On Wednesday, September 13, former Los Alamos scientist Wen Ho Lee pleaded guilty to a charge of mishandling nuclear secrets. The fine: $100. It was a vindication for Lee, who was able to return home after 278 days of harsh solitary confinement. At a neighbor's house, family, friends, and supporters waved flags and greeted him with a loud rendition of "He's a Jolly Good Fellow." In his plea bargain, Dr. Lee agreed to plead guilty to a single charge of illegally downloading secret material if the U.S. government lifted the much more serious charges of espionage originally filed against him. To most observers, by releasing Lee the Justice Department acknowledges that the man who was once called the "Spy of the Century" — and who many suspected of selling nuclear secrets to Beijing — is essentially harmless. Even if he had violated Los Alamos's stringent security regulations by improperly downloading secret tapes, extensive investigations have failed to come up with any evidence to substantiate the 40 charges accusing Lee of downloading security information "with intent to harm the United States." Such charges would have led to a maximum sentence of life in prison for Lee.

Lee's arrest last year came at the end of a five-year investigation of the Los Alamos computer engineer, who is a naturalized US Citizen born in Taiwan. Since the Cold War, American intelligence has refocused its attention on China, which has been accused of stealing the "crown jewels" of American missile technology. The Cox Report in 1999 suggested that Chinese-supported spies had been funneling American military secrets to Beijing for decades. As Lee exited his maximum-security cell for the last time yesterday, many suggested that he was a victim of an anti-Chinese witchhunt that had similarities to the 1950s Red Scare.

In an extraordinary statement to the Court, Judge James A. Parker offered an apology to Mr. Lee for what he called "abuse of power" by the federal government in its prosecution of their case. While conceding that Dr. Wen Ho Lee had violated security regulations, Judge Parker harshly criticized the Justice Department and the executive branch for leading him to order Lee's pretrial detention under "extraordinarily onerous conditions of confinement". Claiming that he had been "led astray" by "top decisionmakers", Judge Parker specifically criticized Attorney General Janet Reno and FBI Director Louis J. Freeh, among others, of abuse of executive priviledge in their prosecution of the case. "It is only the top decision makers in the executive branch¿who have caused embarrassment by the way this case began and was handled," said Parker, "They did not embarrass me alone. They have embarrassed our entire nation and each of us who is a citizen of it."

Speaking briefly to reporters after Dr. Lee's release, President Clinton remarked that he had been "troubled" at the way Lee was treated. Janet Reno, in a news conference on September 14, was unwavering in her defense of the Justice Department's handling of the case. Wen Ho Lee's confinement, she claimed, had been imposed in accordance with US policy in cases of mishandling of security information. She claimed that if Lee had been more forthcoming earlier about the security violation, the harsh terms of his detention might have been dropped.

The finger-pointing has just begun. Dr. Lee is now free to pursue a lawsuit in which he accuses the FBI of violating his privacy. Sen. Arlen Specter (R-PA) announced this week the formation of a subcommittee to investigate the handling of the case by the Justice Department. And it looks like Janet Reno is going to be subjected to one more firestorm of criticism before heading off into the sunset. Most agree that this is an unfortunate case of an individual being accused of crimes that are dramatically out of proportion to his actual offence. But did the Justice Department "embarrass" the United States with its conduct in this case?

On One Hand...

The Justice Department and Janet Reno owe Wen Ho Lee an apology. As an American he was entitled to be released on bail until he was tried and convicted. There are exceptions to these basic rules, but those exceptions should be rare. The only extraordinary action in this case, however, was the intervention of the executive branch in the trial, and the request made to the presiding Judge Parker to keep Dr. Lee in prison under extreme restrictions. By using their extraordinary powers, the Justice Department in Washington was able to use Dr. Lee as a politically convenient scapegoat in a witchhunt for Chinese spies. But all they had was the evidence of Wen Ho Lee's security violation. There was never any indication that Lee had used the tapes to pass on military secrets to foreign powers. But he fit the profile - Asian, foreign-born — that fed the recent wave of anti-Chinese paranoia. Dr. Lee spent nine months in solitary confinement, separated almost completely from his family and the outside world, while under almost constant pressure from investigators and prosecutors. And he had not yet been proven guilty. Janet Reno can do little to compensate Dr. Lee for the time he has lost, but she owes the rest of the country an apology for unjustly violating the rights that Mr. Lee — and the rest of us — are entitled to as Americans.

On the Other Hand...

Judge Parker's screed against the Administration was improper and unjustified. The only person responsible for Dr. Lee's confinement was Dr. Lee himself. He had been caught copying design secrets for nuclear weapons. That crime is a felony, and the fact that he chose to commit it at Los Alamos speaks for itself. He has himself admitted to perpetrating that crime. He has not yet explained his motives in doing so. Under those circumstances, when someone is suspected of unauthorized possession of documents related to the national defense, the Justice Department has little choice but to order his or her confinement under circumstances which would make further leakage of information impossible. Janet Reno took that step because Lee refused to answer any of the questions asked of him by the U.S. government. If he had been forthcoming about what he had done, it would have been immediately clear that he didn't need to be confined as he was. Lee waited nine months to explain what he had done, and he only has himself to blame for that.

Furthermore, Judge Parker's "apology" was not an apology at all. It was an attempt to deny any responsibility for the detention that he himself ordered. For political reasons, or simply to wash his hands of an ugly and unfortunate turn of events, Parker took the opportunity to attack the entire executive branch of the U.S. without implicating himself or his colleagues in the trial that he presided over. The targets of his tongue-lashing — Janet Reno, the vice president, the president, and all other members of the Clinton cabinet — are not surprising, particularly when they come from the mouth of a Reagan-appointed judge. While Parker's motives and irritation are understandable, he has spoken out of place. No judge should use the bench as a platform for attacking another branch of government.

• "On 10 April 1999, FBI agents searched the home of Wen Ho Lee, "a former physicist at Los Alamos National Laboratory who has been identified as the prime suspect in an espionage investigation to determine whether China obtained secret information about U.S. nuclear warhead design in the mid-1980's."
• "Wen Ho Lee tried to hide evidence that he had transferred nuclear secrets out of a computer sustem at a Government nuclear weapons laboratory two days after he failed an FBI polygraph examination in February, according to United States Officials. The scientist deleted more than 1,000 files containing millions of lines of classified computer codes related to nuclear weapons from the computer sustem at Los Alamos National Laboratory."
• Case workers found that workers in Lee's "X Division" of the facility often stacked piles of classified papers containing the same codes he is charged with downloading in hallways when their offices became too cluttered. "The entire case arose from a sense that some power was stealing secrets, but there is no evidence at all that that happened," says Lee's attorney, Brian Sun, "After over 1,000 interviews and one of the most extensive investigations in U.S. history, they have still come up with zero."

Washington Post, April 11, 1999; New York Times, April 30, 1999; Asiaweek.com, April 21, 2000