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Burden of Proof

Why is Los Alamos Scientist Wen Ho Lee Still in Prison?

Aired September 12, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, CO-HOST: Today, on BURDEN OF PROOF: The government pinned 59 charges on him, and then offered to set him free for admitting to just one count. So, why is Los Alamos scientist Wen Ho Lee still sitting in prison?

(BEGIN VIDEO CLIP)

WILLIAM SULLIVAN, WEN HO LEE DEFENSE: It's very hard to have Wen Ho Lee's release dangled before us and then taken away.

UNIDENTIFIED FEMALE: I kind of expect on Wednesday that he won't be released either. My trust is way down as far as them being forthright and up front.

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

COSSACK: Hello, and welcome to BURDEN OF PROOF.

Yesterday, in Albuquerque, New Mexico, a deal to set Los Alamos scientist Wen Ho Lee free hit a snag. Justice department lawyers couldn't finalize a plea agreement with defense lawyers, and that forces U.S. District Court Judge James Parker to table the hearing until tomorrow.

GRETA VAN SUSTEREN, CO-HOST: Once a deal is reached, Lee is expected to be freed immediately, but the government wants to know why he downloaded information from his computer, whether he shared it and if the material has been destroyed.

COSSACK: Lee's supporters claim he was singled out because of his ethnic background and that similar incidents at the Department of Energy were ignored.

Yesterday, as he left the courtroom, his family and friends cheered in support.

And, joining us today from New York is criminal defense attorney Ronald Kuby.

VAN SUSTEREN: And, here in Washington: Elizabeth Robertson (ph), former justice department official Jeffrey Harris and Nathan Berseth (ph). And in our back row: Erin Houston (ph) and Chad Heimbuch (ph). And, also joining us from Albuquerque is CNN correspondent Tony Clark.

Tony, you are down in Albuquerque, where these proceedings are at least going on. Is anything going on at this moment?

TONY CLARK, CNN NATIONAL CORRESPONDENT: Today, the attorneys for Wen Ho Lee and the prosecutors are expected to be meeting pretty much all day long, trying to hammer out what they couldn't do yesterday.

You might remember in court yesterday, when the hearing began, they recessed for an hour, both sides saying that's all it would take to hammer out the final details of the plea agreement. That stretched into three hours, and when the judge, Judge James Parker, recessed the hearing, he said that they would resume tomorrow, and may or may not have an agreement.

So it all depends on what they are able to hammer out today.

VAN SUSTEREN: Tony, I must admit that I have a sense of outrage, at least from what I understand about the government's case. A week ago, they were fighting aggressively to keep him in jail, fighting a million dollar bond that the judge wanted to give him so he could be released.

Then they give him a plea agreement, which is when they work out the details, he will walk out of court. Yet why isn't he released today? Are the defense lawyers saying he should get bond at least today until we work out these details?

CLARK: Well, until there is a plea agreement, you might remember yesterday was the day that there were supposed to be arguments before the 10th Circuit Court of Appeals. Wen Ho Lee was going to be released under house detention two weeks ago, and that is when the prosecution went to the 10th Circuit and said this man is a security risk, and ought to be kept in solitary confinement. They were going to fight that out in Denver yesterday, and that's why I think the plea agreement came as such a surprise to everyone.

COSSACK: Tony, do we know, or have any idea, what the problem is with this plea agreement. I mean, look, what do we do know? We know that, from 59 counts, the government is now willing to say one count. We know he's not charged with espionage. What is the problem here? Do we have any idea?

CLARK: Speculation here in Albuquerque is two things. His claim in a civil case against the government that he was singled out because of his ethnic background, that's why they went after him. And government prosecutors may want that dropped as part of the agreement.

Then there just may be the proffer itself, both sides agreeing what the facts are, what facts would have been prevented if this case had gone to trial, and what Wen Ho Lee is willing to do in exchange for dropping those 58 counts, whether he's willing to sign certain statements, take polygraph or the like.

VAN SUSTEREN: Tony, before we lose you, and we are going to lose you in a few minutes, on August 17th, an FBI agent testified, and he admitted to, in his terms, "misleading the court." What was that about? Did the FBI agent in essence say he lied to the judge?

