News ReleaseDecember 21, 1999
United States Senate
Senator Orrin Hatch, Chairman
Contact: Jeanne Lopatto, 202/224-5225
Accompanying this statement, we are releasing to the public today a copy of the transcript of Attorney General Janet Reno's June 8, 1999 testimony before a closed session of the Senate Judiciary Committee, at which she discussed the Department's investigative efforts concerning Wen Ho Lee.
JOINT STATEMENT OF SEN. ORRIN HATCH
AND SEN. ROBERT TORRICELLI
RELEASE OF CLOSED HEARING TRANSCRIPT
The release of this transcript follows the presentment on December 10, 1999, of a 59-count indictment against Mr. Lee, alleging the criminal mishandling of classified information concerning our nation's top nuclear secrets. This indictment comes in the wake of criticism of the Department of Justice for its refusal in the summer of 1997 to accept the FBI's recommendation to pursue a court-ordered wiretap of Mr. Lee's home and office.
We are disappointed that this transcript was not made available to the public sooner. Exactly one week after the June 8 hearing, Chairman Hatch and Senator Leahy forwarded to the Attorney General an "expedited transcript" of the hearing, together with the message that "various members of this Committee expressed interest during the course of that hearing in promptly making available to the public an appropriately redacted copy of that transcript." The letter accordingly asked for the Attorney General's "recommendation as to which portions should be redacted in order to protect national security interests and ongoing criminal investigations or cases."
The Department's initial response was unsatisfactory, replete with proposed redactions that sometimes covered an entire page. Only after indications that the Judiciary Committee would consider at an executive session whether to move for the declassification of the transcript, as well as a personal meeting among Chairman Hatch, Senator Leahy, the Attorney General and the FBI Director, did negotiations produce the redacted version of the transcript being released today.
Among the salient pieces of information being released in the attached transcript are the following:
- Discussion of a personal encounter between Wen Ho Lee and a high-ranking official during a conference, and the FBI's assessment that Mr. Lee intentionally failed to report the contact.
- Discussion of Mr. Lee's contact with a scientist at another nuclear laboratory who was under investigation by the FBI.
- Criteria used by the Department of Energy to analyze who may have been responsible for the loss of the W-88 information, focusing on individuals who had: (i) access to the W-88 information; (ii) traveled to the PRC; and (iii) contact with PRC delegations visiting the national laboratories.
- The Justice Department's concern in June of 1999 over the DOE Administrative Inquiry.
- That Mr. Lee sought permission to bring a Chinese national student to Los Alamos Laboratory to work on codes.
UNITED STATESMEMBERS PRESENT:
COMMITTEE ON THE JUDICIARY
JUNE 8, 1999
TOP SECRET HEARING [DECLASSIFIED VERSION]
Hatch, Orrin G. - Utah, ChairmanThe committee met, pursuant to notice, at 10:07 a.m., in Room S-407, Capitol Building, Hon. Orrin G. Hatch, chairman of the committee, presiding.
Grassley, Charles E. - Iowa
Specter, Arlen - Pennsylvania
Kyl, Jon - Arizona
DeWine, Mike - Ohio
Abraham, Spencer - Michigan
Sessions, Jeff - Alabama
Smith, Bob - New Hampshire
Leahy, Patrick J. - Vermont
Feinstein, Dianne (Mrs.) - California
Torricelli, Robert G. - New Jersey
Transcript prepared by:
Sandy Moran, Court Reporter
Miller Reporting Company
The Chairman. Welcome, General Reno. We're happy to have you here, and I have to say that I come here with a very open mind, but many, many questions. It is my honest hope that your answers to these questions, coming as they will under the shield of a classified briefing, will be forthcoming and precise, as I would expect you to be. That's the only way, it seems to me, you'll be able to put to rest my concerns with the allegations that have been made about mismanagement by the Department of Justice in investigating the security breaches at Los Alamos.
Though we are surrounded on all sides by issues that require further factual development, I would like to focus you foremost on the role of the Department in responding to the FBI's request to petition the Court pursuant to FISA for a warrant to enable surveillance of Mr. Wen Ho Lee. Now, information already in the public domain, strongly suggests that had the Department acted promptly and properly two years ago, when urged by the FBI, much of the apparent damage of our national security might have been avoided, but the opportunity is now yours to explain the actions of the Department, and to complete a picture that may well be incomplete at this time.
Now, I also want to ask you about the connection that has drawn by commentators between the Department's puzzling refusal not to proceed with wiretap permission for Mr. Lee, and your personal refusal to appoint an Independent Counsel to investigate fund-raising illegalities involving the Chinese Government. And while I know these decisions were made about the same time, and while I know of the embarrassment invariably caused to any administration by publicity of espionage under its watch, I acknowledge there is no direct evidence of such a connection on the present record.
Still, I hope you can help assure this Committee of not only absence of such a connection, but also of the essence of any conflict of interest or appearance thereof created by the Department's simultaneous refusal to seek an Independent Counsel inquiry into allegations of illegal contributions by the Chinese Government, and the Department's concomitant failure to aggressively pursue a criminal inquiry into the theft of our nuclear secrets by agents of the Chinese Government.
Now, ultimately, I think you have a great opportunity here to clarify the record and to provide this Committee with detailed information about the Department's past actions in this matter. So I hope we can accomplish that here today, and we'll turn now to Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman. And I do welcome the Attorney General here today, and I thank her for the candor of the briefings that she has given me and a number of other members already on this matter, and on both sides of the aisle, and her continuing willingness to make herself availatle to respond personally to the questions and concerns I've had and other members have had is most welcome, escecially about how the Chinese were able to obtain information about a nuclear arsenal.
I think we all agree it's a matter of grave national concern, and I hope that we on the Hill will handle this in the same non-partisan matter that the Attorney General has. We're all aware that questions have been raised about whether the Justice Department made the right decisions at various stages of the investigation to how the Chinese got hold of information about the W-88 nuclear warhead, issues on the Trident D-5 missile. Those of us who used to be prosecutors know that conducting any investigation involves a number of judgment calls along the way. Is there enough probable cause? Is there some other evidence that we could uncover to make the case stronger? Is finding the evidence worth the risk? The question that always has to be asked: if there's evidence out there, if we go after it, does that create other problems for those investigating?
I'm sure we'll hear from the Attorney General on many of these kinds of questions and many more that were asked during the course of the investigation into the theft by the Chinese of the W-88 information and investigation of Wen Ho Lee. I know it's easy to second guess what might happen, especially with hindsight, but I note that this is a matter that has gone on through three administrations, the Reagan Administration, the Bush Administration, now the Clinton Administration. I know a number of the people who were involved in security matters in each of those administrations, people who had a great deal of concern about the security of our country, as anyone would in these positions. And it's obvious that things were kept hidden from us during that time, just as we've able to keep hidden some of our own operations against other countries, including China, and that spying goes on is about as shocking as it was in the movie "Casablanca" to discover gambling went on. We do it and they do it. The difference is we want to catch them and we don't want them to catch us.
Having said that, I've dealt with intelligence matters for 25 years here in the Senate, in Appropriations Committee, Judiciary Committee and Intelligence Committee. This, if all that's been alleged is accurate, this is a very, very serious, very serious, most serious matter, and one that does endanger the security of the country. Frankly though, it endangers it more if we turn this into something that everybody's looking for political gain, whether in what happened during the Reagan Administration, the Bush Administration, or the Clinton Administration. Our security is enhanced if handled in the professional way that I believe the Attorney General has.
Thank you, Mr. Chairman, for inviting me. I appreciate being here.
The Chairman. Well, thank you, Senator Leahy. General, we'll just turn to you to brief us.
Attorney General Reno. Thank you very much, Mr. Chairman, Senator Leahy, Members of the Committee.
Mr. Chairman, I know you're not going to believe me, but I am happy to be here, and appreciative of the opportunity to be able to answer any questions that you have, and to try to respond in the most forthright way possible.
With respect to one of your first questions: was there any connection, there is no connection between the decision with respect to the Independent Counsel and this matter, and I'll be happy to answer any specifics that you may have concerning that.
I want to put it carefully in context because you framed the question as my decision or the decision of the Justice Department.
Senator Leahy. Excuse me, Mr. Chairman. Do we have-- with all the conversations going on up here, I can't even hear the Attorney General? Does this have amplification or is that only for--just for reccrding, okay. Thank you.
Attorney General Reno. Can you hear me now, sir?
Senator Leahy. As long as it's only you speaking, I can, yes.
The Chairman. I can hear you, but it would help if you would speak a little louder.
Attorney General Reno. Okay. First of all, I want to address the issue that you raise, was there any connection? There was no connection. I don't know how to answer it other than that, but to say that I'm happy to answer any specific questions that you have.
With respect to your other preliminary comment that our failure to act promptly caused the loss of the information, is just not true in terms of the context of the issue. Investigators found that the W-88 [word deleted] was probably obtained by the PRC sometime between [word deleted] 1984 and [a few words deleted] 1988. They say that was the outside perimeter. Those were the perimeters of the time that would have been given to the PRC. That is more than almost ten years before we considered it, so, the [word deleted] was not lost because of any failure tc act, and I want to make that clear and put that in context.
To protect the liberty of its people, as well as to address the national security of this country, Congress passed the Foreign Intelligence Surveillance Act, or FISA, in 1979. This act requires a specific showing of probable cause before the government can conduct an electronic surveillance of US citizens for intelligence purposes. The government must demonstrate to a federal judge that there are sufficient acts to show that a particular US person knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which involve or may involve a violation of US criminal law. The reason for this specific showing is to protect the rights of US citizens to be free from unreasonable search as guaranteed in the Fourth Amendment of the US Constitution.
In the investigation of Wen Ho Lee, Main Justice was asked whether electronic surveillance could be authorized by the FBI. Based on the facts reported to us in 1997 -- and I'm focused on those facts that were known at the time, which I will discuss in a minute -- the Department and its office of OIPR, the Department determined that the evidence was insufficient to support a finding of probable cause. I did not personally review the matter at the time, and I have since reviewed it, however, and I agree with the conclusions reached by the career lawyers in the Office of Intelligence Policy Review.
In the several inquiries made into this matter, concern has been raised about the whole process as in all cases where questions are raised concerning how we and the Department of Justice handle the matter. We are reviewing everything in this case to see if there is anything that could be done different. As I have reported, I have appointed Randy Bellows, Senior Litigation Counsel at the US Attorney's Office in the Eastern District of Virginia, to conduct a thorough inquiry of this matter consistent with doing nothing that would interfere with the pending criminal investigation. Mr. Bellows is a senior prosecutor who has much experience in intelligence cases, and I am confident his report will be thorough.
Again, I would point out, not only are these matters classified, but there is a pending criminal investigation, and I want to take care that nothing is said publicly that would interfere with that investigation.
The Department of Justice and the FBI are committed to aggressively combating espionage. During the last seven years, the Department and the FBI's efforts have led to a successful investigation and prosecution of some 25 people for espionage, including Aldrich Ames, Earl Pitts, Harold Nicholson and others. The Department has also worked with other federal agencies to help them improve their counterintelligence efforts. Furthermore, following the Ames' conviction, the intelligence community, including the Department of Justice, set up a system in which various representatives from the counterintelligence agencies are situated in each other's agency. This system has led to closer coordination on these matters than at any time in the past. It is this cooperation which we must continue to build upon to protect our nation's security.
Now I would like to discuss in detail the facts of the case as presented to the Department of Justice in 1997. Much of what we do know now, including the downloading of classified computer information by Wen Ho Lee, was not known to the FBI nor DOJ in 1997 at the time the determination on the FISA request was made.
I think it's important to point out the process by which FISAs are considered. The FBI will bring what's called a letterhead memorandum detailing facts that it knows to the office of Intelligence Policy Review. They will review it. In many instances they will type up a draft as it will be presented to the Court. They will review it and say, "We need more", and the Bureau will go back and get additional information. It's a collaborative process in which there is no rejection of an application, but a suggestion that more is needed. They work together in each case to provide the evidence necessary to establish probable cause.
In this instance, OIPR received a letterhead memorandum from the FBI on June 30, 1997, in which the FBI requested authorization to conduct [word deleted] surveiliance of Wen Ho Lee's office, and [words deleted] surveillance of his home. Now remember, Mr. Lee is a US citizen, a naturalized US citizen. This FISA request was submitted in a FBI letterhead memorandum. It did not include a request to search a computer. In the summer of 1997, there were several meetings regarding this case, as the FBI continued to provide additional information to OIPR. Despite the collaborative efforts of the FBI and OIPR to develop facts sufficient to meet the applicable statutory and constitutional requirements, the OIPR believe that the FISA application was legally insufficient to establish probable cause for the following reasons.
First of all, as it was presented in the letterhead memorandum, one of the key elements was a DOE analysis of who might have been responsible for giving the W-88 [word deleted] to the PRC in that window from 1984 to [word deleted] 1988. The June 1997 LHM stated that the case was predicated on a Department of Energy administrative inquiry, to which an FBI agent had been seconded, that sought first of all to identify three things: the individuals who had access to the W-88 [word deleted], individuals who had traveled to the PRC, and individuals who had contact with PRC delegations visiting the national laboratories. This analysis is part of the DOE administrative inquiry, and that's how it's referred to.
Because it was determined to be the site of the loss of the W-88 information, the LHM focused on Los Alamos, but the DOE inquiry focused both on Los Alamos and the Lawrence Livermore Laboratory. Of the [number deleted] lab employees who visited the PRC between i984 and 1988, [number deleted] had access to the W-88 [word deleted] at Los lilamos. One of the principal OIPR concerns raised at the time, that the FISA requested, was that there was no adequate basis for conducting surveillance of the Lees, as opposed to the other [number deleted] employees who were on the matrix. In other words, there were [number deleted] people who had -- at Los Alamos -- access, had visited the PRC, and had or may have had contact. As stated in the LHM, the other [number deleted] employees, at least two of whom were ethnic Chinese, also had access to the W-88 technology. They had traveled to the PRC during the applicable period of time. We have only recently learned from the DOE report that 4 of the [number deleted] remaining subjects of the matrix are ethnic Chinese.
