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Burden of Proof

Wen Ho Lee Case: Senate to Holding Hearings on Probe of Former Los Alamos Scientist

Aired September 26, 2000 - 12:30 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: Wen Ho Lee spent nine months behind bars. But earlier this month, he cut a deal and pleaded guilty to just one of 59 charges against him. Now, two Senate committees are investigating the case. Did federal prosecutors go too far in their prosecution of the former Los Alamos scientist?


WILLIAM J. CLINTON, PRESIDENT OF THE UNITED STATES: We took those claims on good faith by the people in the government that were making them, and a couple of days after they made the claim that this man could not possibly be let out of jail on bail because he would be such a danger of flight or such a danger to American security, all of a sudden they reach a plea agreement.

JANET RENO, ATTORNEY GENERAL: Dr. Lee is no hero. He is not an absent-minded professor. He is a felon. He committed a very serious, calculated crime, and he plead guilty to it. He abused the trust of the American people by putting at risk some of our core national security secrets.

LOUIS FREEH, FBI DIRECTOR: He was entrusted with our nation's most sensitive nuclear weapons design and testing secrets, and he has publicly admitted violating that trust in an extraordinarily dangerous way.


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

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

Before we discuss the Wen Ho Lee case, an update from the United States Supreme Court. In a victory for Microsoft, the high court has sent the company's antitrust case down to the United States Court of Appeals for the D.C. Circuit, saying that the appeal should first be heard by an appellate court.

ROGER COSSACK, CO-HOST: In addition, Chief Justice William Rehnquist issued a statement noting that his son works for a law firm representing Microsoft. However, Rehnquist says he will not recuse himself from the case, should it return to the Supreme Court.

VAN SUSTEREN: Just across the street from the United States Supreme Court, two Senate committees are holding hearings on another Justice Department case: the prosecution of Wen Ho Lee.

COSSACK: At issue: Did federal prosecutors overreach in their case against the former Los Alamos scientist? and did they mislead the court into denying bail and keeping the defendant in solitary confinement?


FREEH: The Department of Justice and the FBI concluded that this guilty plea, coupled with his agreement to submit to questioning under oath and to a polygraph, was our best opportunity to protect the national security by finding out what happened to the seven missing tapes.

RENO: He copied the information from the unsecure computer on to 10 portable tapes, three were recovered by the FBI, seven are missing. What is more, he made copies of the portable tapes, and those copies are also missing.

When Dr. Lee found out he was being investigated, he took steps to cover up his actions.


COSSACK: Joining us today are Democratic Congresswoman Nancy Pelosi, former deputy attorney general George Terwilliger, and Republican Senator Charles Grassley.

VAN SUSTEREN: And in our back row: Barbara Harper (ph), Lula Harris (ph) and Meghan Scott (ph).

Senator Grassley, first to you. Why hearings?

SEN. CHARLES GRASSLEY (R), IOWA: We need hearings because, if you don't have Congress doing its job of checking the bureaucracy, we aren't serving the Constitution right. This is a particular instance where maybe there's the issue of espionage, there is the issue of security of our best secrets. There's the issue of whether or not an Asian-American has been treated fairly, compared to other people that maybe have done the same thing.

VAN SUSTEREN: What has, though, peaked your interest because there are lots of cases that float through the Justice Department, and this one has gotten an awful lot of attention and press, and there are hearings on it.

GRASSLEY: Let me suggest to you, first of all, that I tried to oversight the FBI very much over a long period of time because they tend to hype and overhype issues to a great extent. FBI agents lying about crime investigation, crime lab information, things of that nature. We have some of those element in this case as well: overhype, FBI agent lying, things of that nature. And Congress should not tolerate this on the part of any administration.

COSSACK: Representative Pelosi, you too are going to be involved with hearings from the House side. Why are you going to be holding hearings? and what are you particularly looking into?

REP. NANCY PELOSI (D), CALIFORNIA: Well, I don't know that we are necessarily going to have hearings. On the Intelligence Committee, where I serve, this afternoon we will be meeting with Director Freeh and Attorney General Janet Reno.

COSSACK: And taking testimony.

PELOSI: We will be asking questions why, questions coming from my community. I'm blessed in my constituency with an overwhelming number of Asian-Americans, being from California, and Asian-Americans throughout the country have a question: Why? What were the objective and neutral criteria used to bring these charges?

COSSACK: And what -- do you have any reason to believe there was anything other but -- other than neutral objective and criteria to bring these charges?

PELOSI: Well, if this had gone to trial, there would have been discovery for the defense, and we would hope to see what that discovery would have revealed.

