Wen Ho Lee Freed; Judge Scolds U.S. Over Case Tactics

ALBUQUERQUE —  Wen Ho Lee walked out of court a free man Wednesday after a federal judge repeatedly apologized for incarcerating him for nine months without trial and angrily rebuked the Clinton administration for its handling of a case that “embarrassed this entire nation.”

In a morning marked by high drama, laughter and tears of joy, the former Los Alamos nuclear weapon scientist agreed in thickly accented English to a negotiated deal that brings an abrupt end to the highly controversial case.

Lee pleaded guilty to one felony charge of illegally retaining national defense information. He was sentenced to the 278 days he has served since his arrest. The government dismissed all 58 other counts, many of which carried life sentences.

“Next few days, I’m going fishing,” Lee declared with a broad grin on the mobbed courthouse steps after his release. His lawyer Mark Holscher called it “a sweet day indeed.”

In a sworn statement provided as part of the deal, Lee said for the first time that he did not intend to harm the United States when he downloaded classified nuclear weapon data onto an unsecured computer and portable tapes at Los Alamos and that he had not passed the tapes or their contents to anyone.

Lee, 60, also agreed to submit to intense debriefings by government investigators for 10 days over the next three weeks and further questioning if necessary over the next year to satisfy government concerns about why Lee created the tapes and what he did with them. Lee could face further prosecution if he fails to comply.

Norman Bay, U.S. attorney for New Mexico, called the resolution of the high-profile and highly controversial national security case “a favorable disposition for the government and a fair disposition for the defendant.”

But the court hearing was dominated by U.S. District Judge James A. Parker’s stunning summation, an emotion-charged monologue in which he repeatedly apologized to Lee and bitterly condemned government prosecutorial tactics.

Speaking in somber tones to a packed and hushed courtroom, Parker excoriated what he called the “top decision-makers in the executive branch.” He particularly criticized the White House, U.S. Atty. Gen. Janet Reno, Energy Secretary Bill Richardson and the FBI for their roles in bringing the case.

“They have embarrassed this entire nation and each of us who is a citizen of it,” Parker said.

The decision to prosecute Lee, he said, “was made at the highest levels of the executive branch in Washington, D.C.” He cited a meeting of senior Justice and Energy Department officials at the White House on Dec. 4, six days before Lee was indicted.

The executive branch, Parker warned, “has enormous power, the abuse of which can be devastating to our citizens.”

In contrast, Parker effusively praised Lee’s lawyers as “outstanding” and said that they would have provided a “formidable” defense had the case gone to trial.

“You turned a battleship in this case,” the judge told Lee’s lawyers from the bench.

Prosecutors sat stone-faced through much of Parker’s harsh scolding. The FBI’s chief investigator, Robert Messemer, whose recantation last month of his own testimony sharply undermined the prosecution’s case, scowled. Messemer, a beefy man with slicked-back hair, avoided reporters after the hearing.

An FBI source in Washington said that, while Messemer’s conduct in the case will be routinely reviewed, the agency seems to believe that his testimony “wasn’t that inaccurate” and it is doubtful he will be disciplined.

But Parker, who took over as chief federal judge in New Mexico this month, repeatedly said that the government “misled” him by exaggerating evidence against Lee in December when prosecutors insisted that the Taiwan-born scientist should be denied bail and held incommunicado in jail until his trial.

“Dr. Lee, I feel great sadness that I was led astray” during the December bail hearing, Parker said.

Parker, 63, also criticized John J. Kelly, the former U.S. attorney here, who quit in January to run for Congress. Before leaving, Kelly “personally argued vehemently against your release and persuaded me not to release you,” the judge told Lee.

“In hindsight, you should not have been held in custody,” he added.

Until recently, Lee spent his time in virtual solitary confinement in a Santa Fe jail. He was allowed to see his family one hour a week and to exercise alone one hour a day. He was shackled hand and foot even during those periods, however, as well as during his meetings with his lawyers.

Parker complained that the government moved much too slowly, despite his urgings, to ease the conditions of Lee’s confinement.

“Dr. Lee, you were terribly wronged by being held in pretrial custody in demeaning and unnecessarily punitive conditions,” Parker said. “I am truly sorry.”

Parker also questioned why the government ignored an offer by Lee’s lawyers, shortly before his indictment Dec. 10, for Lee to take a polygraph test at Los Alamos to answer questions about the tapes. Had they responded, the judge suggested, the last nine months might have been avoided.

“Nothing came of it, and I am saddened that nothing came of it,” Parker said.

But Parker called it “most perplexing” that the government, which repeatedly fought to keep Lee in jail, “should suddenly agree to release you” without any conditions. “This makes no sense to me.”

Lee’s family and supporters burst into loud applause when Parker dismissed the court--and closed the sensational case--shortly after 1 p.m. here. Many wept, hugged and cheered as they filed out into the blinding New Mexico sunshine.

The plea arrangement was hammered out last weekend after a series of secret sessions but nearly collapsed Monday shortly before the plea was to be filed and Lee was to go home.

In a case marked by agonizing cliffhangers, prosecutors insisted on additional concessions at the last minute, including a demand that Lee submit to government questions for more time than in the original proposed agreement.

The court-appointed mediator, U.S. 9th Circuit Court of Appeals Judge Edward Leavy, rushed to Albuquerque on Tuesday from his home in Portland, Ore., to negotiate a compromise. He met prosecutors and defense lawyers until nearly 3 a.m. Wednesday before the stalled deal was revived.