Now, one of the things that's got to be clear in this whole process is that as these scientists considered classified information, they were also free to travel to the PRC to seminars. It was understood that they were exchanging information of a non-classified nature. PRC scientists came to Los Alamos, engaged in seminars, had discussions, and there was an exchange of information that was understood about scientific and mathematical principles that were non-classified, so you had that ongoing. It is also important to understand that when Wen Ho Lee and his wife went to the PRC in 1986, they reported that. It was not a clandestine trip. When they were there in 1988, even though it was beyond the time of the window that the W-88 [word deleted] was given, they still reported that. It wasn't as if they snuck off to the PRC. This was an open exchange that was ongoing between both the Lees and other scientists from the PRC in Los Alamos.
But they also tried to look at who might have had contact. They concluded, however, that they did not do any investigation with respect to the other [number deleted], and they concluded that with respect to other [number deleted], they could not determine who had contact because the Department of Energy records were inadequate to do so. They focused on Sylvia Lee, simply because a former employee recalled that Sylvia Lee regularly assisted and communicated with visiting PRC delegations. The elimination of other logical suspects, having the same access and opportunity, did not occur. So they took the [number deleted] that fit the matrix, focused on the two, and did nothing to follow up on the others.
Secondly, the Lees traveled to -- the next point after, they apparently took the assumption that the DOE report -- which its conclusion is that it must be the Lees -- part of the DOE report referred to what was already known by the FBI.
[fourteen lines deleted; insert added: From 1982 until 1984, Wen Ho Lee was the subject on an FBI investigation. In 1983, the FBI questioned Wen Ho Lee about his 1982 contact with another U.S. scientist at another DOE nuclear weapons laboratory, who was the subject of an espionage investigation. Lee was interviewed regarding this contact, claiming that he had been interested in discussing the other scientist's alleged passing of unclassified information to a foreign government, in violation of DOE regulations.] The investigation then continued in 1982 and into 1983.
At about this point in the Lee investigation, the FBI believed that Wen Ho Lee had concluded that the other scientist was fired, not for providing classified information to [words deleted] and that Lee's own links to Taiwan and the Taiwanese Embassy in Washington, D.C., were apparently the cause of Lee's [words deleted] The FBI learned from a Los Alamos employee familiar with Wen Ho Lee, that Lee appeared to be a strong Taiwanese supporter, and the FBI also discovered that Lee had [several words deleted]
On November the 9th of 1983 Lee was interviewed by the FBI, [words deleted] In his interview he [made statements] about contacting the scientist, [and] he agreed to assist the FBI in its investigation of this person. It was reported that the FBI did not use Lee as part of this investigation of this other scientist.
On December 20th, 1983 Lee was again interviewed by the FBI. Lee commented that he had been in contact with Taiwanese nuclear researchers since 1977 or '78, and had done consulting work for them in addition to giving them unclassified research papers. Lee indicated that starting about 1980 he would receive requests for papers and reports from the Taiwanese Embassy, which he would then copy and mail to the embassy. Lee explained that he contacted the [words deleted] scientist because Lee thought that this other scientist was in trouble for doing the same thing that Lee had been doing for Taiwan, and thus Lee had become concerned.
On January 24th, 1984 Lee took a polygraph examination, which included questions concerning whether he had ever passed classified information to any foreign government, as well as the nature of his contacts with the scientist and with the Taiwanese Embassy. The polygraph confirmed that he had not passed classified information to any foreign government, and the accuracy of his claims concerning the nature of contacts with the [words deleted] employee and the Taiwanese Embassy. As a result, the FBI closed its investigation of Lee on March 12th, 1984.
Now, if you using that information to suggest that you are an agent of a foreign power, to whit, the PRC, the immediate question is raised, how are you that if you are clearly working with the Taiwanese Government on matters that apparently involve non-classified information?
Now, the next point that was raised, in 1994 there was a visiting PRC delegation at Los Alamos. [four lines deleted; insert added: There is a statement here in which the Attorney General discusses: (i) an instance in which Wen Ho Lee greets a high-ranking official at a conference with a personal encounter, and (ii) the FBI's assessment that Wen Ho Lee intentionally attempted to conceal his relationship with this official.] nothing clandestine about it. [three lines deleted] The FBI concludes from all of this information -- -- and let me give you the final draft as it was -- based on [words deleted] the FBI concluded that [word deleted] knew Lee. Well, there was no question about that. [words deleted] However, the FBI believes that it is significant -- and this is the final draft -- that Lee never mentioned [three lines deleted] Lee's reports thus indicate that he was intentionally covering up his relationship with [word deleted]. We find no evidence in here, other than what the FBI concludes is an inference, that Lee, based on what we knew in 1997, saw and failed to report, as he was supposed to report, any contact with [words deleted]
At the same time as they made contact [five lines deleted]
This is the information I have. I cannot show a transfer of classified information. I cannot show that he was acting for the PRC. I have inferences, but the inference [words deleted] indicates that he is -- if he is an agent of a foreign power, he is an agent [words deleted], and that is the reason why, in review on what I saw at the time, when I reviewed it some two years afterwards, I believe the conclusion of the Office of Investigation -- of Intelligence Policy Review is the correct conclusion. Now, Director Freeh and I have disagreed. He continues to believe that there was probable cause, but he recognizes that our decision was based on a principled analysis of the law, including the facts that I have discussed.
At the same time I have tried to reach out to the FBI and have had an understanding with the head of Division 5, responsible for foreign counterintelligence, that if they have disagreements about any matter, bring it to me. I was briefed in August of '97 on the general matters with respect to the issues involved. At that time, John Lewis, the assistant director, as head of Division 5, came to me -- and I do not recollect him coming to me in the context of this case, but he has indicated that it was this case. He and I had had discussions. He asked me to have a matter reviewed. This was the matter, according to him. No one -- after I referred it for further review, no one came back to me, so I was unaware that it was not resolved to everybody's satisfaction.
Clearly, I want to make sure, and have now instructed, that if there is any disagreement, it be brought to me so that I can finally consider the matter. But I want to stress again that it is not a matter of closing it out. I think there are other steps that could have been taken here, and irdeed, John Lewis suggested to the Director other steps that could be taken to see if we could develop probable cause.
That is the explanation of the whole process, Mr. Chairman, and I'm happy to answer any questions for you to the extent I humanly can.
The Chairman. Well, thank you, General Reno. I'm going to defer to Senator Specter, who was first here on our side. The lineup that I have, of course, we'll go to Senator Leahy next, will be Senator Leahy on his side, Senator Specter, then Senator Feinstein, Senator Sessions, Senator Abraham, Senator DeWine, Senator Kyl, and Senator Grassley. Do I have that in the right order? I think I do.
Well, let's limit ourselves to 10 minutes, and then I'm going to cut you off, because we don't have a light here. So as soon as ten minutes are up, I'm going to cut whoever's going, off, and if you have to ask more questions later, we'll try and give you some time to do it. Senator Specter.
Senator Specter. Thank you very much, Mr. Chairman. Attorney General Reno, I hope there's time to talk in detail about the probable cause issue, but I would like to first perceive some questions which I had asked you about at the Intelligence Committee hearing back on May the 12th, and one of those questions, which you said you didn't have an answer to at that time, was whether the Department of Justice is considering a criminal prosecution against Wen Ho Lee. Is the Department considering that?
Attorney General Reno. I don't have the actual transcript, because we had looked at it, but my recollection is that I told the committee that we were investigating and that we were considering a prosecution. We had made no final determination with respect to it.
Senator Specter. You said that you were expecting a report. What would be the best way for this Committee to pursue that matter with you as a matter of our oversight?
Attorney General Reno. I think the best way to do it would be for us to conclude the review of the report, which we have now, and we now have a tentative pros. memo that includes some further steps to be taken, and I think the best way to do that would be for us to conclude that, make the decision, and then to the extent that we can, without prejudicing the pending matter if it does result in a prosecution, share that information with you.
Senator Specter. When did you anticipate finishing that review?
Attorney General Reno. I would hope that we could do it will all deliberate speed.
Senator Specter. Well, that doesn't tell us a whole lot. Can you give us any better time frame than that?
Attorney General Reno. One of the things that I've learned is never to give time frames because I do not know what will be found in the further investigation that is called for by the pros. memo itself.
Senator Specter. Well, will you let us know in a month from now what the status is, if you can give us some--
Attorney General Reno. I may let you know before a month, but I'll let you know at the earliest possible date consistent with the proper handling of the matter.
Senator Specter. Well, would you give us a report in a month as to where you stand if you haven't--
Attorney General Reno. Yes, I will.
Senator Specter. --given us a report earlier?
Attorney General Reno. I surely will.
Senator Specter. In the Intelligence Committee hearing on the 12th, I also asked you about the circumstances on the plea bargain of Peter 0. Lee, which is a concluded matter. And you again said you'd ask for a report. Are you able to tell us about that at this time?
Attorney General Reno. I did not bring that with me since I understood the chairman was focusing on the issues with respect to the FISA, but I will provide that for the Committee.
Senator Specter. Well, there are a fair number of matters which relate to the overall China issue, and what I would like to see us do is establish a procedure on a number of these matters where plea bargains have been concluded, where they bear on the overall question as to what happened with funding, where at least the allegations have been that individuals, Johnny Chung and Charlie Trie and John Huang, have entered into plea bargains, where I think this Committee has an appropriate oversight function. How would you suggest we proceed?
Attorney General Reno. I think that Senator Leahy and the Chairman and I should sit down and cry to devise a means that will permit us to pursue the ends that we want in terms of cooperating witnesses, while at the same time giving you every information that can be consistent with good oversight, but that does not harm the pending investigation.
Senator Snecter. Well, are you suggesting that that's not a matter for Committee review, but only for Chairman and the ranking member?
Attorney General Reno. Well, if you want to all sit down, however the Chairman wants to do it, but I have found in the past that it's helpful to sit down and try to work out something as we have done on a number of occasions, and I'm happy to work in whatever fashion the Committee wants. 1 will point out to you, I think there are questions of 6(e) and other issues that we're going to have to address, and make sure that-- we don't do anything -- that interferes with the pursuit of the promised cooperation.
Senator Specter. Well, are all those matters now concluded, the plea bargain of Peter Lee, for example?
Attorney General Reno. My understanding is that it is concluded.
Senator Specter. And the plea bargain as to Johnny Chung?
Attorney General Reno. I will get you the details. Rather than speculate on it, I want to get you the details of it. When you say "concluded", I want to present the plea to you and whatever I can that's not 6(e) in the most appropriate manner possible.
Senator Specter. Attorney General Reno, when you appeared before the Intelligence Committee on May 19th, I had asked you about the provisions of Section 1802 of the Foreign Intelligence Surveillance Act, which authorizes the Attorney General alone on certification, to issue a search warrant, contrasted with the provisions of Section 1804, where there is court approval in the language of the statute, as I pointed out to you at that time, called for the approval of the Attorney General. Have you had an opportunity to study those provisions since the May 19th hearing to discuss those differences as they apply to what would have to be produced by the FBI to get a search warrant?
Attorney General Reno. I have not addressed it any more than to review the matter. I've not prepared any memorandum.
Senator Specter. Well, would you take a look at that? The thrust of the statute, which I had pointed out at the prior occasion, has a substantially higher standard where the President, through the Attorney General, may authorize electronic surveillance without a court order to acquire foreign intelligence information for periods up to one year, if the Attorney General certifies in writing under oath, which is a very different standard than that articulated in Section 1804. For 1804, as applications for court order is, quote, "Each application shall require the approval of the Attorney General based on his finding that it satisfies the criteria requirements", and then they set forth criteria and requirements just as they were set forth in 1802. And the thrust of my point here is that, when you're seeking court approval, as you were here on what the FBI wanted, there is a different procedure than if it requires a certification by the Attorney General under oath. And when you have a chance to look at it, I'd like to talk to you further, perhaps informally, as to whether that doesn't import a difference in the totality of circumstances on the issue of probable cause.
Attorney General Reno. Since I did not address this, let me ask Ms. Townsend, who heads the Office of Intelligence Policy Review, to address it for you in this context, and then I will--
Senator Specter. No, I don't want to talk my time with you on her response. I can talk to her about it later.
Attorney General Reno. I'm happy to stay as long as you want me to.
Senator Specter. Okay. I think hell freezes over is the standard that implies. I'm up to 8 minutes, Mr. Chairman.
The Chairman. You're about 9-1/2 according to our count. Do you have anything else you want to ask?
Senator Specter. Yes, I have none other question.
Attorney General Reno. I just think-- we're here to answer any questions we can. I came prepared on the issue of what I-- the particular issue with respect to the FISA application, and I'm happy to answer anything or have Ms. Townsend provide you with whatever information we can.
Senator Specter. To not prolong my round, I'll just raise the issue which Senator DeWine may want to pursue, because I pursued it after he started it at the Intelligence Committee hearing, and that is his raising the question of the so-called balancing test, where you are considering a matter as serious as espionage with the W-88 involved, contrasted with a lesser criminal charge. And Senator DeWine, from his prosecutor days, as I from mine, are well aware of the judicial judgments which do involve the severity of the offense and seriousness of the matter on the so-called balancing test, and Senator Dewine had raised it before, and since I'm not out of time, he may want to pursue it, or if he doesn't, I will on the second round.
The Chairman. All right, Senator. Senator Leahy.
Senator Specter. Thank you.
Senator Leahy. Mike, I don't know if you gave marching orders from this end of the table or not, but let--
Senator Specter. I took mine from him.