CLARK: That was really a turning point. The FBI agent, among other things, changed his testimony, admitted that he has earlier said Mr. Lee, Dr. Lee had hoodwinked a colleague by saying he wanted to download a resume. In changing his testimony, he said, oh well, he did say that he was downloading the particular information that he had.

He also -- the same agent said that Mr. Lee had met clandestinely with Chinese scientists, and then later testified, well, that was in fact a meeting that was paid for by the officials there at Los Alamos. It is...

VAN SUSTEREN: You say it is a change. Is there an investigation of this FBI agent. I mean, this man has been held in solitary for the last eight, 10, 12 months, under a 59-count indictment, his family has been going through hell, and now we have this FBI agent who apparently has testified that he testified falsely. Is there an investigation, if you know, going on about this agent?

CLARK: No, and in fact, in the judge's memorandum, he doesn't say he testified falsely, he says the judge said he just admitted that he incorrectly testified. And so, I think, at this point, they are leaving it at that.

COSSACK: You know, Greta, I used to have a few of those clients that incorrectly testified, but unfortunately that isn't what the judge called them when my clients did it.

I want to ask you one question, though. I can't quite figure out, and perhaps you can. If this FBI agent testified, let's just say, "incorrectly," and let's just say that this judge, as we know, found that he should have a million dollars bail, how can the 10th Circuit reverse that, and keep Wen Ho Lee in prison in light of what this testimony is, and there is nothing changed it.

VAN SUSTEREN: I've got to tell you, even the greater outrage is the fact that this man has been held in solitary, and you've got others who apparently have done acts similarly who are not Asian- American, and I don't hear about them being held in solitary.

But let's go to New York to Ron Kuby.

Ron, do you want to weigh in on any of these, at least what I consider, very troubling topics.

RONALD KUBY, CRIMINAL DEFENSE ATTORNEY: What was done to Wen Ho Lee was absolutely outrageous. I mean, we almost saw Chinese version of the Rosenberg case, with all of the stereotypes of the yellow peril and Chinese scientists selling us out. And what we saw was a much ballyhooed investigation of stolen nuclear secrets, secrets that apparently were genuinely stolen.

We saw the targeting of Wen Ho Lee on the basis of evidence that was never made public. And over a period of time, what we learned was the FBI, they testified incorrectly. Well, when my clients testify incorrectly, they usually end up going to prison.

There was a series of government reversals in this case. And now we have Wen Ho Lee getting ready to plead guilty to really nothing more than a ministerial error.

VAN SUSTEREN: Jeff, you know, it is extraordinary, I mean, here the government says, look, the reason -- what we are hearing is they are saying, the reason we agreed to this plea agreement is because we wanted to get information from Wen Ho Lee.

And now what they are saying is, because they thought there was such important stuff, but then they give this deal where he apparently is going to walk out of jail tomorrow a free man. If they are so afraid of him, what happened to the prosecution's case?

JEFFREY HARRIS, FMR. DEP. ASSOC. ATTY. GENERAL: Well, I don't think the prosecution ever had a case. What I think happened here is that the Albuquerque Office of the U.S. Attorney got rolled by the FBI.

The FBI comes in and says we have a major national security case. The U.S. attorney says: What is the evident? They tell him. He said it is not too good. They say, look, you've got to go with this, this guy is a national security risk, and that office probably doesn't have the wherewithal or the backbone to do the right things, as lawyers, to tell the cops that, if you have a case, give us evidence; and if you don't, we can't do this.

VAN SUSTEREN: This guy has been held in jail.

COSSACK: Jeff, let me jump in a second. Jeff, you know, one of the things that is really troubling to me in this case, and I usually come down on the government's side a lot of the times is that the government rolled on this case right after they were subpoenaed for evidence to show whether or not this was an equal protection case, whether or not there was -- that Wen Ho Lee was picked out because of his background. That's when the government rolled on this case. That makes me very uncomfortable.