Lee will pay no fine or restitution under the agreement and is not subject to probation or supervision. He must get approval from the government if he wishes to travel abroad during the next year, but Leavy will mediate any disputes.

Lee arrived at his home in White Rock, a suburb of Los Alamos, at 5:30 p.m. local time to a tumultuous welcome from friends and supporters, as well as a crush of reporters and camera crews crowded around his simple wood-and-brick bungalow.

In a brief statement, Lee thanked his neighbors. “They made me very strong when I was in jail,” he said.

The first sign that Lee was going home came at 7:50 a.m., when defense attorney Holscher strode up the courthouse steps with a broad smile. “It’s a good morning, a very good morning,” he said.

But a 9 a.m. hearing was quickly postponed until 10, and that was pushed back another hour as lawyers drafted final wording of the deal. Lee, who wore a dark gray suit and a blue tie, appeared relaxed as he waved at friends and laughed with his lawyers. His wife, Sylvia, daughter, Alberta, and son, Chung, waited silently in the front row of the courtroom.

Finally, at 11:02, the silver-haired Parker entered the courtroom in his flowing black robes.

“I understand the parties have finally agreed,” he announced.

Lee raised his right hand, fingers splayed far apart, as he was sworn in beside his lawyers. For the next 90 minutes, the judge patiently explained the 10-page plea agreement, stopping every few minutes to ask Lee if he understood and agreed.

Although Lee has lived in the United States since the 1960s and is a naturalized U.S. citizen, he asked the judge to repeat himself several times or turned to his lawyers for a whispered explanation. “Now I understand, yes,” he then would answer.

As a convicted felon, Lee will lose the right to run for office, serve on a jury, possess a gun or vote.

“You’ll be giving up your right to cast a vote about what was done to you,” Parker told Lee. “Do you understand?”

“Yes,” Lee replied softly.

Finally, Lee read aloud his crime: “On a date certain in 1994, I used an unsecured computer in T-Division to download a document or writing relating to the national defense,” he began.

Lee said he knew at the time that possession of the tape outside the X-Division, the lab’s top-secret weapon design area, was unauthorized and violated lab directives. He said he kept the tape and never returned it to the lab.

“How do you plead, guilty or not guilty?” the judge finally asked at 11:58 a.m.

“Guilty,” Lee said firmly, leaning forward into the microphone. A tiny man, he stood a full head shorter than his attorneys and appeared an unlikely subject of such intense attention.

If convicted in court of the same crime, Lee could have been sentenced to 10 years in jail, a $250,000 fine and mandatory three years’ probation.

Except for an interview on CBS-TV’s “60 Minutes” in August 1999, Lee had not spoken publicly before. An anonymous scientist in the secret world of nuclear weapons, Lee exploded into the nation’s headlines in March 1999, when he was identified as the target of an FBI investigation into Chinese espionage. Photos of his arrest, when he was escorted away by burly FBI agents, were shown again and again.

The case created a political firestorm on Capitol Hill, where Republican critics accused the Clinton administration of ignoring nuclear theft to soothe relations with Beijing. In the end, the FBI admitted that it had no evidence that Lee was a spy and he was not charged with espionage.

But he was indicted Dec. 10 for allegedly downloading the files. From the start, the government said that it was most concerned about recovering seven tapes that Lee had created. Lee insisted that they were destroyed but offered no proof.

Under the agreement, Lee agreed to provide a “truthful written declaration, under penalty of perjury, stating the manner in which he disposed of the seven tapes.” The statement was turned over to the government, but was not released.

The chief prosecutor, Assistant U.S. Atty. George Stamboulidis, defended the agreement, since it prevents disclosure of national secrets in open court.

Even if Lee were convicted of all charges at trial, Stamboulidis added, he “might go to prison for a very long time, but we might never learn what happened to those tapes.”

When the judge asked why the government suddenly was willing to accept Lee’s word, after challenging his veracity for months, Stamboulidis replied that Lee would face “a whole world of horribles” through further prosecution if he failed to cooperate.

In Washington, FBI Director Louis J. Freeh defended the bureau’s actions in the Lee case and insisted that the most important result--protecting the nation’s secrets--has been realized.

In a statement, Freeh said that the plea agreement “provides the opportunity to determine what in fact happened to the nuclear design and source codes that Dr. Lee unlawfully and criminally downloaded, copied and removed from Los Alamos.”

Freeh said the data Lee took “represents the fruits of hundreds of billions of dollars of investment by the United States.”

Had they gone to trial, Freeh said, the government was prepared to prove that Lee sought to conceal what he had done, “and to destroy the electronic footprints left by the transfer and downloading process.”

He added: “The government was prepared to prove that, after the existence of the investigation became known, efforts were made by Dr. Lee to delete files that had been manipulated into unclassified systems” and “that there were many attempts--some in the middle of the night--to regain access to the classified systems even after access had been formally revoked by Los Alamos.”

“Determining what happened to the tapes has always been paramount to prosecution,” Freeh added. “The safety of the nation demands that we take this important step.”

Freeh did not mention Judge Parker’s scolding in his statement.

Reno said that she and Freeh “shoulder the awesome responsibility of protecting national security” and added that the terms of the plea will allow investigators to find out what happened to Lee’s tapes. “This is an agreement that is in the best interest of our national security in that it gives us our best chance to find out what happened to the tapes.”

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Times staff writer Robert L. Jackson in Washington contributed to this story.