October 6, 2000

 

President William Jefferson Clinton

The White House

Washington, D.C. 20500

 

Dear President Clinton:

 

I write to urge you to issue an apology on behalf of the executive branch of our government to Dr. Wen Ho Lee, as presiding federal Judge James A. Parker of the Albuquerque district “sincerely” and eloquently did on behalf of the judiciary branch September 13 when he set him free, and to unconditionally grant him full pardon for the felony conviction he was compelled to accept under conditions of extreme duress as soon as he completed his debriefing with the U.S. Attorney in Albuquerque, NM.  This request has become more urgent in light of the post-release statements made by Attorney General Janet Reno and FBI director Louis Freeh.  Their joint statement issued before the joint hearing of the Senate Judiciary and Intelligence Committees is virtually identical with the original indictment handed down last December and a clear signal that they do not accept Judge Parker's decision and statement when he freed Dr. Wen Ho Lee.  In effect, they are going to re-try Dr. Lee, not in the court of law, but in the court of public opinion.  This to me is most alarming and outrageous!

 

My reasons for seeking a presidential apology and pardon for him are very straightforward and they are based on my review of available documents and reports to date.  First, from the very beginning, the case against Dr. Lee should not have been brought to begin with.  From the start, it was tainted with racial prejudice and brought, not on the basis of legal merit and sound principles of law enforcement,  but under immense political pressure from a handful of influential figures in the U.S. Congress and from the nation’s premiere newspaper, The New York Times, that falsely accused Dr. Lee of spying for and stealing our nuclear secrets for China.  (On September 26, the paper half-heartedly apologized for its inadequate and sometimes sensational coverage of the Wen Ho Lee case).  As a result of groundless allegations and a hysterical coverage in the paper, Dr. Lee was arbitrarily fired March 8, 1999 from his job at the Los Alamos National Laboratory (LANL), in violation of the lab’s personnel policies and procedures. 

 

Since his dismissal, his life has been turned into a living hell.  As you well know, in spite of  extensive and intensive investigation, no less than five years in duration and with full cooperation of Dr. Lee without the presence of his attorney for months leading to his dismissal, the allegations against Dr. Lee turned out to be a case based solely of racial profiling and discrimination:  not a shred of evidence was unearthed and in the end, he could not even be charged with and arrested for espionage.   The logical and right thing for the government to do at that point should have been:  to regard the groundless allegations against him as a case of paranoia based on racial profiling or false alarm and to clear him then and there. 

 

Instead, the government compounded its first mistake by engaging in a single-minded, vindictive pursuit of his indictment, with or without basis, leaving behind a trail of government wrong-doings and massive violation of Dr. Lee’s rights to due process.  By any means necessary, the government was determined to put him away.  The witch-hunt began with a Gestapo-type investigation of Dr. Lee, his family, relatives, colleagues, and friends across the nation.  While the investigation was going on, partial and often biased pieces of information or evidence were leaked to the press to demonize Dr. Lee.  At one point, he was lied to by his FBI interrogator and threatened with the electric chair, invoking the Rosenbergs, a behavior FBI director Freeh belatedly acknowledged and disassociated himself publicly at the Senate hearings two weeks ago. 

 

Unfortunately for the government, the high-profile, overzealous investigation turned up no evidence of espionage.  Government prosecutors were forced to look for other evidence, including evidence voluntarily provided by Dr. Lee during his 20 “interviews” with the FBI and counter-intelligence.  They also had to seek other legal authorities for his indictment.  Nine months after he was fired, the government concocted 59 counts of indictment December 10 under the Atomic Energy Act, each of which had life imprisonment as a penalty, and accused him of mishandling or downloading classified nuclear information on to his unclassified computer in his LANL office, allegedly and rather vaguely with “intent to secure an advantage to a foreign nation.”  He was promptly arrested and detained.  At the first detention hearing December 13, Dr. Lee was denied bail by the magistrate.

 

The prosecutors were able to do this, as it turned out, only by retroactively upgrading the “protect as restricted data (PARD)” he downloaded to “secret restricted data (SRD). “  In the court of law, what the prosecutors did possibly amounted to evidence tampering or fabrication of evidence!  Under normal circumstance, as it is well known, mishandling of the PARD data of this variety by persons with security clearance is unfortunately a habitual and common, though prohibited practice that should not be condoned.  It is also the kind of rule infraction within a secured work environment that normally causes  an employee to be given a reprimand or a letter of warning by his or her supervisor at best and a revocation of security clearance or termination of employment at worst. 