HARRIS: Well, I think that the government may have rolled at that point, I think that was only one of their problems. My guess is that the FBI came in and said: Look, we know this guy is guilty, but we just don't have quite the evidence, but we need to really lean on him.

The U.S. attorney went along with it and never should have. I've seen this happen before, the FBI, when they get these kind of cases, puts a lot of pressure, especially on a smaller U.S. attorney's office that doesn't have the horsepower to really fight the bureaucracy.

VAN SUSTEREN: Tony, I'm not going to ask you your opinion on this, but I want to know, do any of the facts sort of support our feeling that here that the prosecutor and the FBI may have been less than good prosecutors -- investigators on this case.

CLARK: Yeah, I think so. I think trust -- and a lot of the supporters' trust in the government has gone down, Wen Ho Lee's supporters.

One thing I think that is interesting, in looking at the government's efforts to keep Wen Ho Lee in solitary confinement, you might remember, in March of 1999, he was fired from his job at Los Alamos, he was considered a security risk. But he was not under arrest until December.

So he went nine months still being free to go about. And so, for many people, it is hard to understand, if the government could allow him to go free those nine months, why it is that he has to be in solitary confinement now.

VAN SUSTEREN: Tony, thank you very much for joining us today from Albuquerque, New Mexico.

Up next, has this case collapsed on the U.S. government? Stay with us.

(BEGIN LEGAL BRIEF)

The clemency petition of Derek Barnabei was rejected by Virginia Gov. Jim Gilmore Monday. DNA tests revealed that Barnabei's blood was found under the victim's fingernails.

Barnabei, convicted of a 1993 rape and murder of an Old Dominion University freshman, is scheduled to be executed Thursday.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. ARLEN SPECTER (R), PENNSYLVANIA: The incompetence of the Department of Justice is obvious, and the Department of Justice owes an explanation perhaps to Dr. Wen Ho Lee and to the people of the United States for their bungling of that case.

(END VIDEO CLIP)

VAN SUSTEREN: Originally, federal investigators launched a probe to determine if Los Alamos scientist Wen Ho Lee provided nuclear secrets to China. But on Sunday, Justice Department sources told CNN that there was no evidence of espionage.

If the details of a plea agreement can be reached, Lee could be heading home tomorrow.

Ron, what do you make of the fact that apparently the plea agreement, the best we know, is 58 counts dropped, he pleads to one. In exchange, they recommend to the judge, time served, and they want cooperation. What is so difficult about hammering out these details? What do you think is the problem?

KUBY: Well, you know, I've actually hammered out a classified information agreement with this very prosecutor, and frequently there are problems dealing with what can be disclosed under what circumstances and to whom. So I think that this is probably just a language problem because everybody very much wants this deal.

But it is incredible to me that two weeks ago, the government can say: This man has to be held, not just without bail, but in solitary confinement, because in his mind he possesses the crown jewels of American nuclear policy. He is so dangerous that, if allowed to communicate with anybody, even his wife, hundreds of millions of people could die in a nuclear holocaust, that was their position two weeks ago. And now, as soon as the ink is dry on this deal, they are willing to release him.

VAN SUSTEREN: Jeff, do you agree with Ron -- or do you think the problem could be, the typical problem we have when prosecutors and defense attorneys are trying to hammer out an agreement where there's cooperation, where the prosecutors think that the person that they are working an agreement out with knows a lot more than the person says.

HARRIS: Well, you know, I think that's what the problem. I am sure that defense attorneys are not going to turn over all of the cards, or give them much of a preview, and the government is worried that they won't get full cooperation.

The defense attorneys have a well-founded fear, especially considering the way the government has handled this up to now, that Wen Ho Lee is going to go home, they are going to debrief him, and then the government is going to run into and say: We don't think he was truthful, we think he violated the plea agreement, put him back in jail.

COSSACK: Jeff, don't you think that, at this particular time, though, that defense, because it has now been announced that the prosecution was willing to drop 58 of these counts, that the defense really has the cards, that if you were the lawyer for Wen Ho Lee, wouldn't you just sort of sit tight and say: You know, guys, you want to try this case, come on, let's go try it.