VAN SUSTEREN: You know what, Representative Pelosi, this morning, when Director Freeh spoke, he said that, we, meaning the FBI and the Justice Department, could have proved those 59 charges then, when the indictment was delivered by the grand jury. And he said, today, we could prove those charges as well. He was quite vigorous in his defense.

He said that what Wen Ho Lee did was he moved the equivalent of 400,000 pages from a secure computer to a non-secure computer. he talked about that it took over 40 hours, and consumed over a period of 70 days. It sounds rather -- I mean, it sort of sounds worthy of investigation by the FBI in the beginning.

PELOSI: Well, let me say this: Whatever the charges, and Wen Ho Lee is innocent until proven guilty, what the conditions were of his arrest were extraordinary. He was in solitary confinement. He could not speak Chinese to his family. He could exercise. He was not eligible for bail.

Earlier this year, when the attorney general came to San Francisco for a pre-planned meeting on -- by -- of questions diversity, many in our Asian-American community delivered a petition to her asking that his conditions of incarceration be improved and that he be considered for bail.

So whatever the charges, and whatever the weight of evidence, it was unusual that he would be held under the conditions that he was. And we have the question why. And I will talk more about racial profiling if you want me to but...

COSSACK: We will come to that.

Senator Grassley, let me follow up with a question to you.

One of the things that I find disturbing in this case is this notion that you have a federal judge castigating the prosecution in this case. And then you have the president of the United States saying that he too is concerned what appears to be the way this case was handled. And yet you have very little, if any, response it seems to me from the heads of these departments in terms of a responsiveness to the American public.

After all, you know, it is us that we are talking about. That notion of this lack of responsiveness, this: I'm not apologizing for anything; is that what your group is looking into also, sir?

GRASSLEY: Well, I think here at the higher level, you've got the president of the United States, in his news conference, saying about: They did this, and they did that, and they did something else, you know, always saying he kind of disagreed or had questions about what was going on. And I think the president ought to remember that the buck stops, he's the follower of Harry Truman and that's what Harry Truman said: The buck stops at that time president's desk.

The president has to take some responsibility for this because, when he talks about they, he's the chief "they," he's in charge of everything.

Now, beyond that, though, following on what the congresswoman has said, I think we have a double standard here. I think you have an instance where the Justice Department was not going to investigate John Deutch, he's a congenital downloader, and in the process, now that the Wen Ho Lee case has fallen through for the Justice Department, they are going back to John Deutch. But John Deutch is not shackled and being deprived of any civil rights right at this particular case.

COSSACK: All right, let's take a break. Up next, why Janet Reno has called for an internal review of the Justice Department, and the difficulties of investigating cases involving sensitive national security secrets. Stay with us.


A second prison guard has been arrested and charged with one count of sexual intercourse with an inmate, for allegedly having sex with Susan Smith.

Smith was sentenced to life in prison for drowning her two sons in a South Carolina lake in 1994.



VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log onto We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show, and even join our chat room.


RENO: As attorney general and as director of the FBI, Director Freeh and I share together an awesome responsibility: to protect the national security of this nation, but at the same time to protect the Constitution and the rights of all Americans. These cases are difficult. Without full access to the facts and given some of the rumors and speculations that have been reported in the press, I can understand that questions arise. But I hope that by the end of our session today you will agree that our actions made sense, were reasonable and were correct.


COSSACK: Today on Capitol Hill, two Senate committees are holding hearings about the government's case against former Los Alamos scientist Wen Ho Lee. After meeting with President Clinton last Thursday, Attorney General Janet Reno ordered an internal review of the Justice Department's actions in this matter.

George, all of us, you know, have been in court and we've had cases that we thought looked great at the beginning somehow go south on us in the middle. This is one, though, that I'm particularly interested in in the sense that I have a feeling with the Justice Department here, is that they felt that they were going to be OK right up until they realized that the judge was no longer buying into what they were saying. And the fact was that he may ask them to turn over some of those allegedly secret materials to the defense, which in a sense they weren't ready to do. It seems to me that before you bring a case like this, you should have made that decision whether or not you're going to turn that material over or not, and you don't bring one on the chances of saying, well, if they make us, then we'll dismiss the case.

GEORGE TERWILLIGER, FORMER DEPUTY ATTORNEY GENERAL: Right. Well, Roger, I think those are all good points, very valid. And obviously the end result of this is not a victory for the government. On the other hand, I think we have to be sort of -- somewhat patient about getting answers and looking for scapegoats here. In national security, foreign counterintelligence, espionage cases, a lot of the time the full extent of what the government knows simply can't be revealed, at least while the case is ongoing.