 

No one has ever been indicted the way Dr. Lee was under the Atomic Energy Act and as you well know, the government prosecutors failed to produce any evidence of his intent to benefit a foreign power.   In fact, the alleged intent turned out to be yet another fabrication of the FBI, when Judge Parker ordered July 5, 2000 the government to disclose the names of the foreign countries.  Those countries turned out to be countries like Switzerland, Germany, Australia, Singapore, France and others to which Wen Ho Lee had considered, but to which he never applied for jobs, as alleged by the FBI.  This embarrassing disclosure effectively took away the legal basis of the indictment and delivered the prosecution a mortal blow.  No wonder when freeing him last month, Judge Parker questioned the indictment itself, asking, “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?”  Again, at this point, that is, the filing of the pre-trial papers early this year, the government could have decided to drop the charges against Dr. Lee, perhaps with a reprimand or warning.  Whatever was driving the prosecutors, it did not.  Instead, the government continued its ill-considered pursuit with its awesome power.

 

At the second bail hearing December 27 last year, the government insisted on no bail for Dr. Lee before then appellate Judge Parker.  The government’s argument was based on exaggerated risk of granting him bail and by false testimonies.  For example, Dr. Stephen Younger, the assistant director for nuclear weapons at the LANL and the expert witness of prosecution at the bail hearings, testified that Dr. Lee represented “the gravest possible security risk....to the supreme national interest” and suggested that the PARD data in his possession “could change the global strategic balance.”  At another point, the prosecution characterized the downloaded data as “the crown jewels” of American nuclear arsenals.  As recently as mid August, during the third bail hearings, the prosecutors claimed that “hundreds of millions of people could be killed” if the downloaded data were to fall into the wrong hands.  Also during the second bail hearing, FBI agent, Robert Messemer, in three separate occasions, smeared Dr. Lee’s character as untrustworthy and deceptive by giving deceptive testimonies himself.  It was these exaggerations and false testimonies that convinced Judge Parker to deny Dr. Lee bail.  It was not until the third bail hearings in August that their deceptive testimonies were exposed and soundly refuted.  Agent Messemer had to apologize to the court.  In the process, the prosecutors were embarrassed and discredited.  No wonder Judge Parker told Dr. Lee that he had improperly denied him bail: “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 FBI and its U.S. Attorney for the District of New Mexico.”  Under normal circumstances, he would have been charged with committing perjury, cited for contempt of court, and jailed. 

 

As soon as the government succeeded in denying Dr. Lee bail for the second time, the prosecutors wasted no time to compel Dr. Lee to confess to his alleged crimes by subjecting him to the cruelest and most unusual punishment.  From December 10, 1999 to the day he was set free on September 13, 2000, while he waited for the trial set for November 6, 2000, he was placed in solitary confinement 23 hours a day.  Only one hour a week, when he was permitted to be visited by his family and lawyers.  The one hour he was allowed to walk in the prison yard, he was shackled and chained waist down.  In other words, he was accorded worse treatment than convicted mass murderers while in custody!  Mr. President, how is this possible in a country ruled by law and committed to human rights?

 

No wonder the most prestigious science organizations of the U.S., among them the National Science Board, the American Physical Society, and the American Association for the Advancement of Science, felt compelled to protest publicly the harsh and inhumane treatment of Dr. Lee.  No wonder the Asian Pacific Americans in Higher Education (APAHE) and the Association of Asian American Studies (AAAS), the two leading national organizations, strongly condemned the mistreatment of Dr. Lee, demanded both freedom and justice for him, and backed up their demands with a national boycott of all the science laboratories operated by the U.S. Department of Energy (DOE), as long as Dr. Lee is denied freedom and justice.  Even Judge Parker, during the second bail hearing in December last year, found the treatment unusually severe and urged “the government attorneys to explore ways to lessen the severe restrictions currently imposed upon Dr. Lee while preserving the security of sensitive information.”  As you know, his appeal fell on a deaf ear and with it, the human rights of Dr. Lee.    In releasing him last month, Judge Parker apologized to Dr. Lee for the “demeaning, unnecessarily punitive” treatment on behalf of the judiciary and pointedly accused the government of abusing its power and misleading him into believing that Dr. Lee posed a threat to our national security.  Clearly, the prosecutors had resorted to physical and mental torture to extract confession.  The behavior of the U.S. Department of Justice brought ridicule and shame to the U.S. at home and abroad.

