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Lee Supporters File Suit

Seek access to sealed documents in scientist’s case

Wen Ho Lee. AP file photo.

By Neela Banerjee

Just before Wen Ho Lee was released from jail, after spending more than eight months in solitary confinement on trumped up charges that he mishandled nuclear secrets, presiding Judge James Parker lashed out at the government for its treatment of the case.

“I sincerely apologize to you, Doctor Lee, for the unfair manner in which you were held in custody by the executive branch,” the judge said. “They have embarrassed our entire nation and each of us who is a citizen of it.”

Some nine months later, Diane Chin, executive director of San Francisco-based Chinese for Affirmative Action, recalled those words — and the judge’s acknowledgement that under Lee’s plea agreement, which shielded the government from disclosing information, the executive branch’s intentions in this case would remain secret.

Chin and other supporters of Lee are hoping to uncover the truth, however. Chinese for Affirmative Action (CAA) filed a motion last week to gain access to sealed documents in the prosecution of the former Los Alamos Laboratory nuclear scientist.

“The prosecution and incarceration under very severe conditions of Dr. Lee continues to affect the Asian American community and engender very broad based community mistrust of the federal government,” Chin said.

A recent incident involving the Department of Energy is the latest example of possible racial profiling by the federal government. When Congressman David Wu attempted to enter the DOE building, guards questioned his citizenship. His treatment, Chin said, reinforces the need to expose government practices toward Asian Americans.

Representing CAA will be a legal team consisting of lawyers from the American Civil Liberties Union and the Asian Law Caucus, Lisa Sitkin from the law offices of Steinhart and Falconer, and local counsel in New Mexico.

Arguing that it is the public’s First Amendment right to know and have access to pre-trial documents, especially when the government is concerned, CAA’s legal team hopes to immediately unseal all documents to prevent any further violation of the public’s constitutional rights.

Charges of Racial Profiling

In December of 1999, the United States charged Lee, a U.S. citizen born in Taiwan, with 59 counts of mishandling classified information. In what has become one of the most shocking events in recent Asian American history, Lee was kept in solitary confinement, denied bail and shackled with leg irons and chains for almost nine months.

Widespread community suspicion of racial profiling during the Lee case was supported by prominent individuals in the counterintelligence community. Both Chin and Victor Hwang, acting director of the Asian Law Caucus, said former directors of counter-intelligence at the Department of Energy and Los Alamos Labs indicated that Lee was targeted specifically for his race and ethnicity.

“If Dr. Lee had not been initially targeted because of his race, he may have very well been treated administratively like others who mishandled misinformation,” Charles Washington, of the DOE, said. Washington also stated he was unaware of any data that suggests Chinese Americans are more likely to commit espionage than any other Americans.

Robert Vrooman, of the Los Alamos Labs, said that he believed racial profiling was a crucial component of FBI and DOE investigations that identified Lee as a suspect.

In August of 2000, the ACLU and the Asian Law Caucus filed briefs in support of Lee’s motion to seek government evidence of race-based or selective prosecution. In this case, the government was ordered to produce the pre-trial documents by September 15. But on September 13 — with just two days until the deadline — the government dropped all but one of the 59 charges. Regarding the one charge of mismanagement of computer data, Lee and the prosecution entered into a plea bargain that sealed all of the records.

The sealed documents include motions, briefs, orders by the judge, transcripts and other memoranda. Because all the documents have been sealed, there is no way to tell the quantity of the paperwork.

“It is difficult because we are basically asking for something we know nothing about,” Sitkin said. “My guess is that there are hundreds of documents to review.”

Public’s Right to Know

Robert Kim, of the ACLU, said that the public’s First Amendment right to the documents is particularly applicable when criminal proceedings and issues of wide public concern are at hand. Kim said that one of the factors that supports disclosure in this case is that the proper procedure was not followed in the prosecution of Lee. Traditionally, there is a hearing to determine whether documents may be sealed, during which findings are presented that warrant why the materials should be sealed.

“The goal in uncovering these documents is uncovering understanding among the public of how the prosecutions are being conducted,” Kim said. “It also helps to curb abuses by the government and improves both fairness and the perception of fairness in government operations.”

Another argument looks at the actual prosecution of Lee as a threat to national security, which is the basis of the reasoning behind Lee’s severe incarceration in solitary confinement. The government used the same reasoning on the documents from the case, saying they needed to be sealed to protect national security.

“The fact that the government so exaggerated their claims and its reliance on protecting national security in the prosecution makes the claim that these documents are a threat to national security dubious at best,” Sitkin said. “And what we have argued was that it was the court’s duty to scrutinize the claim very carefully rather than defer to the government.”

Sitkin pointed out that this problem is much more widespread than just the Lee case, adding that “the government comes in and claims national security as a reason to keep secret anything that may be potentially embarrassing or damaging.”

The Lee family refused to comment on the filing of this case.

In conjunction with this motion, CAA will be filing a request under the Freedom of Information Act with the Department of Justice and other federal and state agencies seeking additional documents that may assist in determining whether racial profiling happened.

“Basically we are filing this motion to unpeel the layers of government subterfuge so we may finally obtain some answers,” Chin said, “answers which the government avoided providing to the court, but which we believe they cannot avoid providing to the public.”