HARRIS: I think they do have the better leverage at this point. And I think what they are worried about is they don't want Wen Ho Lee to become another Webster Hubbell, that after he works out his plea agreement his troubles first start.

VAN SUSTEREN: Ron, Senator Specters says he thought the Justice Department should be investigated about how they handled it. I have got to tell you, holding a man in solitary confinement, dropping a case from 59 counts down to one, I join Senator Specter in that I think there should be some investigation of how they handled this.

KUBY: We can feel bad for Wen Ho Lee, but I mean let's just remember, he is one of the sort of the masters of war who has spent his whole life figuring out how to blown up chunks of the planet.

I guess what is of more concern to me is nuclear secrets genuinely were stolen. And because the government focused on Wen Ho Lee as they did, they missed the opportunity to find out who actually did steal those crown jewels. COSSACK: Ron, even masters of war are entitled to constitutional rights.

KUBY: I agree. He's entitled to due process, and I am big advocate of that. My sympathy level for the man is not terribly high. Maybe if he had gone into the minister, for example, instead of trying to annihilate all life on Earth I might feel differently.

VAN SUSTEREN: I don't go as far as you do, Ron, on that.

Jeff, do you think there should be some sort of congressional investigation as to how this was handled, at least from what we know now. From the outside, it looks very bad.

HARRIS: Absolutely. I couldn't agree with Senator Specter, I can't think of an issue I could agree with him more on. This case at least appears to be one of the darkest episodes in the Department of Justice's handling of criminal prosecutions.

VAN SUSTEREN: Do you think this was racially or ethically motivated looking at it?

HARRIS: I don't believe that there was animus toward Dr. Lee because he's Chinese, but I think that the FBI made the simple connection: Chinese-American, secrets going to China.

VAN SUSTEREN: How can you let them off the hook on that because, you know what, there are a lot of white Americans who have downloaded information and taken it home that they should not have done that did not sit in solitary for 10 months.

HARRIS: I wouldn't let him off the hook for it because I do believe that that was why they made the connection, it was impermissible.

VAN SUSTEREN: I don't even think it is impermissible, you know, it is dead wrong.

HARRIS: It is probably...

COSSACK: That's the problem. It is 100 percent wrong. It is not something that can even be tolerated if that is, if there's any evidence of that.

VAN SUSTEREN: Especially the discriminatory treatment. Let me throw this to you Ron.

Ron, is there discriminatory treatment? Does an Asian-American who works nuclear secrets have a different sort of set of rules than a white American do you think?

KUBY: Probably the clearest example is John Deutsche, the former director of the CIA, who takes a computer with classified information home, which he shouldn't have been doing in the first place, and the uses it to access porno sites, you know striptease.com giving away potential nuclear secrets to the porno sites. VAN SUSTEREN: I don't think he has ever said that he accessed those porno sites. I don't think you can make that judgment. I think that's a little rough on the former director.

HARRIS: There is clearly a double standard because it is clear that the mishandling of classified information was -- has occurred at the CIA at the highest levels, and it hasn't gotten the sort of reaction that this has.

COSSACK: Jeff, what about those other investigations that are going on of Los Alamos? do you think this is going to have an impact on those?

HARRIS: It sounds like, from what you hear about the investigations of the disappearance of those hard drives, which potentially has even more sensitive information, that the FBI is nowhere, they are not going to get anywhere on it. And I really think that the whole Los Alamos situation is now so muddled and the morale is so bad and the confidence that the security can be put back in place is so low that...

VAN SUSTEREN: It is bad. That's all the time unfortunately that we have for today. Thanks to our guests, and thank you for watching.

This afternoon, join my co-host Roger on "TALKBACK LIVE," Democrats smell a rat. How alleged subliminal messages in GOP campaign ads are exposing a mousetrap for George W. Bush. That is at 3:00 p.m. Eastern time.

COSSACK: And join Greta tonight on CNN "NEWSSTAND," a startling new television program exposes real-life confessions from behind police closed doors. Entertainment for the voyeur of the police blotter? or an intrusion of privacy for the accused? Greta and her guests will take your phone calls and e-mail at 10:00 p.m. Eastern.

I will be watching. And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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