 

By summer this year, as you also know, the government’s case against Dr. Lee was totally discredited and fell apart under pre-trial scrutiny.   The collective outrage of Asian Americans, expressed through the boycott movement, was gathering strength and having a detriment impact on our national labs and attracting national attention.  At about the same time, newspaper editorials from coast to coast, in a sudden switch from indifference to outrage, turned against the government in a rare and unanimous denunciation of government misconduct in the  prosecution and treatment of Dr. Lee.  The prosecutors at this point should have accepted the inevitable and called it quit.  Instead, it decided to press forward, undeterred. 

 

It was at this moment, at the conclusion of the third bail hearing, that Judge Parker reached the conclusion that there was no compelling reaons to deny Dr. Lee bail.  So he drafted an order, granting him bail under what he later characterized as “draconian conditions of release.”  Judge Parker circulated the draft and scheduled a hearing on the draft order itself.  As expected, the prosecutors vigorously opposed his release on bail without new evidence or justification.  In fact, so desperate were the prosecutors they went directly to the federal appellate court in Denver to secure a stay of his order, even before Judge Parker had officially released the bail order.  For the third time, Dr. Lee and his supporters were profoundly disappointed and angry.  We of course do not know what transpired in closed sessions in the judge's chamber.  However, we do know that Judge Parker had earlier strongly urged the two sides to negotiate for an agreement and settle the case.

 

Following three days of high drama and tough negotiations, Dr. Lee, who had steadfastly maintained his innocense, agreed to plead guilty to a single charge of mishandling classified data and was set free without being put on probation.  The choice between enduring more months, if not years of torture and the government’s willingness to drop the other 58 charges unconditionally with one guilty plea was what he had to make.  He chose the latter. The New York Times immediately called it “a victory” for the defense and  a “virtual abandonment of the government’s case” against Dr. Lee. 

 

In setting him free, Judge Parker singled out Attorney General Janet Reno, Energy Secretary Bill Richardson and senior officials in the White House for what he said was a questionable indictment and accused the government of misleading him.  In apologizing to Dr. Lee, Judge Parker said with anger and contrition, “Dr. Lee, I tell you with great sadness that I feel I was led astray last December by the executive branch of our government.”  He also declared that the “top decision-makers” handling the case “have not embarrassed me alone:  they have embarrassed our entire nation and each of us who is a citizen of it.”  Mr. President, on the same basis, I urge you to apologize to Dr. Lee and grant him full pardon.

 

Unfortunately, Dr. Lee's release did not bring him peace.  Incredibly, immediately after Dr. Lee was free, Attorney General Janet Reno, Secretary Bill Richardson, and FBI director Louis Freeh, who had just been reprimanded by the judge, launched an all-out attack on Dr. Lee, Judge Parker, and the Wen Ho Lee supporters across the nation and vigorously defended their conduct in the prosecution of the case, using the same discredited arguments and evidence they had used during the second bail hearing in December, as if no new evidence and counter-arguments had been presented to Judge Parker’s court in the ensuing nine months.  Before a joint hearing of the Senate Judiciary Committee and the Senate Select Committee on Intelligence September 26 she declared, “Dr. Lee is no hero.  He is a felon.  He committed a very serious, calculated crime, and he pled guilty to it.  He abused the trust of the American people by putting at risk some of our core national security secrets.”  I was deeply offended by her statement precisely because it was her prosecutors and investigators that had abused the trust of the American people!

 

Instead of accepting defeat in the court of law, the Attorney General is now trying to incite public paranoia and hostility and to retry and convict Dr. Lee in the court of public opinion.  Her language was defiant and provocative.  Her lengthy joint statement with FBI director Freeh is a regurgitation of the original December indictment of Dr. Lee, arguing again why he was charged, why he was detained, and why he reached a plea agreement.  I personally find their joint statement unbecoming of the chief law enforcement officers of the U.S.  Their sentiment was echoed at the hearing by T. J. Glauthier, a representative and spokesperson of Secretary Bill Richardson.  Most offensive was the humiliating parading of U.S. Attorney Norman Bay, a Chinese American, whose entire statement before the joint hearing dealt exclusively on his Chinese American family background and his educational and professional accomplishments, making not one single reference to the subject matter of the hearing:  the investigation and prosecution of Dr. Wen Ho Lee.  Apparently the Attorney General thought that playing the race card alone at  the hearing  was sufficient to demolish the issue most central to the case, racial profiling.  This is racism and arrogance of the worst kind.  Sadly, the same “top decision-makers” reprimanded by Judge Parker either did not understand his opinion or they refused to accept his judgement.