Senator Leahy. Attorney General, your suggestion of a procedure to follow, as going from the Chairman to myself, and then trying to figure out we disseminate, and some of this information is consistent with the procedures we've been following the 25 years I've been here on a number of committees, a number of sensitive matters, and I absolutely agree with you.
Over the past five years only one application for electronic surveillance has been denied. That occurred in 1997, the same year as the FBI presented its initial application for Wen Ho Lee, according to the Department's April 1998 report on the number of FISA applications. In that single case, a FISA Court was satisfied as to probable cause, but declined to approve the application for other reasons. Did the FISA's Court denial of that one application make the Department more cautious or in any way influence your application in this other matter?
Attorney General Reno. What we have tried to do is do it right, and I must admit to some frustration in the sense that we've done it right, and we have, on a regular basis, had the orders approved, and have been able to make cases stick such as Ames and Nicholson. Our whole thought, and everything that we've tried to do with the Office of Intelligence Policy Review, and in the Attorney General's Office, and in my decision, is take it, try to build probable cause, work together with the FBI to get it done, to find additional facts, that if we don't initially have probable cause, we get it, and we present it to the Court.
There's something instructive in the legislative history of the FISA act. It says, "While few orders for law enforcement electronic surveillances have been denied, the Cormnittee believes that the reason is the care and the scrutiny which applications receive before they ever go to a judge. The institutional response to an outside approval authority then is to make every effort that only good applications should go to the approval authority."
Senator Leahy. Did that one denial that year though, did that have any influence on the decisions on this case?
Attorney General Reno. No.
Senator Leahy. How often does OIPR--
Attorney General Reno. Actually--
Senator Leahy. I'm sorry.
Attorney General Reno. Actually, I can't really answer that question. I have never heard that it had any, but in terms of the decision made at the time, I can't say one way or the other.
Senator Leahy. I see. OIPR, how often does it send back to the FBI a request for electronic surveillance for insufficient showing of probable cause?
Attorney General Reno. Again, this goes to the point that I was talking about, in that it is a collegial relationship where they don't send it back. There is continuing conversation and dialog, "Try this. What about this?"
Senator Leahy. So what you might have is a case where the application is made, but there's not approval; there's not sending back but there's not approval; it becomes an ongoing thing?
Attorney General Reno. That's correct.
Senatcr Leahy. Is it unusual-- if this is ongoing without approval, is it unusual for the FBI to go to the Attorney General, and say, "Look, we're not getting anywhere with OIPR", in effect, overruling them?
Attorney General Reno. Mr. Lewis came to me and asked-- said that they were having trouble with the FISA. That's when I asked for further review of it. But just to give you an example, Mr. Lewis, after the initial conclusion with respect to the FISA, pointed out to Director Freeh: "Up to this point in our investigation, we've been focused on obtaining justification for electronic surveillance, while at the same time limiting ourselves to not alerting investigative steps so as not to let the subjects know they're under suspicion. Since our initial electronic surveillance application has been rejected, we now intend to pursue a more aggressive but risky course, which will include interviews of co-workers, former supervisors and associates. Such steps could produce sufficient electronic surveillance justification, while at the same time uncovering information about the subjects that will be needed for their eventual interrogation."
We also discover after the -- now as opposed to then, that they had the results of [line deleted] that might have led to some additional information.
Senator Leahy. Let me follow that a minute. The FBI, as I understand it, they've searched his residence, Lee's residence. Now, they've searched his office, gone through his computer. They have all the other information, so they've made some pretty significant searches of him, his background.. He's certainly been under focus. The fact his name's been in the press, that there are people out there with information, you would assume they're probably coming forward, it's ongoing and so on. But there's not been an arrest, there's not been an indictment. Does that say that-- does that seem to substantiate the finding in 1997 of no probable cause? I mean, we're dealing after the fact, but we're dealing with all this. He's been in so much of the-- we've had the searches, we've done all of the other things, and we've had so much in the public eye that people-- at least it's been my experience in these kind of cases, when somebody's been that much in the public eye, all of a sudden somebody comes and say, "Hey, what about this?" But with all of that, there's been no indictment, no arrest. Does that mean the first time around you were right?
Attorney General Reno. Not necessarily, sir, because I've got to show that he was a person who knowingly-- to get the FISA application, knowingly engages in clandestine intelligence-gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States. That's a lesser burden than the indictment of someone.
Senator Leahy. Well, you had-- the FBI in the earlier one tried to--
Attorney General Reno. Though I still don't think we had probable cause for that.
Senator Leahy. They tried to strengthen the probable cause showing [words deleted] phone and financial records, but none of those things turned up anything incriminating; is that correct?
Attorney General Reno. That is correct, and, again, if you look at the original DOE report, there are perhaps other leads that could have been followed. There are other people that have a motivation, perhaps a greater motivation than Wen Ho Lee, and there-- it's just so important that we continue to do this in a collegial way, trying to build probable cause for these situations, and I think we've been able to in the past. I think this case, for whatever reason--
Senator Leahy. Well, I look at things like this, a [words deleted], the records-- excuse me-- and all, keeps turning up a case which does not reach the level of probable cause, or at least that determination was made. Does this tell us in retrospect that perhaps the prosecutors in the Department should play a more aggressive or leadership role in counterintelligence investigation than they do now? It appears to me that basically it's a case of the FBI looked into this and nailed it up and gone forward, and at some point if Justice says, "Okay, you've got enough. Let's go with it." But should this be more of a in-tandem operation with Justice getting more aggressively involved in counterintelligence investigations?
Attorney General Reno. I think when you're involved, you've got to be careful to make sure that the line is appropriately drawn in terms of those responsible for a criminal investigation and those responsible for the foreign counterintelligence investigation I think the FBI would tell you now that they feel very comfortable with the process as it exists and with the personnel and the experienced lawyers in the office. And that's one of the reasons I-- whether now or some other time, Mr. Chairman-- I would think it important for you to hear from Ms. Townsend.
Senator Leahy. That's not really my question. I'm saying I understand the criminal and I understand the line, but you do have Justice Department officials who get involved in counterintelligence investigations. Are they aggressive enough?
Attorney General Reno. I think they're aggressive enough. In this instance we could have-- one of the problems is, just to give you an example, we did not see the DOE report, as I understand it, and if we had, it would probably be less basis for probable cause [ten lines deleted]
If we had seen it, I'm not sure that it would have produced any additional information because at Lawrence Livermore, which the report focused on, [fifteen lines deleted]
If we had gone further, I'm not sure that we would have built any stronger case for probable cause.
Senator Leahy. Thank you, Attorney General. I will have further questions, but I'll probably submit them for the record. Thank you.
The Chairman. Thank you, Senator. We'll go to Senator Sessions, and then next will be Senator Feinstein. Oh, as I understand it, General, you need to take a break at this time.
Attorney General Reno. I'm doing fine. Oh, I'm sorry. I didn't know.
The Chairman. How much time will you need, do you know?
Ms. Townsend. Ten minutes.
The Chairman. Okay. Wel1, we're recess for ten minutes.
Attorney General Reno. Have you explained? I mean, it's an emergency FISA, so that's--
The Chairman. No, I didn' t explain it. I wasn't sure myself.
Attorney General Reno. So my apologies to you.
The Chairman. We'll just recess for about 10 minutes.
[10 minute recess.]
The Chairman. Okay. Senator Sessions, you're going to have 10 minutes. I'm going to interrupt right at 10 minutes, so that we can-- so far everybody's lived within it.
Senator Sessions. Madame Attorney General, with regard to your procedure, when the first denial of the request occurred, who was the attorney that made that denial, and was that within their responsibility? Was that the highest official in the section?
Attorney General Reno. My understanding is that it was reviewed by-- that Bill Ryan made the initial decision. It was reviewed by Allan Kornblum and then by Gerald Schroeder.
Ms. Townsend. Dave Ryan.
Attorney General Reno. Dave Ryan.
Senator Sessions. Who was-- was that the chief of the section?
Attorney General Reno. He was the acting director of the section.
Ms. Townsend. Gerald Schroeder was the acting counsel at the time who was the head of the section.
Senator Sessions. All right. Well, let's go back then. Let me get that straight. Who was the document, letterhead memorandum, brought and given to for an opinion?
Attorney General Reno. Allan Kornblum.
Senator Sessions. And he's an attorney?
Attorney General Reno. He is an attorney. He assigned it to Dave Ryan, the line lawyer, who reviewed it.
Senator Sessions. All right. And when Ryan concluded it was insufficient?
Attorney General Reno. Mr. Kornblum apparently then sat down with the agent and went over with the agent steps that could be taken, other issues, and the agent checked further that-- they had done one draft. There was apparently a second draft done, but we don't know what--
Senator Sessions. No, no, not going on to the second draft. Did Mr. Kornblum meet with the agent or did Mr. Ryan meet with the agent?
Attorney General Reno. Ms. Townsend advises me that Ryan, Kcrnblum and Schroeder all met with the agent.
Senator Sessions. And that was at one meeting?
Attorney General Reno. I think there were several meetings during-- from June 30 to August.
Senator Sessicns. Have you ascertained that the FBI conveyed to these attorneys the seriousness of the security breach?
Attorney General Reno. I don't think the FBI had to convey to the attorneys the seriousness of it. I think any time you're faced with facts like this, it's extremely serious.
Senator Sessions. So you're satisfied that there could have been no misunderstanding on behalf of your attorneys that this was a security breach of monumental proportions?
Attorney General Reno. I am satisfied.
Senator Sessions. And---
Attorney General Reno. Just to point out to you, Mr. Lewis reported to his director, Mr. Freeh. The matter was assigned to Mr. Ryan, who was believed to be the best attorney for these matters at OIPR. Over the next few weeks three drafts of the application were produced, each incorporating more information and justification. The last version was personally reviewed by Mr. Schroeder himself, the acting counsel of OIPR. It goes on to say: "Mr. Kornblum met with our people to explain his decision in detail and to answer questions. He had apparently made a real effort to find a way for the application to go forward."
Senator Sessions. Is it your view, along with the DeWine question and Senator Specter had suggested, that probable cause is an absolutely static thing, and that probable cause to search a bank president's home for potential documents to prove embezzlement meets the-- has the same legal analysis, and that there's no other factors that can enter into it, than it would for a terrorist who may be believed to be harboring biological weapons in their home?
Attorney General Reno. I think there are separate issues between the bank president and the criminal investigation with the FISA situation.
Senator Sessions. Do you consider the danger that a bank president may get away with embezzlement, do you factor that in when you consider the danger to a entire city that might occur from a terrorist possessing a biological weapon and prepared to use it?
Attorney General Reno. This is the way I approach it. If I had 20 747s lined up, and we had information that a bomb was on one of them, and the only way I could f ind out where the bomb was, I would go to to every length that I could to find which plane had it, possibly consistent with the law, again, depending on whether it was a US plane and what the national security issues were.
In a situation like this, where the release of the information had occurred almost 10 years before, there are other considerations involved as well.
Senator Sessions. Well, he remains our top-- one of our top, if not the top, laboratory inthe wcrld, and this person remained an employee of it; isn't that true?
Attorney General Reno. I made no decision with respect to the employment. You would have to check with Diractor Freeh, because 1 think he had conversations with the Department of Energy in that regard.
Senator Sessions. Now, back to my-- so after this declination or refusal to sign off on the warrant, Mr. Lewis came to you?
Attorney General Reno. There was a briefing on Departmeny of Energy matters generally, and Mr. Lewis recalls that at at that meeting-- I do not recall him mentioning it in the context of this case; I do recall the conversation with Mr. Lewis in which he talked about having trouble with a FISA, and I took steps to have it reviewed.
Senator sessions. Trouble with the FISA? I mean that's a vague term. What does that-- exactly what do you recall he said?
Attorney General Reno. He said it was-- he was not very specific.
Senator Sessions. Well, as best you recall, what did he say?
Attorney General Reno. I do not recall the conversation other than generally what Mr. Lewis recalls. I don't recall it in the context of the Wen Ho Lee matter or the Department of Energy lab security issues. I just recall it in the sense of him saying to me, "I have a problem with a FISA." And we then took steps to have someone look at it.
Senator Sessions. And you understood that to be about a specific case?
Attorney General Reno. Each FISA is about a specific case.
Senator Sessions. And so somehow somebody was told to follow up on the Wen Ho Lee case?
Attorney General Reno. That's correct.
Senator Sessions. Now, did your staff convey to you that they had once again denied this matter?
Attorney General Reno. No, they had not.
Senator Sessions. And so at no time did your staff convey to you that the FBI, the chief of their section, and presumably the director, had-- was very desperately anxious to obtain a [word deleted] on Mr. Wen Ho Lee, and they had said no, even though there was a fairly c1ose call of probable cause?
Attorney General Reno. That is correct.
Senator Sessions. Do you feel like your staff failed you in that regard?
Attorney General Reno. I would like to know these things, so that I can sit down with the Director and not have any question about the exploration of his ideas.
Senator Sessions. Well, I know you've complained that the Director didn't come to you personally. Do you--
Attorney General Reno. I did not- -
Senator Sessions. --he might have assumed--
Attorney General Reno. I have not complained about that. I hold myself responsible for it. I complain about myself.
Senator Sessions. Well, you suggested that--
Attorney General Reno. I just wished I had had in place a process where the Director and I could sit down and fully discuss this. That's not a complaint.
Senator Sessions. Well, FBI Directors are not that way too well, and I can imagine your frustration sometimes. However, let me follow it up. Isn't it possible the FBI Director assumed your staff was keeping you involved, informed?
Attorney General Reno. That's precisely why I have developed a procedure now so that I am told, regardless, so that if the Director doesn't come to me, I can go to him and fully discuss it.
Senator Sessions. It seems to me sometime prosecutors think they're investigators, and they may think, well, there's somebody else of some other way this ought to be done, but shouldn't they, when evaluating the case, not factor in so much whether someone else may also have been involved, but whether or not there's probable cause as to this person for whom the warrant is requested?
