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On the Records

(Left to right) Defense lawyer, Mark Holscher, Alberta Lee, Dr. Lee, and son, Chung Lee, at homecoming (September 13, 2000). Photo courtesy of www.wenholee.org

Hearing set on APIA groups’ profiling inquiry

By Richard Benke/AP

The judge who apologized in sentencing Wen Ho Lee last year has scheduled a hearing on a petition to unseal documents that Asian Pacific Islander American groups want to examine for evidence of ethnic profiling.

U.S. District Judge James Parker on Aug. 22 scheduled the Albuquerque hearing for Oct. 2 at 2 p.m.

“I think it’s very positive that the judge has set a hearing in this case. We have always been under the impression that Judge Parker takes this case very seriously and took very seriously the allegation of selective prosecution [in the original Lee case],” said Diane Chin, executive director of Chinese for Affirmative Action.

The San Francisco-based civil rights group filed the petition to unseal on June 6, contending the documents may reveal profiling was used in deciding to selectively prosecute the Taiwanese-born Lee, a naturalized U.S. citizen and former Los Alamos scientist. The Asian Law Caucus and American Civil Liberties Union supported the motion.

“We are excited about the opportunity to get the motion heard and hopeful that the result will be that we can get most, if not all, the documents unsealed relating to the racial profiling issue,” said Zenobia Lai, executive director of the Asian Law Caucus. She said her group would not necessarily push to unseal all documents if national security issues were clearly shown.

The petition said the sealing of the documents did not satisfy First Amendment rules for denying public access.

“The sealing of records in this case violated the public’s common law right to inspect judicial records,” it said.

“The court has apologized to Dr. Wen Ho Lee for the manner in which his rights were violated in the course of his prosecution. However, the American public’s rights continue to be violated,” it said.

The group said Parker observed last Sept. 13 that the rapid conclusion of the Lee prosecution “occurred shortly before the executive branch was to have produced, for my review in camera, a large volume of information that I previously ordered it to produce.” Those documents were relevant to selective prosecution, the petition says.

The group contends it’s the court’s duty to decide what documents must remain under seal and not delegate it to the court security officer.

Last week, a Justice Department report criticized the Energy Department, which oversees the Los Alamos lab, and the FBI for the Lee investigation. The report completed by federal prosecutor Randy Bellows concluded Lee was singled out for an investigation into suspected Chinese espionage because the Energy Department misled the FBI.

Lee was never charged with espionage, but the report said: “The message communicated to the FBI was that the FBI need look no further within DOE for a suspect. Wen Ho Lee was its man. The FBI never should have accepted this message, as is.”

While the report says the DOE inappropriately targeted Lee, it concludes it was not because of his race.

Lee has also sued the government for allegedly leaking information to the media that made him appear to be a spy.

A motion filed by Lee’s attorneys a year ago suggested profiling may have been used in charging him with 59 counts of mishandling nuclear data.

Lee pleaded guilty to one count last September, and the government dropped the other 58 counts.

Lee was sentenced to the nine months already served.

Chin said on Aug. 22 she believed “the breadth of government misconduct” had moved “Judge Parker to that amazing apology from the bench.”

Parker had said: “I sincerely apologize to you, Dr. Lee, for the unfair manner in which you were held in custody by the executive branch.” He said the Justice and Energy departments have “embarrassed our entire nation and each of us who is a citizen of it.”