 

As you can see from what I outlined above, the government never had a case against Dr. Wen Ho Lee.  The prosecutors had to resort to fabricating and exaggerating evidence and risk and to subjecting him to physical and mental torture.  He was falsely accused of spying for China in the context of highly partisan and at times, acrimonious debates over your policy of engagement and cooperation with China and arbitrarily dismissed from his job in violation of the LANL’s personnel policies and procedures.  After his dismissal, he was  subjected to nine months of round-the-clock survaillance and investigation and Congressional and media scrutiny during which not a shred of evidence on espionage was uncovered.  Yet, the government steadfastly refused to admit that it had no espionage case against Dr. Lee.  Instead, it  resorted to a string of inuendos and worse, wrong-doings in order to return the 59 counts of mishandling classified nuclear data, 39 of which carried a life sentence and to use torture in the hop of extracting a confession out of Dr. Lee. 

 

Thanks to a series of skillful pre-trial discoveries and hearings, the government’s case against Wen Ho Lee disintegrated rapidly, much to the embarrassment of the FBI, the DOE, and DOJ.  The hand-writing was already on the wall when Judge Parker ordered July 13 the government to turn over thousands of pages of evidence, including the downloaded PARD data and classified documents related to racial profiling and selective prosecution, which would have exposed more false and exaggerated claims and wrongful prosecution.  (The prosecutors erroneously called this "graymailing.")  Under such pressure from the judge, the government had no choice but to plea-bargain, to settle for one guilty plea based on Dr. Lee's improper retention of classified files, and to let Judge Parker set him free.  Yet, the counter-offensive launched by Attorney General Reno, Secretary Richardson, and FBI director Freeh in the post-release period suggests their unwillingness to accept defeat and their determination to continue indefinitely his prosecution in the court of public opinion.

 

President Clinton, Dr. Wen Ho Lee should not have been charged to begin with.  From start to finish, the case was based solely on his race, as I stated at the very beginning ot this letter, and the prosecution was vindictive, willing to do anything necessary to achieve its end.  You yourself correctly observed this un-American phenomenon September 14 when you said, “I always had reservations about the claims that were being made denying him bail.  So 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.”  Like many Americans, I believe the case was flaw and I believe he was forced to enter one single guilty plea under extraordinarily harsh treatment and the prospect of continuing the torture through what promised to be a very long and costly trial.

 

President Clinton, Dr. Wen Ho Lee is free now, but as long as he remains a convicted felon and vulnerable to random attacks by the DOJ without defense, he has failed to obtain justice for the wrongs done to him, his family, and, through guilt by association, to all Asian Americans.  This is why Asian Americans have been collectively outraged by his prosecution and persecution and are still boycotting the DOE labs and will continue to do so as long as there is no justice for him and racial profiling and discrimination against Asian Americans persist in these national labs.  Judging from the news coverage and editorial comments at home and abroad, especially those from Asia countries, most people did not see Dr. Lee as a person on trial.  Instead, they saw our system of justice on trial.  As Judge Parker correctly pointed out, our government, by its actions against Dr. Lee, has “embarrassed our entire nation and each of us who is a citizen of it.”  Only an apology on behalf of the executive branch of our government, like the one made on behalf of the judiciary branch by Judge Parker, will we right the wrong and only a full pardon will our entire nation, including you and I as citizens of the U.S., be delivered from our collective guilt, our collective faith in the system of justice be restored.  Only then will we be spared of the embarrassment among our own people and peoples throughout the world.  I urge you to act decisively and preferably before you leave the Office of the President, heal a deep wound wrongly inflicted upon Dr. Lee, his family, and Asian Americans, and remove the stain from your legacy as the President of the U.S.

 

I look forward to your favorable response.

 

Sincerely,

 

 

L. Ling-chi Wang, Director

Asian American Studies

 

cc:  Sen. Diane Feinstein

      Sen. Barbara Boxer