Attorney General Reno. Yes. But to do that, if there is somebody else who has greater motivation, or somebody else who might be as likely, the exclusion of that person enhances the probable cause of the other.
Senator Sessions. Not if you didn't know about the other one.
Attorney General Reno. If you knew about the other.
Senator Sessions. Well, I understood you didn't know about the other one.
The Chairman. Senator, your time's up. We'll turn to Senator Feinstein.
Senator Feinstein. Thanks, Mr. Chairman.
Attorney General Reno. My staff -- Mr. Chairman, may I--
The Chairman. Sure, you can always answer.
Attorney General Reno. Just so you know, there were [number deleted] people identified in the DOE analysis. They focused on 2, not the other [number deleted]. And they did not make any investigation with respect to the other [number deleted].
Now, somebody, my staff suggested I may have left you with the impression that Lewis specifically discussed Lee with me. From what I have heard, he raised the context, not of Lee, but just generally of a FISA application. I don't have any recollection of it.
The Chairman. Senator Feinstein.
Senator Feinstein. Madame Attorney General, welcome. The thrust of my questions isn't who did what to who when. It's really the culture and discipline under which these drafts are run, which I severely, seriously question.
Let me begin with this: it's my understanding that Mr. Lee signed a so-called security waiver. Is that correct?
Attorney General Reno. That is my understanding.
Senator Feinstein. Do you know when he signed it?
Attorney General Reno. No, I do not.
Senator Feinstein. Would it be correct to assume he signed it when he assumed that employment or received that high security classification?
Attorney General Reno. Senator, just so you know, since these issues have been resolved through search warrants and other issues with respect to the pending investigation, I have not gone back and looked at that. Rather, what I have done is set up a working group to consider all of these FISA issues, one of them being computer access and the waiver process, and that is being considered in a very thorough manner. I'll be happy to make that report available to you.
Senator Feinstein. Thank you very much. He did sign a security waiver, which essentially mean what?
Attorney General Reno. Again, I have not focused on that issue other than to say this is going to be the subject of a workinq group, to come up with just what the process of the Department should be, so that there will be no confusion over computers and access to computers, but I would stress again, the FISA application that is at issue, did not seek authority to search the computer.
Senator Feinstein. Well, if he signed a security waiver, does he not then fall outside of a probable cause requirement?
Attorney General Reno. Yes, I think he should.
Senator Feinstein. So he just could have been wiretapped or electronically surveilled or whatever it took?
Attorney General Reno. With respect to his computer.
Senator Feinstein. Without a probable cause analysis.
Attorney General Reno. But the FBI was unaware of the waiver at the time.
Senator Feinstein. Okay. How many of the [number deleted] people have signed security waivers?
Attorney General Reno. I do not know.
Senator Sessions. To clarify something, did she say that the waiver was only for the computer, not for a wiretap on the phone?
Senator Feinstein. No, that's for everything.
Attorney General Reno. No. That's for the computer.
Senator Feinstein. Just the computer?
Attorney General Reno. Yes.
Senator Feinstein. Is there any kind of a waiver an individual can sign with respect to their prior performance?
Attorney General Reno. I have not investigated that.
Senator Feinstein. It's my understanding that the university fosters a culture of interaction, and a kind of academic discipline that's sort of based on a publish or perish ethic, if you will, and that employees are encouraged to participate in symposium and the interchange of materials and that kind of thing.
1 have come to question whether that is appropriate, an appropriate framework for America's essentially deepest and darkest nuclear secrets. Does Justice have a view on that?
Attorney General Reno. Director Freeh was-- he was very concerned about this. He spent a great deal of time, talked to me about it on a regular occasion, about the security provisions that existed at the laboratory. We-- in one of our regular briefings with Sandy Berger, he wasn't available, but Bill Esposito and I briefed Berger. There was a great deal of attention paid to this. As I get into it now and find even greater degree of exchange of information, just of hundreds of scientists and students coming to Los Alamos and many people traveling to Beijing and other universities in China, and they would sit down and talk about how they solve a mathematical problem, because it was math and it wasn't classified, but where do you draw the line? If that mathematical discussion produces a formula that implicates the classified nature of it, I don't know how they draw the line.
Senator Feinstein. Well, I think that's exactly correct. I had a discussion with the president of the University of California and some of the regents, which I found kind of appalling, because they were very upset that I challenged thi-s, and they said in response to my challenges, "Well, if you don't have this kind of free flow and openness in an academic setting, you're not going to be able to attract a good quality of people because of the salary levels." And I have become very much of the view that if you have this kind of academic culture and academic discipline, that it really does a great disservice to our nuclear secrets. And I just was curious. Is Justice going to make any kind of a recommendation about this.
Attorney General Reno. We have had conversations, and what we're trying to do is to, through this review team led by Mr. Bellows, we're trying to see just what was done, what caused-- what we could have done better, and work with Energy and others to share that information, as we develop information that may impact on what Energy should be doing.
Senator Feinstein. Is it appropriate for me to ask that Justice presents us with an evaluation as to whether these labs are best run under the auspices of the university?
Attorney General Reno. I can't suggest to you that I would be expert, or that we would have the expertise. May I do this: may I discuss it with Director Freeh and see what he thinks will get the exact language that you would like, and see whether we really feel as if it would be-- if we would have the expertise in terms of the university connection.
Senator Feinstein. Appreciate that. Let me just ask about the probable cause issue. If an individual is employed in one of these labs, and they know that there has to be probable cause for any kind of really intensive scrutiny of their work? Why shouldn't they be required to, when they receive that security classification, to have some special category, whereby on a suspicion, the wiretap could be put in plan?
Attorney General Reno. Let me review that for you. I know what the answer would be from the lab side, is that they'd never get anybody, but let me review that and just see what would be appropriate.
Senator Feinstein Because I challenge that they would never get anybody. It seems to me that when you're working on government secrets, the government has a right to insure at all times that those secrets are secret, and that you don't have the right to use your judgment as to whom you tell what to necessarily.
Attorney General Reno. We have the Office of Legal Counsel reviewing it. Let us present that to you. There certainly is a great deal of talking back and forth.
Senator Feinstein. Well, see, this is what-- could I ask you one other question? Has anybody analyzed as to whether what was put on the internet in fact, as a break in classification?
Attorney General Reno. I think that has been-- we'll have to get that question answered for you.
Senator Feinstein. Thank you. Thanks, Mr. Chairman.
Attorney General Reno. Mr. Chairman, can I take a minute of my time?
The Chairman. Sure, of course.
Attorney General Reno. For Senator Specter, just so we-- I wanted the exact language. You keep citing 1802, and it confuses me, because as I understand 1802, the electronic surveillance is solely directed at the acquisition of contents of communications transmitted by means of communications used exclusively by-- between or among foreign powers, and it does not relate to US citizens.
Senator Specter. Well, that is part of it, but the other part of it alleged a very sharp distinction between what the Attorney General does in terms of her certifying and writing under--
Attorney General Reno. But it relates just-- I just don't think it applied here. I just wanted to raise that with you. We'll come back to you. I'll spend as long as is necessary to try to get an answer. I just wanted to--
Senator Specter. I'm not saying that it does apply. What I am saying is that if you contrast it with 1804, which talks about each application shall requires the approval of the Attorney General.
The question to you, as I asked you before again today, was whether that doesn't provide for a higher standard under 1802 than 1804?
Attorney General Reno. I think 1802 is a lesser standard because it's between two foreign powers, and my sense is that it's a lesser standard.
Senator Specter. Well, why require a certification or why require the oath of the Attorney General, and perhaps we would simply get the approval of the Attorney General. It seems to me the statutory scheme is a lot tougher on 1802 on its face.
Attorney General Reno. Well, I don't know. I've got to make a finding that under 1804, that it satisfies the requirement and-- criteria and requirement of such application as set forth in the chapter, and it's fairly detailed.
Senator Specter. Oh, it is detailed, no doubt about that, but it only requires your approval; it doesn't require your oath. It doesn't require the language it certifies is a lot stronger than the language it approves.
Attorney General Reno. Whether it requires my oath or my finding, the consequences are that it stops with me and I'm responsible for it.
Senator Specter. Oh, I only agree with that. The statute has two provisions, and one says you have to take an oath. You are the Attorney General, but to require the oath of an Attorney General, it seems to me to be an unusual requirement, and also the language it certifies is different from the proof.
Attorney General Reno. I think you all-- I mean it's congressional history, but my understanding of it is, and we'll have to check it out, is that that is a warrantless search, and there has to be a higher degree of certification. I don't think the findings are any different, and I suspect that that is why Congress concluded the distinction. But will that look back through the legislative history and see?
The Chairman. Let me go to Senator De Wine at this point.
Senator DeWine. Thank you, Mr. Chairman. I think I will take my time and allow Ms. Townsend to respond. She wanted to respond to Senator Specter.
Ms. Townsend. Thank you, Senator. Senators, as you are well aware, the certification is required because those-- under 1802 the certifications are for warrantless-- that is, applications that don't go to court, they are granted solely on the Attorney General's certification that those are either-- those warrants are either to gain technical intelligence, or they're between and among foreign powers, those communications.
Under 1804, it's not merely the Attorney General's approval; it is the Attorney General's approval based on her finding that the application is sufficient and meets the requirements of the statute. That is, all of those elements of probable cause are sufficiently established in the application. So that under 1804, before each and every application is filed with the Court for the Court's consideration and potential approval, the Attorney General must make a finding that the statute-- the requirements of the statute are met.
And 1804, frankly, they whole intent of the scheme under 1804 is that it goes to court because it will-- these applications are potentially involving US persons, where under 1802, where those packages do not go before a federal judge, they do not involve US persons.
There are simply two different procedures based on who's going to be the target of the coverage.
Attorney General Reno. And the distinction is that I don't have to go to Court to get a warrant or an order for the search involving two foreign powers.
Senator Specter. I'll come back to this. I don't want to impose on Senator DeWine's time.
Senator DeWine. Ms. Townsend, do you have anything else you want to tell us?
Ms. Townsend. No, sir.
Senator DeWine. Thank you. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator DeWine. We'll go to Senator Torricelli, I guess. Well, the--
Senator Torricelli. That's right. I forgot.
Senator Kyl. Thank you. General, I have three lines of inquiry. The first has to do with a memo to Director Freeh of 8-14-97, by John Lewis, which I think you cited before, indicating that Mr. Ryan was believed to be one of the top-- was the best attorney for these matters at OIPR. And the second, the next paragraph of that letter to the director provided the reasons why, in Mr. Lewis's view, the application could not be granted, and I'll just quote it to you and then ask you the question.
"On 8-12-97 Mr. Allan Kornblum of OIPR advised that he could not send our application forward for those reasons. We had not shown that subjects were the ones who passed the W-88 [word deleted] to the PRC, and we had little to show that they were presently engaged in clandestine intelligence activities." And then he goes on to conclude the memo.
If that in fact is an accurate representation of the two reasons, that would be too high a standard for the denial of the application, would it not?
Attorney General Reno. As I understand it, he's talking about probable cause to show these matters, but I have concluded, based on my review of what was known at the time, that it was insufficient. I don't think what we call the currency issue, which goes to the timeliness of it, I think you can infer from long ago situations ongoing--
Senator Kyl. It's not dispositiive. It doesn't have to be presently.
Attorney General Reno. That's correct.
Senator Kyl. Right. But would it not also be true that it would be too high a standard for you to-- for the FBI to have had to demonstrate that the subjects were the ones who passed the W-88 [word deleted] In other words, he says two reasons. One, "We had not shown that subjects were the ones who passed the W-88 [word deleted] to the PRC. Now, if that in fact is an accurate representation, that would be too high a standard, would it not?
Attorney General Reno. If we had to conclusively prove it would.
Senator Kyl. So would it be your view that this is a summary that probably overstates the Justice Department's requirements for the FBI?
Attorrey General Reno. That is correct.
Senator Kyl. Okay. Is there a difference between the probable cause, for an investigation for counterintelligence informationand for prosecution of a case? And I specifically refer you to the primary purpose of the FISA process itself.
Attcrney General Reno. Yes. The FISA process involves any person who-- in connection with a US citizen-- any person who knowingly engages in clandestine intelligence-gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of criminal statutes of a United States citizen, different standard than a criminal investigation, different issues with respect to which the probable cause applies.
Senator Kyl. Is it true that probable cause is perhaps more subjective than objective, and it is a standard that differs depending upon a lot of different circumstances? For example, it is a little different, whether you're seeking information related to counterintelligence or you're seeking information for an indictment? That would be one situation in which there would be a slightly different-- a somewhat different standard for probable cause; is that correct?
Attorney General Reno. Let me give you the example again. If I had 20 747s lined up, a bomb on one, and all were about to take off in the next hours, I would struggle in every way I could, because I was interested in saving human lives. If I have a situation where the information has already-- I'm trying to find out who did it and trying to find out whether they're continuing to do it and whether they're a threat, that might not be a matter of an hour, that might be a matter of a day, two days, something like that, to gain greater probable cause so that I could perfect the probable cause and not expose it to any danger.
Senator Kyl. I'm not trying to prove anything here. I'm simply trying to understand it, make sure that we all do understand the way you look at these cases.
Attorney General Reno. Here would be the way, as I've tried to say in this one. The espionage at issue that created the whole problem, occurred sometime between 1984 and 1988. It was done, the W-88 was gone. There was still a primary purpose for foreign and counterintelligence gathering-- gathering foreign counterintelligence information, to find out whether he was still engaged in espionage and what type of material he might be disseminating to the PRC or others. At the same time, if, as in Ames and in Nicholson, I got information based on this FISA, and when the case --and it resulted in a prosecution-- because you can use information gathered in the FISA as long as the FISA's primary purpose is the collection of foreign counterintelligence-- you can still use that information in a criminal prcsacution. After the fact, recognizing that I had not reviewed it, but the way I would analyze it is: do I have enough to be sure that I'm going to be able to sustain probable cause? Again, I balance it.
