JUDGE PARKER Dr. Lee, you have pled guilty to a serious crime. It's
a felony offense. For that you deserved to be punished. In my
opinion, you have been punished harshly, both by the severe
conditions of pretrial confinement and by the fact that you have
lost valuable rights as a citizen.
Under the laws of our country, a person charged in federal court
with commission of a crime normally is entitled to be released from
jail until that person is tried and convicted. Congress expressed
in the Bail Reform Act its distinct preference for pretrial release
from jail and prescribed that release on conditions be denied to
a person charged with a crime only in exceptional circumstances.
The executive branch of the United States government has until
today actually, or just recently, vigorously opposed your release
from jail, even under what I had previously described as draconian
conditions of release.
During December 1999, the then-United States attorney, who has
since resigned, and his assistants presented me, during the
three-day hearing between Christmas and New Year's Day, with
information that was so extreme it convinced me that releasing you,
even under the most stringent of conditions, would be a danger
to the safety of this nation. The then-United States attorney
personally argued vehemently against your release and ultimately
persuaded me not to release you.
In my opinion and order that was entered Dec. 30, 1999, I stated
the following: "With a great deal of concern about the conditions
under which Dr. Lee is presently being held in custody, which
is in solitary confinement all but one hour of the week, when
he is permitted to visited his family, the court finds, based on
the record before it, that the government has shown by clear and
convincing evidence that there is no combination of conditions
of release that would reasonably assure the safety of any other
person and the community or the nation."
After stating that in the opinion, I made this request in the
opinion right at the end: "Although the court concludes that
Dr. Lee must remain in custody, the court urges the government
attorneys to explore ways to lessen the severe restrictions
currently imposed upon Dr. Lee while preserving the security of
sensitive information."
I was very disappointed that my request was not promptly heeded
by the government attorneys.
After December, your lawyers developed information that was
not available to you or them during December. And I ordered
the executive branch of the government to provide additional
information that I reviewed, a lot of which you and your attorneys
have not seen.
With more complete, balanced information before me, I felt
the picture had changed significantly from that painted by the
government during the December hearing. Hence, after the August
hearing, I ordered your release despite the continued argument
by the executive branch, through its government attorneys, that
your release still presented an unacceptable extreme danger.
I find it most perplexing, although appropriate, that the executive
branch today has suddenly agreed to your release without any
significant conditions or restrictions whatsoever on your
activities. I note that this has 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.
From the beginning, the focus of this case was on your motive or
intent in taking the information from the secure computers and
eventually downloading it on to tapes. There was never really
any dispute about your having done that, only about why you did it.
What I believe remains unanswered is the question: What was the
government's motive in insisting on your being jailed pretrial
under extraordinarily onerous conditions of confinement until
today, when the executive branch agrees that you may be set free
essentially unrestricted? This makes no sense to me.
A corollary question I guess is: 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 and which I just dismissed?
During the proceedings in this case, I was told two things:
first, the decision to prosecute you was made at the highest
levels of the executive branch of the United States Government
in Washington, D.C.
With respect to that, I quote from a transcript of the Aug. 15,
2000, hearing, where I asked this question. This was asked
of Dr. Lee's lawyers: "Who do you contend made the decision
to prosecute?"
Mr. Holscher responded: "We know that the decision was made at
the highest levels in Washington. We know that there was a meeting
at the White House the Saturday before the indictment, which was
attended by the heads of a number of agencies. I believe the No. 2
and No. 3 persons in the Department of Justice were present. I
don't know if the attorney general herself was present. It was
actually held at
