Reno, FBI fumbling for an explanation

Posted: Thursday, September 28, 2000

This editorial appeared in today's Washington Post: Attorney General Janet Reno and FBI Director Louis Freeh insist the prosecution of Wen Ho Lee was correctly handled at every stage. In their testimony before congressional committees, they argued that his indictment on charges that could have resulted in life imprisonment was reasonable and could have won conviction on every count. It was reasonable then to hold him without bail. But after nine months of coercive detention, it was also right to settle the case for no jail time beyond what the former Los Alamos scientist had served. The nation's top law-enforcement officers can't have it all ways at once.

Mr. Lee's prosecution, Ms. Reno said, was justified because "he is not an absent-minded professor...." Mr. Freeh insisted that each of the 59 counts "could be proven in December 1999," when the indictment was filed, "and each of them could be proven today."

Except that, Mr. Freeh admits, maybe they couldn't be proven today. Recent rulings by the judge hearing the case, he complained, would have allowed Mr. Lee to present information in open court about the codes he downloaded. This ruling, Mr. Freeh said, "would have exposed extremely sensitive nuclear-weapons information during a public trial." An FBI agent's misstatements in court hadn't helped the government's case either. Despite all this, Mr. Freeh contends that the case "remained very strong."

The decision to settle the case doesn't reflect weakness, in his view, but rather a tactical judgment. The bottom line, according to Mr. Freeh, was that even "a conviction on each and every count ... would not have guaranteed the cooperation of Dr. Lee." And that cooperation was "the one thing the government most needed to protect our national security."

The case does seem to have presented some difficult choices. Federal law is designed to guarantee the right to a fair trial while protecting important national-security interests. But there are times when these goals cannot be reconciled and the government must choose between punishing an alleged offender and maintaining state secrets. Moreover, Mr. Lee's behavior is genuinely disturbing, and it isn't hard to imagine how agents came to believe the worst.

That said, it is hard to imagine that Mr. Lee could have gone from a mortal threat to national security to a man to be let off for time served. If a man who possesses nuclear secrets has acted with intent to harm American national security and aid foreign powers it can't be safe to have him walking the streets. Either the indictment overstated the case, or Mr. Lee has been given his freedom somewhat recklessly. While it is possible the case could have been as strong as Mr. Freeh and Ms. Reno are saying and yet unexpectedly vulnerable because of the judge's pretrial rulings, it seems more likely that the government was inadequately attuned to the case's potential weakness. If Mr. Lee was overcharged to begin with and then held under extraordinarily harsh conditions principally for coercive purposes and on the strength of evidence that would not, ultimately, stand up, then authorities compound their error by insisting they were right all along.

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