Senator Kyl. Right. But you would be willing to take a little more chance in the case of the 747s that you mentioned, for example, than you would in a less serious case or a case with less timeliness involved?
Attorney General Reno. My chance that I take if I illegally search somebody, if I save 300 lives on a 747, I'd take it.
Senator Kyl. Yes. So there's an element of the chance you're willing to take depending upon the severity of the situation.
Attorney General Reno. That's correct.
Senator Kyl. Right. Now, would it also depend, to some extent, on the type of investigation that you are about to commence? For example, if you are seeking to gain information about what's in his government-- excuse me. I think the witness is having a hard time hearing.
If you're seeking to gain access to his government computer, would that be a little different than if you're seeking to wiretap his home telephone, and would that be different than if you were seeking to put a microphone inside his home? In other words, I've given you three cases, each more intrusive than the other. Would that also bear on the balancing in determining the--
Attorney General Reno. As we have determined-- and again, we're reviewing it to see the process of access to computers-- with a government computer, either with the banner advising that they have no expectation of privacy, or the waiver, we ought to be able to have access to the computer. That did not arise in this situation. So there would be a different issue if you had the banner or--
Senator Kyl. I understand that. But assume that you don't have a banner, but it is generally recognized in-- one of the problems in this case is that neither the head of security, Mr. Craig for DOE, nor the FBI, understood that the waiver existed. Craig should have known. The FBI should have pursued it before. Director Freeh has testified to that effect.
But let me just ask you again this question in the more hypothetical. One case is to gain access to his government computer. Another is to wiretap. And third is to microphone his home. The standard of probable cause of those three cases would be a little different, would it not?
Attorney General Reno. I would have to look at it in terms of the hypothetical, but without the waiver and without the banner, I'm not sure that it would be.
Senator Kyl. Really?
Attorney General Reno. I would have to look at it carefully.
Senator Kyl. Well, I understand, but just-- I mean, you've been through enough of these to know what kind of test you apply, and I'm just wondering if, in addition to the severity of the case and the timeliness of the case, another factor in this balancing equation is the degree of intrusion that you are seeking or does it not matter?
Attorney General Reno. The degree of intrusion that you're seeking matters as between a mail cover, where the standard is lower, and a FISA where it's greater. So, I mean, it depends on the degree of intrusion, but the issue is the expectation of privacy. And I, frankly, have not looked at the situation because we didn't--
Senator Kyl. Well, the expectation of privacy in microphoning his home, would be a lot higher than seeking access to his government computer, [words deleted]
Attorney General Reno. That's what I need to look at, because I have not considered it in the context of whether there is a lower expectation of privacy with respect to a government computer that is not bannered or is not-- for which there is not a waiver. I don't want to answer the question and give you--
Senator Kyl. Well, what we saw here was the most intrusive in any case, so you're looking at the highest of standards. And I'm just trying to understand again what the balancing is all about.
You would agree that this was a close case. I mean, the Director fell on one side of the line, you fell on the other side of the line. Reasonable people can differ.
Attorney General Reno. I think it's-- I mean, Director Freeh is one of the finest people I know and one of the most reasonable people I know, and the fact that we can differ, reasonable people can differ.
1 don't think it's close on the facts. I think it's close in that there could be additional information that we might have been able to develop. I don't know whether we could have.
Senator Kyl. Yes. I guess what I was leading to is this-- and many people have asked this question. Why, if you felt that it was close enough-- and i gather your answer is "I didn't think it was close enough"-- but if it was close enough, why not send it to the judge? I mean, the judge is the one that ultimately makes the decision of yes or no. I understand that your reputation and the Department's reputation is always on the line here, and you never want to present a case where you do get turned down, because one reason you don't get turned down is that the judge always knows that you have a good case. And I understand all of that. But the question many people have asked is, why didn't you just ask the judge and let him decide?
Attorney General Reno. Okay. Let's take it-- first of all, just when I make a finding that something meets the requirements of the statute, I can't say that probable cause exists if I don't think it does.
Senator Kyl. Just in shorthand terms, your answer is, You didn't think it was close enough to submit it to the judge?
Attorney General Reno. Well, let me go--
Senator Kyl. No. I'm not trying--
Attorney General Reno. I want to answer--
Senator Kyl. I have one more question I want to ask.
The Chairman. Your time is up, Senator.
Attorney General Reno. Charge my time. It's so important that we try to answer things carefully.
Senator Kyl. Sure.
Attorney General Reno. If I had a situation where he might be, at that point delivering the W-88 and time was of the essence, but I've got somebody that did that ten years ago, if he did it, and I don't have any information or probable cause to show that he transferred it. I have some other inferences that are developed. If I take the case to the court, and the FISA Court approves it, and I walk in and find a gold mine of information that shows that he did it, and I cannot use that information because the District Court that considers the motion to suppress in the prosecution, concludes that there is not probable cause, there was not probable cause for the warrant, I am not going to be a very happy camper. In that situation I've got to first honor my obligation. If I don't think there's probable cause, I can't find that there's probable cause. And secondly, I have got to make sure that I consider that although the primary purpose of the application is to determine whether there's ongoing espionage, there may well, if we get information, be a basis for a criminal prosecution, and I should protect the warrant in that situation, if I can, with additional information.
And ideally, what I would have-- and Senator Sessions, as I responded to him, it's my responsibility. I think I now have in place a clearer understanding that they will bring it to me so that I can sit down and say, "Can we do this? What can we do about that? Can we develop this information? How do you know that [words deleted] What is the basis for it? What can we do to build information that this is c1andestine? We've got to show probable cause to prove that it's clandestine, and here [words deleted]?"
Senator Kyl. And, Mr. Chairman, I'll forgo asking the other question, if I can just make this observation.
The Chairman. Yes.
Senator Kyl. I appreciate the acceptance of that responsibility, because ultimately you have a dual responsibility for both prosecution and/or the FBI, part of whose responsibility is counterespionage. I guess where I would ask you to strong consider a different point of view is in what you just-- how you just expanded on your answer to my question. And you said you would really feel bad if, as a result of getting the court order, the FISA order, you uncovered a gold mine, but it turns out that the warrant really wasn't up to the standard for admitting all of that evidence in court so you could get a prosecution. I believe that there is a difference between the primary purpose of the FISA warrant to uncover intelligence breaches on the one hand, and guaranteeing that whatever information you get can be used in a prosecution on the other. It would be nice if they were the same, but I just wonder whether you are too concerned about making the case in court, and may have erred on the side of making sure that not only do you uncover the information important for counterintelligence purposes, that may lead to saving the country in a lot of other respects, but you can also get this guy in court.
To me there's a secondary consideration in a FISA application. The first, the primary purpose, as it is stated, is to try to figure out what happened here and try and stop anything more bad from happening. And if you can use that information in court, all the better, but the primary purpose is to try to stop the flow of blood here, stop the espionage, and find out who did it and make sure they're not doing it currently, and only secondarily are you interested in pursuing it in court. And I just ask you to consider whether you focused too much on that secondary purpose.
Attorney General Reno. I would agree with your analysis, and I don't think I focused too much, because the clear-- and in this instance, Director Freeh has talked about his urging the Department of Energy to remove him, so that-- I mean, you solved the problem. I mean, when you look at Ames, you look at Nicholson, you look at how we put those cases together, how we took steps, and in some instances, from what we saw, the information was delivered a number of years previously, it makes sense to try a [word deleted] it makes sense to try these other initiatives that Mr.Lewis talked about, not go on forever. And what I just wished had happened is that we had pursued these in a timely fashion, not over a long period of time, to see what could have been done to perfect it.
Senator Kyl. Thank you, Mr. Chairman.
The Chairman. Thank you. Senator Torricelli.
Senator Torricelli. Thank you, Mr. Chairman. Mr. Chairman, thank you very much for holding this hearing,, for the opportunity.
Madam Attorney General, let me begin by explaining to you privately some of the things which we all lack to say publicly without a recourse. I appreciate the fact that in retrospect there are aspects of this case that would be handled differently. You would have asked questions of your subordinates. You might have appointed somebody different to review the application. You would have reviewed the matter with Louis Freeh. The fact is, none of those things happened. And I also believe in this system of government there is accountability. There are real consequences for what happened, as everyone in this room knows. A generation of Americans are going to live with the reality that a potential hostile power has access to nuclear weapon they might not otherwise have possessed, and they're now marrying those [word deleted] potentially with ballistic missiles that can reach the United States. This is not an inconsequential failure of law enforcement. And the consequences aren't going to end this year or next year, they can go on for the next 10 or 20 years.
If people aren't held accountable for failures of this magnitude, there is virtually-- pale by comparison with any other accountability for any other lapses of judgment in this government.
I don't believe there was a failure to establish probable cause. I don't even believe that you think there was a failure to establish probable cause, because I don't think it was a close call. [number deleted] people have access to some of the most vital weapons design information in the United States Government. There is serious reason to believe that information is compromised. One of those individuals is wiretapped. One of them was found to be deceptive previously on a polygraph. One of them was known to give unclassified information to another foreign government, and a variety of other lesser questions. In my judgment, any one of those was sufficient, given the magnitude of the security of this country, to allow this application to at least proceed to a judge.
In the first explanation of the Department-- and nothing ever raises my suspicion more than moving explanations-- the first line of the defense by the Department was the information was stale. Madam Attorney General, information in an espionage case, in my judgment, is never stale. Indeed, unless I'm wrong, what's the statute of limitations on an espionage case? It is never. It is never. How [expletive(?) deleted] can probable cause information for this application ever be stale given the magnitude of what has happened?
Well, given the extraordinary nature of that line of defense, staleness then gave way to that it was insufficient. I think as members of the Committee on a bipartisan basis demonstrated today, there is real doubt here whether indeed that is accurate either. But it leaves us with the issue of looking back on accountability, and looking forward, what we have learned.
Let me for a moment explore how the Department of Justice has actually administered on these issues. What is the level of information that is otherwise brought to your attention on these FISA requests on other cases? If there's been previous denial, was it brought to you? Were they otherwise reviewed by your office? What is-- was this a failure of procedures or was this the standard procedure, how the Lee case was handled?
Attorney General Reno. Mr. Chairman, would it be appropriate for me to respond to the Senator now concerning the rather fierce criticism he leveled or should I wait--
The Chairman. At any time you'd like to.
Attorney General Reno. I do not believe there was probable cause at the time, Senator. I appreciate your suggestion as to what I believe, but I can tell you I very firmly believe that, and just think it-- want to make that on the record.
Senator Torricelli. I think that's an issue then that, Mr. Chairman, that this Committee should be--
Attorney General Reno. Secondly, if I may-- I didn't interrupt you, Senator, and I think--
Senator Torricelli. Please proceed.
Attorney General Reno. I'm happy to be held accountable when I do something wrong. Thirdly, my recollection is, when I gave-- I have never seen you at any hearing in which I have offered an explanation, and my reco llection is that you weren't here when I gave the explanation. I just think it very important on matters that are of great, great moment for this nation, that we do it carefully and thoughtfully and based on solid information. You and I may disagree at the end of that, but I will tell you with all my heart and soul, Senator, you can't tell me what I think. That I know for sure.
Senator Torricelli. Well, Madam Attorney General, I think that raises another issue with the Committee. If you continue to be of the judgment that in espionage against the United States evidence that a person has otherwise passed information to another nation, which Mr. Lee did with Taiwan, or was deceptive on a polygraph, or was seen in the proximity of other--
Attorney General Reno. He was not deceptive on a polygraph as of August of 1997.
Senator Torricelli. On retesting, it's my understanding he was not found to be, but is it not true then in his first polygraph he was found to be deceptive?
Attorney General Reno. [words deleted], the FBI investigation of Lee Wen Ho during '82 and '83 subsequently discovered two significant developments.
Senator Tcrricelli. What happened after the first polygraph?
Attorney General Reno. There was one polygraph, and it says, "Leading up to that polygraph, at about this point in the Lee investigation, the FBI believed that Lee Wen Ho had concluded that [word deleted] was fired, not for providing classified information to [words deleted], and that Lee's own links to Taiwan and the Taiwanese Embassy in Washington, D.C., were apparently the cause of Lee's [words deleted]. The FBI learned from a Los Alamos National Laboratory employee familiar with Lee WenHo, that Lee appeared to be a strong Taiwanese supported. FBI investigation also discovered that Lee [words deleted]
"On November the 9th, 1983 Lee Wen Ho was interviewed by the FBI in Los Alamos, New Mexico [two lines deleted] During the interview, Lee volunteered that he had vaguely heard of [deleted] and believed that [deleted] had gotten into trouble due to contacts with [deleted]. Although asked several times, Lee [stated] that he'had never attempted to contact [deleted] did not know [line deleted] Lee said he heard [deleted] was no longer at [words deleted] and that he had no way of contacting him at his home. Lee agreed to assist the FBI in its investigation of [deleted]. However, the FBI did not attempt to use Lee in [words deleted].
"On December the 20th, 1983, Lee Wen Ho was again interviewed by the FBI. Lee conmented that he had been in contact with Taiwanese nuclear researchers since 1977 or '78, and had done consulting work for them in addition to giving them unclassified research papers. Lee indicated that starting about 1980 he would receive requests for papers and reports from the Taiwanese Embassy, which he would then copy and mail to the Embassy. Lee explained that he contacted [deleted] because Lee thought [deleted] was in trouble for doing the same sort of thing that Lee had been doing for Taiwan, and thus Lee had beccme concerned.
"On January 24th, 1984, Lee Wen Ho passed a polygraph examination, which included questions concerning whether he had ever passed classified information to any foreign government, as well as the nature of his contacts with [deleted] and with [deleted]. The espionage investigation of Lee Wen Ho was closed on March the 12th, 1984."
