Security and Military/Commercial Concerns with The People’s Republic of China. http://bit.ly/2EFgfM0.
[10] ABC News (2000). Court Blocks Wen Ho Lee Release. http://abcn.ws/2Gxxb7M.
[11] Federation of American Scientists (2000). Motion for Discovery of Materials Related to Selective Prosecution, United States of America vs Wen Ho Lee. http://bit.ly/2BNqKhM.
[12] Federation of American Scientists (2000). Department of Energy Final Report: Task Force against Racial Profiling. http://bit.ly/DOEProfilingReport.
[13] ABC News (2000). Clinton 'Troubled' by Wen Ho Lee Case. http://abcn.ws/2oN7auS.
[14] CNN (2000). President Clinton calls Lee case 'troubling'. http://cnn.it/2D4OTxa.
[15] C-SPAN (2000). Representative Patsy Mink on the Investigation and Treatment of Dr. Wen Ho Lee. http://cs.pn/2cUTk5p.
[16] U.S. District Court (n.d.). District of New Mexico: The Honorable James A. Parker. http://bit.ly/2CjuCYQ.