This is a case that has raised more questions than answers, and it's one where, you know, I normally don't think that Congress doing an autopsy on a live body, investigating an ongoing investigation, is a good idea. But this one is because of what's at stake here and some of the issues that have been raised.

VAN SUSTEREN: You know...

TERWILLIGER: The question really is, if I may, Greta, just very quickly, the question really is, did the government overplay its hand or misplay its hand? One way or another, there was something wrong.

VAN SUSTEREN: Wait a second, I got to tell you, I think the case fell apart long before they, quote, "thought the judge was not going his way," because the judge wasn't going the government's way because I don't think the judge was particularly impressed when an FBI agent got on the witness stand in mid-August and said that he was, quote, "incorrect" under oath when he testified to matters that resulted in the incarceration of Wen Ho Lee, which, I might add, was solitary confinement, which I don't know -- let me go to you Rep. Pelosi.

Is there any -- I mean, when do you think, as legislator -- I realize you're not in the Justice Department -- when is it OK to hold someone in solitary confinement who has not been proven guilty beyond a reasonable doubt? Is there any time?

PELOSI: I don't think so. As I say, I believe that Wen Ho Lee is innocent until proven guilty. But let me just go to the point that we were making earlier. With all due respect to the distinguished senator, I know that he did not mean that the president of the United States, the buck stopping there, should intervene into an ongoing case that the Justice Department was pursuing. However, we are all responsible for the racial profiling that may have taken place here.

And it goes well beyond the Chinese and Asian-American community. It's bout the Arab-American community, it's about racial profiling in our own country, stereotyping people. And in this case, I don't know all of the particulars because they haven't been made public, and I know what I know from the Intelligence Committee, which of course I can't speak about here. But I do know this: that we have, over the years, been talking to our law enforcement agencies, including the FBI, about not jumping to conclusions, about going to Arab bookstores in the case of some -- when something happens, not going to an Asian- American scientist when something is suspicious.

What we were told in our committee -- not the committee, but the caucus of the Asian Pacific-American Caucus, was that because the Chinese government pursues Asian-Americans, Chinese-Americans, in the U.S. when it's looking for assets, that's why our law enforcement people go to Asian-Americans when they are looking for a spy. And that's absolutely un-American, wrong, in violation of the civil rights of those people, and really a tragedy in the case of Wen Ho Lee.

VAN SUSTEREN: Which brings me, also, back around to my second point about when the judge got mad.

You know, George, you know, the prosecution can put sort of a gun to all Americans' heads and say, look, you know, we thought that these incredible nuclear secrets were going to be disclosed and we're all going to be blown up as a result of it. But it was a motion for a selective prosecution and a request by the defense to find out if Wen Ho Lee had been singled out because he was Asian that coincidentally occurred about the time that the Justice Department decided, gee, maybe we ought to dump 58 counts and give him a one-count plea. Isn't that suspicious?

TERWILLIGER: Well, I think it is. And there's a couple of good points that come together that have been raised here today, Greta, yours and Ms. Pelosi's, and that is that it's very important that Americans have confidence in their government. What we're talking about here are protecting ourselves against the proliferation of weapons of mass destruction and catching spies, people who would aid in that process. Clearly we want our government to be aggressive about going about that business. At the same time, we want to make sure that when they do do it, they do it correctly and that they apply proper standards.

A lot of innuendo has been raised in this case about so-called racial profiling, other missteps. I think this is one where Congress can do the public and the government's efforts overall a service by getting the facts out.

VAN SUSTEREN: And I think that, in many ways, we Americans are so used in this because we have no clue. We don't want our nuclear secrets to go out and we don't want racial profiling, we don't want people being held in solitary confinement. We simply, as American people, don't have all the information. But we need to take a break.

Up next, did the Justice Department violate Wen Ho Lee's civil rights in this matter? We'll have more on the discussion when we come back.


Q: In what year was the last criminal prosecution for on-ice violence in the National Hockey League?

A: 1988.



VAN SUSTEREN: Critics of the federal government's incarceration of Wen Ho Lee charge that his arrest and prosecution were the result of racial profiling.

Lee was originally charged with 59 counts, none of which involved an actual charge of espionage. But he spent nine months in jail, his lawyers say, in solitary confinement.

Senator Grassley, let me give you two hypotheticals: You have your hearings; in hypothetical one, you conclude the Justice Department went way too far, went way over and violated Wen Ho Lee's civil rights; the other hypothetical is that you find out -- that you conclude this Justice Department was correct and did not have any overreaching.