Senator Torricelli. And are you unaware that he was retested? Sitting in that chair last week for the Government Affairs Committee, the FBI testified they required a retesting of Mr. Lee, having passed the polygraph, that he was found to be deceptive on the--
Attorney General Reno. I am telling you what is here in 1997. I think you may be listening to the polygraph that was administered in late '98 or early '99.
Senator Torricelli. Well, Madam Attorney General, here's what I'm left with. Is that-- aside from the questions of accountability for the past, there is the issue about how the country will deal with these issues in the future, whether indeed you believe in a matter of policy that an espionage case's evidence is ever stale, so it does not warrant wiretaps or other court-approved measures for investigation,and whether or not indeed the standard that we are going to apply in dealing with the espionage cases is so sufficiently high that it approximates other matters of law enforcement in the country, and even the question of whether-- what the expectation of privacy is on government property, on a government computer on government time, on government work. It appears to me that this did not happen by accident. You may be operating with a philosophy of what is required for these investigations that may be at variance certainly with myself, and I suspect from this questioning, with a significant number of the members of the Committee, leading me to conclude that under present circumstances, there is no reason to believe that this same problem wouldn't reoccur.
Attorney General Reno. Well, let me suggest to you what we have done, because I don't think you were here when we discussed it. We have--
Senator Torricelli. Madam Attorney General, this is the second time you've made reference to my attendance. I don't know what hearing you are referring to--
Attorney General Reno. I don't know--
Senator Torricelli. I don't know what you are referring to, but I know that if it's relevant, whatever happens in this committee, I can assure you, we're either briefed on or read about.
Attorney General Reno. Okay. I appreciate that, but just before you-- I'd like to again describe to you-- it is not a moving target, the reasons determined by the Office of Intelligence Policy Review are what they believed. I have testified here and in other committees that I did not-- I thought that the information would be sufficiently current, but I did not think it was sufficient for probable cause.
With respect to a standard, let me suggest to you, I am not suggesting the standard for probable cause to search somebody's house for a law enforcement purpose. I am saying to you that in this instance, probable cause is in the context of the FISA Act, and I don't think that there was probable cause under the terms of the FISA Act, with what is required to be shown and for what I need probable cause.
You talk about the statute of limitations as if you then anticipate a prosecution. I'm trying to do everything that I can to hold people responsible, to avoid further dissemination, and, yes, I take responsibility for the fact that I was not advised. As I said at the time earlier, Senator, if I had been advised, if we had gone through all of these records, if we had seen other people with greater motivation, if we had seen other people who at the time had failed polygraphs, I can't tell you that I would have found probable cause. Based on what I've seen, I probably would not have, but I am--
Senator Torricelli. In other cases where people failed polygraphs on espionage cases, you would not have found that as being probable cause either to do a surveillance?
Attorney General Reno. What I am saying to you is that on the DOE report, that I think you may be familiar with, this is [nineteen lines deleted]
That was one of the people. Not one of the [deleted] but one of the people highlighted in the DOE report that they thought was too remote.
Another was a person who had been pro-PRC, anti- Taiwan, had spent time in Beijing, had had access, and one of the things that we might have been able to do is to pursue these people and exclude them, but I can't say that based on all of the circumstances, I think that I have reason to believe that this is the man who passed the secrets, or that he is currently engaged, as of 1997, in espionage.
Senator Torricelli. Well, that sounds like a standard somewhere between indictment and conviction. We're talking about a standard to get a wiretap in a matter of national security.
Attorney General Reno. Well, the standard--
Senator Torricelli. This hearing is going to end where it began. We just across this table have a very different concept of the standard that's required by law and what's necessary to protect the national interest, and in which regard it appears that we've made relatively little progress, though we understand each other's positions.
I know, Mr. Chairman, my time has expired, but thank you very much for being so liberal with it.
The Chairman. Thank you, Senator.
Attorney General Reno. If I may, Mr. Chairman, because I don't want to leave the record unclear.
The Chairman. Sure.
Attorney General Reno. I do not believe that the standard is the standard by which you would indict somebody or that you would search for a law enforcement search. I believe the standard is probable cause to show that the requirements of the FISA Act are met.
The Chairman. But I think Senator Torricelli is saying that that standard is maybe too strong.
Attorney General Reno. well, it's the standard that Congress has adopted.
The Chairman. Okay. One of the problems I'm having here is that other than Senator Kyl's memorandum that he mentioned, I don't know of anything here that's of a classified nature, maybe other than the matrix matter, people. I don't know that that's appeared in print, but we should have covered all of this in open hearing.
Senator Torricelli. We should have. I strongly agree with that because I think what is obvious from this hearing is that there is nothing now in place in the standards that are being used or the judgments that are likely to occur, that is any prevention for this ever happening again. And if these are the standards in which we're going to operate in dealing with espionage cases, that should be known to the American people and this should be public.
The Chairman. I agree. If your interpretation of the standard is right, then this country is going to be in real trouble sometime in the future if not already. Now, I'm not denying that you're sincere in making your statements. I've always believed that. Let me just say this to you, that one of our problems, this Committee really has the obligation of oversight, and I think much more so than any other committee in the Congress. We have a pretty rough time conducting it most of the time because we don't want to subpoena documents and so forth, so I'm going to send you a formal letter that will request documents, and I hope that we can work that out together, because there are a lot of things here that we've got to get to the bottom of, and it's not throwing accusations at anybody. I'd like to get to the bottom of it for the future if nothing else, and, you know, I have my personal views or. this, and it's fairly serious.
Attorney General Reno. Senator, let me just describe to you, this is what the Congress of the United States, what I just repeated, that "upon an application made, the judge shall enter an ex parte order, requested or as modified, approving the electronic surveillance, if he finds that"-- and the pertinent part is-- "on the basis of the facts submitted by the applicant there is probable cause to believe that the target of the electronic surveillance of the foreign power and an agent of a foreign power, that each of the facilities, et cetera, are being used or is about to be used by a foreign power."
And it is a probable cause determination, and I didn't draft that.
The Chairman. I understand.
Attorney General Reno. That's what Congress did. You have an application where-- I will say you have an application where the only indication of what the man has done in terms of passing information is to a government that has not been an ally or friend, and is really opposed to the conclusion that you reached that this man is an agent of the PRC. You have the man passing a polygraph. The Senator suggests that he failed this polygraph that was given. There has been no information given to the FBI-- given to me by the FBI indicating that he failed it.
Senator, never have I been so concerned that people are jumping to conclusions and not looking at the facts. We have got to be very, very careful because you don't want somebody putting a microphone in your home based on the fact that you failed a polygraph when you didn't fail a polygraph or putting something in-- a microphone in your home because you exchanged information with a colleague in Great Britain, who's at odds with somebody that you are now suddenly alleged to be an agent of.
It is just very, very important that we go over this very carefully and that people understand what probable cause means.
The Chairman. Well, I think there's a difference between the threshold to satisfy a FISA application and the threshold to meet probable cause. For instance, these standards in fact do appear to be different. The former seems easier to satisfy since it makes a special provision for evidence gathered under FISA that is subsequently found to have been unlawfully gathered. So this is where I'm having some difficulty here, but let me--
Attorney General Reno. Senator, there are two different standards with reference to, not probable cause, but what is sought. To search your house for a law enforcement purpose, I have to have probable cause to believe that I will find the evidence there that will prove-- I've got to lay out a much more stringent requirement. Here all I have to show is that he knowingly engages in clandestine-- and I must have probable cause to believe that it is clandestine intelligence-gathering activities by or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States. Probable cause is the same, but what I need probable cause for is different.
The Chairman. Okay.
Attorney General Reno. And it is not-- I have not sought the higher standard. I have sought to find probable cause to believe that he "knowingly engages in clandestine" --clandestine? What I have is [lines deleted] That doesn't sound very clandestine-- "that he's engaged in clandestine intelligence-gathering activities by or on behalf of a foreign power." The only thing that this application says is that it's [words deleted] "Which activities involve or may involve a violation of the criminal statutes of the United States."
The Chairman. Let me get back and get a couple of facts. After the July denial of the Department's-- by the Department's Office of Intelligence Policy Review, it's my understanding that the matter was then appealed, and that during the August 20th meeting you were briefed on the issue.
1 want to say at the outset I hate these type of hearings between you and me. I know you do too.
Attorney General Reno. Well, as you know, I'm happy to come to them, and I usually find them very useful. I am not finding this one very useful when people I am trying to fully inform go off and leave.
The Chairman. I understand. I am-- you know, I really don't care much for oversight hearings, between you and me, and I don't like the--
Attorney General Reno. Well, you don't have to apologize to me for them.
The Chairman. I know, and I don't like some of the conflicts that occur, but they are essential, and we have to do them.
Attorney General Reno. I don't think conflicts like that are essential. Senators can do any number of things, but to tell me what I believe or don't believe, that's just plain wrong.
The Chairman. Well, I didn't interpret it that way, but I can see where you might have. But it's my understanding that after the denial of the Department's Office of Intelligence Policy Review, that the matter was then appealed, and then during an August 20th meeting you were briefed on the issue.
Attorney General Reno. No. In the August 20th meeting there was a general discussion of the lab issues at Los Alamos. At the end of the meeting, Lewis says that he talked to me generally about a FISA. I did not understand it to be-- because I have a memory of a discussion where Lewis says, "I have a problem with a FISA." That's the only time it occurred. I don't have a recollection of being shown the application, and Lewis does not indicate that I was shown the application or briefed on what they had.
The Chairman. You don't recall any of the specifics that transpired then with regard--
Attorney General Reno. That's correct.
The Chairman. With regard to that meeting with regard to the FISA.
Attorney General Reno. That's correct. I recall specifics with--
The Chairman. You don't deny that Lewis was, you know, that he--
Attorney General Reno. Lewis and I-- I have said from the beginning that Lewis--
The Chairman. I'm not trying to pin you down. I'm just saying--
Attorney General Reno. No, pin me down. I'm not trying to avoid being pinned down.
The Chairman. I know. Listen, all I'm saying is you don't remember the conversation with Louis Freeh that could have occurred. I guess that's what I'm--
Attorney General Reno. What I am told is that Lewis says that he didn't give me any specifics, and he didn't raise it by name.
The Chairman. Do you recall who was present at that meeting?
Attorney General Reno. We have the list, so I don't have to rely on my memory.
The Chairman. Would you submit that for us
Attorney General Reno. Yes.
The Chairman. Okay. Then also, was the name Wen Ho Lee mentioned during that meeting that you recall?
Attorney General Reno. I had heard the name Wen Ho Lee. I do not know whether it was mentioned by specific name, but my recollection is that if it were not mentioned by specific name, the circumstances of what was happening was mentioned.
The Chairman. So you don't recall whether there was some mention that he was an American citizen?
Attorney General Reno. I have no recollection of whether anybody mentioned whether he was an American citizen or not.
The Chairman. Okay. So in essence then, after the August 20th, 1997 briefing, because you don't recall, you didn't take any action?
Attorney General Reno. No. I took action, according to Lewis, in that I asked it to be reviewed again.
The Chairman. And is that to the Deputy AG Eric Holder's office, and Mr. Seikaly?
Attorney General Reno. That's correct.
The Chairman. Okay. And at that point, they concurred in the opinion of the Department's office of Intelligence Policy Review that probable cause was lacking?
Attorney General Reno. That's correct.
The Chairman. Okay. And you have testified that neither Mr. Holder, nor Mr. Seikaly, or anyone at DOJ informed you that they had denied the application a second time?
Attorney General Reno. I don't think Mr. Holder denied the application. I don't think he was presented with it. I think, from my conversations with Mr. Seikaly, is that he went back to Mr. Kornblum and said that he agreed with him. Mr. Holder, to my knowledge, was--
The Chairman. But you say you were never informed, so you don't know one way or the other?
Attorney General Reno. I'm telling you what Mr. Seikaly told me.
The Chairman. Right, right. Following the DOJ's subsequent determination in August of 1997 to deny the FISA application, did the Department give the FBI any guidance as to how it might satisfy its interpretation of FISA?
Attorney General Reno. My understanding is that Mr. Kornblum, at the time, discussed various points that could be done-- this would have been before the August 20th application. I don't know whether he discussed them further, but Mr. Lewis reflects-- Ms. Townsend advises me that at the August 12th with OIPR and the Bureau that various suggestions were made, but I don't think they were made to Mr. Lewis. Mr. Lewis, in his memo to Director Freeh, following the August 12th meeting, makes a number of points as to what can then be done possibly to gain sufficient probable cause for the electronic surveillance.
The Chairman. Okay. Further, did the Department of Justice or the FBI take any action to insure that national security interests-- or national security was not being compromised?
Attorney General Reno. You would have to check with Director Freeh, because he was handling it, and my understanding at the time was that he spoke to representatives of the Department of Energy. They had said, "We're keeping this person on because of the investigation." He said that that would not be necessary, and he continued to press, in any number of ways, for the whole review of the Department of Energy to take place.
The Chairman. So he may have, but you're not aware of any further action the Department took, right?
Attorney General Reno. The FBI, last I heard, was the Department.
The Chairman. Okay. Now, I'm not being antagonistic.
Attorney General Reno. I just--
The Chairman. Look, I can't solve the problem with Senator Torricelli. I thought his questions were relevant. 1 thought they were good.
Attorney General Reno. I don't think your question was antagonistic.
The Chairman. I didn't mean to be.
Attorney General Reno. I'm just saying the last I heard of, the FBI was in the Department of Justice.
The Chairman. Well, let me just finish this line, and then I'm going to go to Senator Specter, if that's all right with you, Senator Leahy?
Senator Leahy. That's fine.
The Chairman. Who then would you say is responsible for the reported failure of the Department or the FBI to obtain a search warrant for Wen Ho Lee's house until April of 1999? [two lines deleted] and it was one month after he was fired from the job. I think that's what Senator Torricelli was referring to when he said that he failed a polygraph test.
