Appeals Court Delays Release of Wen Ho Lee

A federal appeals court issued an emergency order Friday to indefinitely delay the release of Wen Ho Lee only minutes before the former Los Alamos nuclear weapon scientist was to leave jail on $1-million bond.

In a highly unusual move, the U.S. 10th Circuit Court of Appeals in Denver ordered the stay before the U.S. attorney here had filed a formal appeal to prevent Lee from going home. Indeed, the chief prosecutor, Assistant U.S. Atty. George Stamboulidis, said he had not been informed that a stay was being issued.

The emergency order also surprised U.S. District Judge James A. Parker, who is presiding over the high-profile case. Parker said at a court hearing, called five minutes before a noon deadline he had set for Lee’s release, that he was handed a copy of the faxed one-sentence order only as he sat on the bench.

“The release of [Lee] is stayed pending further order of this court,” the order read.

Parker criticized the order, saying that the Denver court probably would not have issued the stay if the judges had seen the evidence that he had reviewed since taking over the case in June.

The news came as a shock to Lee’s family and lawyers, who accused federal prosecutors of misleading conduct and outrageous behavior.

“Your honor, this isn’t the way the judicial system is supposed to work,” defense attorney John Cline told Parker.

Nancy Hollander, another of Lee’s lawyers, said that the Justice Department called the Denver court to request the stay about 11:30 a.m, and the appeals court ruled 15 minutes later. Defense lawyers were not notified, she said, and thus were unable to respond.

“We were blindsided, completely blindsided,” Hollander said. “In my understanding of the criminal justice system, the court hears both sides and rules. That’s not what happened in this case. The court did not hear anything from us and [it] ruled.”

The legal battle over Lee’s future now moves to the appeals court in Denver. No date was set for a follow-up hearing. But Parker warned that the judges there do not have easy access to the reams of highly classified evidence on which the case is based.

“I don’t know how you’re going to get all the classified information to the 10th Circuit quickly,” he told prosecutors.

In Washington, Chris Watney, a Justice Department spokeswoman, insisted that the Denver appellate judges had “moved on their own.” Legal experts said the move, known as sua sponte (“of one’s own will”), is highly uncommon but not improper.

“It’s really extraordinary,” said Erwin Chemerinsky, a law professor at USC. “A court decided an issue before it was even presented. . . . The defense didn’t get an opportunity to respond.”

Lee, who has been imprisoned since his arrest nearly nine months ago, spent the day in Parker’s court but was returned to the Santa Fe County Jail in late afternoon.

In a day marked by confusion and bitter legal wrangling, Lee’s lawyers filed a motion asking the Denver court to reconsider the stay at virtually the same time late Friday that the U.S. attorney’s office here filed its own appeal of Parker’s bail order.

“Dr. Lee has spent more than eight months shackled in solitary confinement because the prosecution misled Judge Parker [and this court] about the significance of the information at issue and the nature of Dr. Lee’s conduct. He should not spend a single day more in prison,” the defense petition said.

The government, however, argued that “the degree of danger associated with Lee’s release, in combination with the extraordinary conditions imposed by the court, indicate that this case will present unique issues on appeal, which will require a reasonable amount of time for the court of appeals to review.”

Lee’s daughter, Alberta, said that she was “extremely disappointed” at the day’s events. “My family and I remain optimistic and hopeful that he will soon be released,” she said in a telephone interview. “We look forward to seeing him soon.”

Friends and neighbors in White Rock, a leafy suburb near Los Alamos National Laboratory, where Lee had worked, had prepared to welcome the 60-year-old scientist by throwing a party next door to Lee’s modest ranch-style house and by lining the neighborhood with U.S. flags.

“Now I might put my flag at half-staff,” said Bob Clark, a retired Los Alamos scientist who worked alongside Lee in the top-secret nuclear weapon design division for nearly 20 years. “It’s scary. Who’s in charge here?”

Homemade signs hung on several mailboxes and trees declared “Welcome home, Dr. Lee” and “FBI go home.”

More than two dozen FBI agents searched Lee’s home, cars and garden for 12 hours Thursday in anticipation of his release. Agents using metal detectors in his backyard dug up an old Coors beer can and a rusted piece of metal but took nothing from the home, Hollander said.

Under the judge’s now-blocked release order, Lee would be banned from leaving his home or speaking to outsiders. His wife, Sylvia, was to notify the FBI four hours before leaving the home, and FBI agents placed electronic tracking beepers on the family’s two cars and posted a video surveillance camera in the backyard. Agents planned to place wiretaps on the family telephone Friday but stopped their work when told of the Denver ruling.

During a three-day bail hearing last month, and a follow-up hearing earlier this week, federal prosecutors lost their effort to convince Parker to keep Lee behind bars pending his trial in November. If convicted, he could face life in prison.

Lee was arrested and jailed Dec. 10. He was indicted on 59 felony charges for allegedly moving hundreds of thousands of pages of nuclear weapon design and testing data from a classified computer system onto an unsecured computer network at the Los Alamos lab.

Lee also allegedly put the data on portable computer tapes, seven of which are unaccounted for. Prosecutors have warned that the tapes contain the “crown jewels” of U.S. nuclear weapon designs and thus present a dire threat to national security. Lee’s lawyers say that he destroyed the tapes.

Until recently, Lee was kept in his cell 23 hours a day. He was shackled even during exercise periods, and FBI agents monitored his weekly visits from his wife and children.

Defense lawyers also insist that Lee is a victim of selective prosecution because of his ethnicity. Two former counterintelligence officials have signed sworn affidavits supporting those claims.

The affidavits, released by Lee’s lawyers, said that Lee was targeted absent any credible evidence that Chinese spies had stolen nuclear warhead secrets from Los Alamos.

“I did not believe then and I do not believe now that Dr. Lee engaged in espionage,” Robert Vrooman, the former director of counterintelligence at Los Alamos, said in his sworn declaration.

The second affidavit was submitted by Charles E. Washington, former acting head of counterintelligence at the Energy Department. He said that he knew of other employees who were not prosecuted “for committing offenses that are much more serious than the ‘security infractions’ alleged to have been committed by Dr. Lee.”

He added: “I have concluded that, if Dr. Lee had not been initially targeted because of his race . . . , he may very well have been treated administratively like others who had allegedly mishandled classified information.”