What does your committee do -- what does this Senate do with either?

GRASSLEY: I think it's going to be very difficult to draw real firm conclusions, other than this whole episode is about various departments of the government managing a bad case and managing their risk.

But when we -- we want to know whether the laws are being faithfully executed. We want to know whether the FBI is seeking the...

VAN SUSTEREN: And if you find that out, then what, though?

So you find it out; what can you do?

GRASSLEY: Well, you can always change law, if law has been violated.

I think it's a case of making sure, as far as I'm concerned, through congressional oversight and through the checks and balances of our government that the Justice Department, the FBI, no agency of government can consider themselves law unto themselves; and there's too many agencies trying to do that, and stretch the law as far as they can, abuse power.

I mean, it's basic to government -- abuse of power, and congressional oversight is to make sure that law is followed and there is not abuse of power.

COSSACK: Well then let me follow-up on a question of Greta's, then.

We know, because it's been, apparently, admitted, that the FBI and lead FBI agent -- a lead FBI agent in this matter, as the judge showed, charitably put it, misled the court with his testimony.

Greta and I have pointed out that, when we used to be lawyers, they called it something other than "misled." What can you do -- what can your committee do about that, and how can you protect that that doesn't happen again, and what happens to this FBI agent?

GRASSLEY: Well, first of all, what this FBI agent did was lie and there's laws against lying, particularly lying under oath.


VAN SUSTEREN: If it's material, as we all know.

GRASSLEY: OK; beyond that, you expect the FBI to make sure that this FBI agent lives up to the high standards that everybody in this country has for FBI agents; and Congress does not take action against this person because that would be a bill of attainder.

But we would expect the FBI to take action against that. We would expect prosecution to be carried out, and we can recommend prosecution as a result of our oversight hearings; but the decision to prosecute is a presidential decision, or his subordinates.

VAN SUSTEREN: George, what's the pressure on the Justice Department with the oversight? What's the hammer to the Justice Department having the oversight?

TERWILLIGER: Well, let me say two things; I'll answer that question and just follow Senator Grassley very briefly.

I think the most serious thing that has come out of this whole business, so far, is this business of whether an FBI agent misled a court. Courts, judges, jurors, prosecutors, the entire nation ought to be able to know: When an FBI agent takes the stand, it's the truth.

COSSACK: And having everything to do with keeping a man in solitary confinement for nine months, that testimony.

TERWILLIGER: Based on that testimony, at least in part, so that bears looking to.

But, I think, Greta, the answer to your question is exactly what you've heard from Senator Grassley and from Representative Pelosi today -- and that is that this process has value of calling people to account for their actions. It's not pleasant, there's some tension involved, there's tensions between functions here, but it has value.

VAN SUSTEREN: But, I mean, tensions versus solitary confinement -- I mean, so, you know, they've been in the hot seat and they get a little tension, they get a little insulted, reputations are tarnished -- sitting in solitary confinement is a little bit worse.

TERWILLIGER: Well, sitting in solitary confinement is very serious. Whether or not Dr. Lee is innocent -- he has pled guilty to an offense, after all -- is another matter. Our laws, Greta...

VAN SUSTEREN: Every defense attorney in this country would have pled him to one in order to get rid of 58, where it would have been life. It would be crazy not to.

TERWILLIGER: Our laws recognize that, when a person represents a danger to the community in general, that pretrial detention is appropriate when blessed by a judicial officer. That's what happened in this case. He got the due process of law.

COSSACK: It's not the pretrial detention, George, it's the solitary confinement that's the buzz.

I mean, look, I've -- we've all had clients that have been detained. It's -- I'm getting told that if I don't break this, they're going to throw me off the show...

VAN SUSTEREN: But poor George doesn't get to answer, I want to point out. George, come back and answer sometime.

COSSACK: That's all the time we have for today, thanks to our guests, thank you for watching.

Today on "TALKBACK LIVE," former presidential candidates Bill Bradley and Gary Bauer discuss presidential politics. Tune in, log in, at 3 p.m. Eastern time for "TALKBACK LIVE."

VAN SUSTEREN: And tonight on CNN "NEWSSTAND," should disabled golfer Casey Martin be allowed to use a golf cart in PGA tournaments? The U.S. Supreme Court said today it will decide.

Send us your e-mail and phone in with questions tonight at 10:00 p.m. Eastern time; and we'll be back tomorrow with another edition of BURDEN OF PROOF. We will see you then.



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