Attorney General Reno. Well, Senator Torricelli was asking me about a FISA application in 1997.
The Chairman. Right, I understand that.
Attorney General Reno. And he was saying that the polygraph to which I referred showed deception, and I am trying to clarify for him that the FBI, to this very moment, has never presented me with anything but the statement that in 1983 he passed a polygraph and the case was closed in 1984.
The Chairman. Well, I'm telling you that [line deleted].
Attorney General Reno. Well, that's what I explained to Senator Torricelli, that when he said Director Freeh sat in this chair and told him that, that he possibly misunderstood, and that what Director Freeh was saying [line deleted]
The Chairman. Well, I asked you in a letter last Friday for the Department of Justice to produce to the Committee all of its internal documents pertaining to the FISA application for Wen Ho Lee. Now, based on your answer to that letter, it would appear that DOJ has no such internal documents in its possession. Now, is it possible such documents have been destroyed by DOJ pursuant to that document retention policy, as the FBI has indicated to us, and if so, can you tell me what that policy requires?
Attorney General Reno. I don't know of any documents that have been destroyed.
The Chairman. I'd like to know. I'd like the answer to this.
Ms. Townsend. Senator, when the Wen Ho Lee matter was first being reviewed, in other words, in the 1999 period, OIPR did a search for documents. It came to my attention-- I was not there in the '97 time frame-- it came to my attention, when we went back to reconstruct the files, that the documents had not been retained. For example, Mr. Ryan, who was responsible for preparing the drafts, had overridden it on a computer. Hard copies of documents we routinely shared with the FBI, and we knew that the FBI retained the hard-copy documents that we had shared with them. We reconstructed the file as best we could with the cooperation of the FBI, got the drafts, got Mr. [deleted] notes. We went back and found the assignment sheet, when the LHM came in, of Mr. Kornblum assigning it to Mr. Ryan. We found a calendar notation of Mr. Ryan's indicating a meeting with Mr. [deleted] to discuss the drafts. But the underlying draft applications had not been retained by OIPR.
In the wake of finding that, Senator, we do now have a records retention policy, establishing a central filing system for the Office of Intelligence Policy and Review, and we will share that with you.
The Chairman. Okay. We would like you to do so. Mr. Jennings, with OLA, has sent the committee a letter which states that the Department, quote, "has not located any work product or communications addressed to Messrs. Kornblum and/or Seikaly", unquote, relating to this matter.
Now, has the Department taken all steps to obtain any document addressed to or created by these individuals or any other DOJ officials involved in the FISA application review?
Ms. Townsend. Senator, I'm not aware of any documents or any work product of Mr. Seikaly's. The only work product that I've seen relating to Mr. Kornblum, are editorial notes on the margins of one of the drafts, which I believe has been produced to the Committee, but I will check to insure that. The handwritten notes on the margins of the drafts are those of Mr. Kornblum.
The Chairman. If you will do that, I'd appreciate that.
Attorney General Reno. Mr. Chairman, I also want to-- I learned something this morning and asked that it be clarified. I was told that you might not have the Department of Energy report and other things because that had been a Bureau record, but I've instructed that you-- we're sure you get everything.
The Chairman. If you will get that for us, I'd appreciate that-. Thank you.
Now, General Reno, please tell me who was involved-- please tell me who was involved within the Department and the decision to deny the FISA request and with whom they consulted. We don't have that information. We'd like to know.
Attorney General Reno. Well, as I previously testified, Dave Ryan was the person to whom it was assigned by Allan Kornblum. Mr. Kornblum reviewed his decision, and Gerald Schroeder, the Acting Counsel of the Office of Intelligence Policy Review, reviewed that. Dan Seikaly then looked at the matter and talked to Allan Kornblum. and told him he agreed with it.
The Chairman. Is it possible that the Department employees associated with the FISA. matter could have also been involved in either the Campaign Finance Task Force investigation or the request for an appointment of an Independent Counsel?
Attorney General Reno. No, they were not.
The Chairman. Not one of them?
Attorney General Reno. No, sir.
The Chairman. What sort of a screening mechanism is in place to insure that no such overlap occurred? Do you have a screening mechanism down there?
Attorney General Reno. Where it is appropriate for screening mechanism, we raise it. There was no cause to raise it here. They're two separate issues.
The Chairman. Are you aware whether any of the decision makers were political appointees, and if so, who were they?
Attorney General Reno. None of those three are political appointees.
The Chairman. Were there any political appointees involved in these decisions or any of these decisions?
Attorney General Reno. Again, Mr. Lewis said that he consulted with me. I referred it to Mr. Seikaly. Mr. Seikaly is not a political appointee either, but I was in that loop in terms of causing the review.
The Chairman. Right. Were there any other persons who you would consider a political appointee, besides yourself, who may have had something to do with this?
Attorney General Reno. Not to my knowledge.
The Chairman. Okay. I'd like to ask you-- let me ask you this. What formal attempts or steps has the Department taken to collect all internal documents on the FISA matter? You could answer that, Ms. Townsend.
Ms. Townsend. Senator, what I found when we went to go back and reconstruct the file, was that there was not a central filing system, which the short version of this meant, that as the [deleted] or annual letterhead memorandums on the [deleted] investigations were reviewed, they would have come in and been assigned to a lawyer who had the most time available to handle it, i.e., documents may have resided with various individuals within the office. We had originally pulled together-- we had originally reconstructed the file based on our cooperation with the FBI to get the drafts together, the letterhead memorandum and relevant notes. Having pulled that first set of documents together, realizing that there was not a central filing system within the Office of Intelligence Policy Review, we then went out to all the lawyers and obtained the copies of the annual letterhead memorandums for the [deleted] investigations and the [deleted].
So that we've gone to every lawyer in OIPR and asked them to review their files to insure that there are no additional documents. I am satisfied now, having done that, and having worked with the Bureau to get the draft documents and the letterhead memorandum, that we have now reconstructed to the best of our ability and pulled into one place, every document that relates not only to the FISA, but also to the [deleted] investigation. So the entire-- any documents that the Department would have had relating to the investigation and the FISA have been pulled to one place.
The Chairman. Now, I'd like to ask, General, for your cooperation in putting together an analysis of those FBI FISA applications that the Department has approved to be taken to the FISA Court under your watch, with particular focus on whether the Department has ever approved a FISA application on the basis of a law enforcement matrix.
Attorney General Reno. We're not doing it on the basis of a law enforcement matrix. I can tell you that.
The Chairman. But I'd like to have that information.
Attorney General Reno. Okay. I will testify.
Ms. Townsend. Senator, I'm sorry. Could I ask you to repeat that? I want to make sure that I understand what it is you--
The Chairman. We'd like an analysis of the FBI FISA applications that the Department has approved to be taken to the FISA Court under the watch of General Reno, with particular focus on whether or not the Department has ever approved a FISA application based on a law enforcement matrix.
Attorney General Reno. What do you mean by a law enforcement matrix?
The Chairman. Well, a matrix, as I understand it, is an analysis of characteristics a suspect is believed to possess, as distinct from individualized proof pertaining to a particular suspect.
Attorney General Reno. Okay.
The Chairman. So I'd like--
Attorney General Reno. But that's not necessarily a law enforcement matrix.
The Chairman. No.
Attorney General Reno. You just want any application that we've based a matrix on.
The Chairman. Well, that plus all of the-- we'd like to have an analysis of all of the FBI FISA applications that you've approved under--
Attorney General Reno. I mean, what do you mean?
The Chairman. Well, how many do you have a year, about 700 a year?
Attorney General Reno. Yes.
The Chairman. Well, we'd like an analysis of all of them.
Attorney General Reno. For the last six years?
Ms. Townsend. Senator, we--
The Chairman. Well, let me-- staff tells me we can limit it to US Persons. We'd like to have that. You should not have too awfully many of those, sc weld like to have an analysis of that. I can see why you were alarmed over the six-year- thing, that would be 4,300 or so, 5,000 or so. But I'd like to have the--
Attorney General Reno. If we could, Mr. Chairman, could we work with your staff and see--
The Chairman. You can. I'd like to have it done by the end of the week though. I'd like to be on top of this. Attorney General Reno. I can't suggest to you that it would be done by the end of the week.
The Chairman. Well, as early as you can, but we'd like to use that as kind of a target date if we could.
Attorney General Reno. I'm told we cannot provide the DOE report, because under the third agency policy, it's not a DOJ document, but I'll try to get that released immediately.
The Chairman. Sure. I have other questions, but I've taken way more time than I should have. I'll turn to Senator Specter for the second round.
Attorney General Reno. I'm happy to stay here for as long as you all want, if you want to finish your line of questioning.
Senator Specter. Thank you, Mr. Chairman. I do have some questions.
Ccmments have been made about Senators who have come and gone. Senators do have other business. I arrived a moment ahead of the chairman at 10:00 o'clock, and you were here Madam Attorney General. It's now 12:26, so it's been a fairly long session already, and I have attended, on invitation, the Intelligence Committee hearings, where you testified on May 12th and May 19th, to try to understand exactly what went on here, and the focus that I have, I said at the intelligence Comittee hearing, is trying to figure out where we go for the future. I asked you at that time to see if you could make some suggestions on redrafting the statute, or making a difference in analysis between the chief provisions, one with approval and one with certification.
And I find it-- just as a personal aside-- not fruitful to talk about resignations, either privately or on the Sunday talk shows, and I don't think it accomplishes anything, and I think what we have to do is figure out what went on and try to figure out how to correct it in the future. That really has to be our focus. I appreciate the changes that you have made, and I know 20/20 hindsight is excellent, and on a matter of this sort, if you were to see it again, the W-88, Wen Ho Lee, that you would not have waited, as you said, for the FBI to come back to you to see if they were dissatisfied, but you to cake the initiative to have gone back to the FBI, and that in a perfect world, not to make the assumptions, even though the assumptions may have some logica1 basis, you would assume, you did assume that the FBI would come to you if they weren't satisfied with what went on with your subordinates. But they did not do that, so you concluded or assumed that they were satisfied. I think if you had a matter of this import in the future, you'll take the initiative and go to them.
Senator Torricelli, Senator Torricelli's conclusions about the accuracy of probable cause are mine, although I would not articulate them as he did. And as you and I have commented both on and off the record-- we've dealt for a long time, and I totally respect your integrity and your competence. I do have trouble on the face of this FBI application for a warrant. You have made repeated references to [words deleted] not being clandestine, and I'm about to go through this-- and I'll do it fairly briefly, Mr. Chairman.
The Chairman. Could I ask one question? I think I'm going to leave and then you can finish up, but could I just-- let's go back to those communications.
Ms. Townsend, I'd like you to answer this question. Have you collected any communications or e-mails by DOJ employees involved in the FISA matter, and also, to your knowledge, were any documents related to this matter destroyed? Because we do have a conflict here, and did you check that, communications, e-mails, any kind of communications, e-mails?
Ms. Townsend. I can just say to you in terms of the communications and e-mails, OIPR at the time had-- each attorney had a stand-alone computer, so that they would not have been able to communicate e-mail wise with other components of the Department. Because this was a classified matter, you couldn't have sent e-mails to one another. I will go back and check to insure that that's correct.
The Chairman. I'd like you to do that.
Now, what I'm going to do is-- I've missed one appointment. I have a couple others. I'm going to let Senator Specter end the hearing, and ask any questions that you care to ask.
Senator Specter. Mr. Chairman, before you leave, let me thank you for your decisions on making requests and writing as to documents as to these plea bargains. I've got a whole list, of Peter 0. Lee and Johnny Chung and Charlie Trie and John Huang, and also the--
The Chairman. The law is pretty clear that we have a right to those things as the oversight committee. So I hope that you'll cooperate. I will send a strong letter--
Senator Specter. Also the pendency of the prosecution as to Wen Ho Lee, whatever that is.
Attorney General Reno. Mr. Chairman, you were very helpful upon another occasion as to how we meet our oversight obligation while at the same time not interfering with a pending criminal investigation, and I'm sure we follow somewhat similar procedures.
The Chairman. Well, we want to always do that, but we also-- we'll try to cooperate fully with you. We want full cooperation with us too because--
Attorney General Reno. We will do the same.
The Chairman. I'd like to put this to bed one way or the other, and do it in an intelligent thorough way.
Senator Specter. Mr. Chairman, I also want to say that I concur with your judgment that this could have been an open hearing.
Attorney General Reno. I would suggest to you-- I was going to raise that with the chairman, and I'm glad you reminded me-- I think somebody said it could have been an open hearing except for the DOE report, but there is information--
The Chairman. Plus the mention of [deleted] people, but--
Attorney General Reno. Well, there's information--
The Chairman. But I don't think the DOE report should have been classified. I meant the document that he mentioned.
Attorney General Reno. Well, if you see it, I think you would-- I think it is very much subject to classification, and with respect to additional information, the additional information was [deleted]. It refers to a source, and I think you would be seriously exposing sources and methods, so, please--
The Chairman. We'll be careful.
Attorney General Reno. It is very important that--
Senator Specter. Mr. Chairman, if I might finish what I was in the middle of saying?
The Chairman. Sure.
Senator Specter. I would like my letters to you of May 26 and June 1st to be made a part of the record, where I have suggested an open hearing, and I think-- it would be my hope that this transcript would be reviewed, and if there are any redactions necessary for security purposes, fine. But in order to have what we were talking about here understood, first by the Department of Justice people. We have these closed hearings. People do not know about our differences of opinion. And, Attorney General Reno, you may be right or you may be wrong about the interpretation of FISA, but when you have an open hearing, there is discussion in the legal community to what's going on, and then there is the public's right to know.
[The letters of Senator Specter follow:]
UNITED STATES SENATEHonorable Orrin Hatch
COMMITTEE ON THE JUDICIARY
WASHINGTON, DC 20510-6275
May 26, 1999
Senate Judiciary Committee
I suggest that the Judiciary Committee conduct oversight hearings in a public session on a number of Department Of Justice matters:
1. The plea bargain for Peter H. LeeIn addition, I would suggest that the Committee consider oversight into the Wen Ho Lee matter from the point of view as to why DoJ has not initiated a criminal prosecution -- perhaps closed.
2. The Wen Ho Lee case -- the Intelligence committee has questioned Attorney General Reno and FBI Director Freeh in closed session but there is a great deal which could be heard in an open session on Attorney General Reno's interpretation of the Foreign Intelligence Surveillance Act and also a substantial amount could be the subject of a public hearing on at least some elements of the warrant and probable cause which DoJ declined
3. The plea bargain for Johnny Chung
4. The plea bargain for Charlie Trie
5. The plea bargain for John Huang today
There is substantial authority, summarized in the Congressional Research Summary #95-464A entitled "Investigative Oversight", on the extensive Congressional oversight authority on pending DoJ investigations and prosecutions. As to closed matters, such as the plea bargains, there should be no question about our oversight authority to get at all the facts.
[signed] Arlen Specter
UNITED STATES SENATEHonorable Orrin Hatch
COMMITTEE ON THE JUDICIARY
WASHINGTON, DC 20510-6275
June 1, 1999
Senate Judiciary Committee
This will supplement the letter I sent you last week concerning the Judiciary Committee oversight hearing on Attorney General Reno. I note that the hearing with Attorney General Reno scheduled for June 8 is in Room S-407 where closed hearings are held. I strongly urge you to have her hearing in an open public session for the following reasons.
Most of the testimony which Attorney General Reno provided to the Intelligence commlttee could and should be heard in an open session. For example, the interpretation of the Foreign Intelligence Surveillance Act (FISA) is a legal issue which does not involve sources or methods. The legal issue of "currency" in FISA is one which would be properly heard in a public session.
Similarly, when Attorney General Reno refers to her "certification" under circumstances where she authorizes the search under FISA without court approval, that is different from the section of FISA where court approval is required. That, too, can be properly heard in open session.
In addition, the legal standard for "probable cause" for the issuance of a FISA warrant is appropriate for an open session.
These are legal matters where a public hearing would not only inform the public who have a right to know to the maximum extent possible, but would also serve to inform the Department of Justice personnel where there is such a sharp difference of opinion between the Department of Justice and the Senators who have criticized Attorney General Reno's decision to reject the FISA warrant as to Wen Ho Lee. Several Senators have publicly said that the FISA warrant should have been issued.
Beyond the legal issues, it also may be possible to discuss to a substantial extent, if not entirely, the adequacy of the factual basis for a determination of "probable cause" since so much, if not all, of that has been in the public domain through the news media, and it does not involve sources or methods.
Beyond the FISA warrant in the Wen Ho Lee case, there are other key matters which can appropriately be heard in a public session.
The plea bargain on Peter H. Lee is a closed matter and that is an appropriate subject for Senate oversight in a public hearing.
In addition, the plea bargains for Johnny Chung, John Huang, and Charlie Trie are all closed matters which are appropriate for an open Judiciary Committee oversight hearing.
It is possible that some questions would have to be deferred for a closed session, but I strongly believe that most, if not all of these matters, are appropriate for a public hearing. If the Committee has to reserve some questions for a closed session, then that can be done; but we should at least go as far as we can in an open session.
As you may have noted, I have not joined the Senators who seek Attorney General Reno's resignation, not that I think it an inappropriate demand, but because I think it diverts attention from the important issues such as the appropriate interpretation of FISA and the way to correct mistakes of the past, which should be our focus.
The Chairman. Well, if I could add to this-- I'll come back to you-- we would like to work with the Department to make sure that we release the transcript of this hearing without-- and delete the appropriate things. I don't see much that needs to be deleted, personally, as a member of the Intelligence Committee and, of course, Senator Specter's chaired the Intelligence Committee in the past.
If I could just interrupt for one more thing, Senator Specter, and that is--
Senator Specter. You're still the chairman until you leave.
The Chairman. Well, I always thought this-- I want to know if any documents, regardless, on this issue were destroyed, because we have some information from some people that say that documents were destroyed, and I want to know which ones were.
Attcrney General Reno. Well, for example, we don't know what Draft Number 2 is, and so those are the issues that we're trying to--
The Chairman. That's fine. Well, I'd like to know to the best of your ability.
Attcrney General Reno. Mr. Chairman, nothing would give me greater pleasure than to have all of this open and being able to respond to my critics in a public forum so people can understand. It has been most frustrating, but I do think that there are matters that should remain classified.
The Chairman. Well, that's why we're meeting here.
Attorney General Reno. And I just hope that we can work out an accommodation that achieves what Senator Specter very-- I think would be wonderful, but at the same time, doesn't interfere with the pending criminal investigation.
The Chairman. As you know, I think a great deal of you, but sometimes I think the explanations don't come as quickly as they could, and sometimes they aren't classified. But let's just-- we'll put this transcript out, but we'd want your cooperation on working on what should or should not be classified.
Senator Specter. I quite agree that it has to be reviewed, but I think we keep much too much secret. I saw that when I chaired Intelligence, and we haven't talked about any pending criminal prosecutions, and the oversight authority of the Senate is very extensive, and we may just have to come to terms with that one way or another.
Attorney General Reno. I'd be delighted if we can figure out how to open it up without doing any damage to the criminal investigation.
The Chairman. Well, I'm going to leave you to the mercies of Senator Specter, who I know will treat you very fairly.
Ms. Townsend. Senator, if I might, I apologize. I just wanted to be clear. What I had mentioned earlier is the only-- you raised the document destruction thing again. It makes me nervous. I just want to be clear--
The Chairman. Well, it makes me nervous.
Ms. Townsend. Sure. I understand that Dave Ryan, who is the lawyer who prepared the applications, did override on a computer disk his draft applications. I also understood that for some time he retained hard copies of those drafts, but that he didn't retain those either, and I presume because they were classified, what he would have done, was when he didn't think he any longer needed them, when he hadn't heard back from the Bureau, or you know, enough time passed after his conversations with the Bureau, he would have shredded them and not retained them, and that the hard copies wculd have then been retained in the FBI's files, which is why that's where I went when I sought to retrieve them. So we did not have-- I could not find any copies of the underlying drafts when we first went to look at them, other than in the FBI's files and they were good enough to give them to me. I will go back and find out if there is any other documents that were not--
The Chairman. Well, I appreciate that.
[The Chairman leaves the hearing room.]
Senator Specter. Attorney General Reno, you have referred to the [deleted] individuals who had access, who had traveled and who had met with, people from the PRC, but there is a great deal more on this Draft Number 3, the declaration submitted by the FBI, and I want to go through that with you. And you have made quite a number of references to [line deleted] saying that that was not clandestine, not secret, but there is a great deal in this affidavit, which you did not summarize in your testimony, and which I do want to go through with you.
I understand the sequence that you did not review this contemporaneously or in advance of the Department's decision not to issue the FISA warrant, but you have taken the position after the fact, that legally on its face, it's not-- the totality of circumstances. And that is a judgment call as to what does establish probable cause, but it's not a really precise legal definition, and to the extent that probable cause has been defined in the cases, it depends upon the totality of facts. I do not undertake this discussion with this FBI application for the search warrant with any thought that you're going to change your mind.
Attorney General Reno. Senator, I can assure you, if you give me cause to change my mind, I will.
Senator Specter. Well, I hear you, but I still don't think you're going to change your mind, and I do think that--
Attorney General Reno. You're a better advocate than that.
Senator Specter. I'm also a better realist than to think that you're going to change your mind, but before we parry too long, let me proceed to the specifics. You talk about other people, [deleted] other people being involved, [deleted] with very rough analogies, although I don't think anything to Lee Wen Ho, but in the FBI application-- and I'll run through these--
Attorney General Reno. Which page are you on, sir? Are you on the letterhead memo or Draft 3?
Senator Specter. I'm on a document marked Draft Exhibit A, United States Foreign Intelligence Surveillance Court in the matter of the application of the United States for an order authorizing electronic surveillance of Lee Wen Ho and Sylvia Lee, as in writing, Draft Number 3.
Attorney General Reno. Okay.
Senator Specter. And it is unnumbered, so I'll page through it. I'm now on page 7, where the factual allegation is made, Lee Wen Ho completed foreign travel, identified 14 PRC scientists with whom he had contact during his visit. Only one of them is identified here as-- on the next page--
Attorney General Reno. I think you are confused there. This is his completed foreign travel report concerning his contacts in Beijing or China when he went there. He listed-- it identifies 14 PRC scientists with whom he had contact. [lines deleted] and the issue was, if you are--
Senator Specter. Madam Attorney General, may I raise the question-- we'll go through a sequence here as to what this affidavit says.
Attorney General Reno. Okay.
Senator Specter. And it is true-- and I just read it-- Lee Wen Ho's completed foreign travel report identifies 14 PRC scientists with whom he had contact during his visit. So that he saw a lot more people than [deleted]
Attorney General Reno. Sir, he saw [deleted].
Senator Specter. May I proceed to summarize?
Attorney General Reno. I'm sorry, I'm sorry.
Senator Specter. May I proceed to summarize this? Because I'm trying to get to a totality, and then you'll have all the time you want to respond. And then the next page, 7--
Attorney General Reno. I hate to interrupt you, but you've just told me page 7. You just went over that.
Senator Specter. Going on to page 8-- they are not numbered by the FBI -- and at the top of page 8, although Lee Wen Ho's report identified 7 PRC scientists with whom he had contact, there is a redacted name. I assume you had access to it, but it's not important for our purposes-- was again not listed.
Then going further on page 8, there's been considerable discussion about the FBI espionage investigation of 1982-84. Quote, "When he"--referring to Wen Ho Lee-- "was in contact with a known [deleted] intelligence agent."
Pages 8 and 9 and 10 and beyond, go into that in some detail. But the first full paragraph on page 10, there is a statement that, quote,"Although asked several times, Lee [stated] that [deleted] -- there's a redacted name-- "nor did he know" and a redacted name-- [deleted] So the lie is an important fact there.
Then on page 11, it contains the contents described at the bottom of page 10, of the FBI report also reviewed [five lines deleted]
Further on page 11, statement quoted was, "Lee Wen Ho"-- made the following comment about Lee Wen Ho, [deleted] And so as page 11 goes on, [deleted] the FBI concluded that the individual "name redacted", knew Lee.
And then the FBI affidavit further says, quote, bottom of page 11, "Lee's reports thus indicate that he was intentionally covering up his relationship with "the name redacted."
Then on page 12, there at the bottom of the page, a reference to PRC using certain ccmputational codes-- I'll try to move this as rapidly as I can-- which were later identified as something that we had unique access to. Page 14, quote, "The Director subsequently learned that Lee Wen Ho had worked on "legacy codes."
Then at page 14 there is a further discussion about Lee. Quote, "In this request, Lee sought permission to bring [deleted] a Chinese National student at the [deleted], to the Los Alamos Laboratory to work on classified Lagrangian codes."
And then as specified on the balance of page 14 and 15, that the FBI believes-- you'd expect the FBI, after all this time, to use language such as "concludes" instead of "believes", and "judgmental" as opposed to the language which they use here. But their language is, "Believes that Lee had invited [deleted] to the Los Alamos National Laboratory for the Purpose of giving him access to classified information."
And then further on page 15, on May 9, 1997, FBI review of charges to Lee's Visa credit card disclosed that on December 10th, 1992 a charge of $108.21 to TC Tours Travel, Khaloon, Hong Kong, and either a December 16th or 18th, 1992 charge of $764.60, also to TC Tours and Travels.
And then the FBI affidavits, it says at the bottom of page 15, quote, "Based on Hong Kong's proximity to China and records indicating purchases for the Lees from a travel agency in Hong Kong, the FBI believes that these records may indicate that while in Hong Kong, Lee Wen Ho purchased transportation from Hong Kong to Beijing and returns. Such travel, if it occurred, was not reported to DOE, and may have provided Lee with a covert opportunity to meet with Chinese officials."
Now, in your previous testimony, when you talked about [deleted] people having access, and you had three standards, access to the W-88, travel to the PRC, and access to visitors. Do you not take up the specification of these materials-- and I've only hit the highlights-- on pages 7 through 15, and then the affidavit concludes on page 16. And I, like you, Madam Attorney General, have some experience on applications for-- and what constitutes probable cause. And I won't characterize it as Senator Torricelli did, and I won't challenge either your integrity or your capability, but I have a little hard time understanding how you conclude this is not probable cause on the totality of the circumstances, and I say that knowing ultimately it's a judgment call. You can take appeals to the Courts to get applications suppressed. I don't think you take an application to the Court to get one reinstated or one granted.
Attorney General Reno. Let me review for you beginning at page 7. You indicated in your opening comments that this must have-- somehow or another, you had [deleted] This is a foreign travel report identifying 14 scientists with whom he had contact in China. [deleted] was not listed on that, and that is what I understand. You went on to page 8, and I think you again said [deleted] was again not listed. At page 8-- and let me just take that in context. If you will go over to the bottom of page 10, [five lines deleted] The key portion is the language that I referred to earlier this morning at the bottom of page 11. [three lines deleted] would assume they knew each other. However, the FBI believes that it is significant that Lee never mentioned [three lines deleted] Lee's reports thus indicate that he was intentionally covering up for his relationship with [deleted] At one of the hearings, and I think at both-- I do not recall-- and this morning, I pointed out that there is nothing as of 1997 that showed that [deleted] We now know that he did, but I checked again last night with the deputy director and the assistant director, and they said, "We just inferred that this was the case. We did not have any information, and we might have been able to tighten that up if we had had the chance to explore."
Senator Specter. May I interrupt you? Why do you have to nail it down with that kind of precision for probable cause? That's a good jury argument for the defense lawyer at trial. We wouldn't--
Attorney General Reno. When I make a statement--
Senator Specter. A prosecutor wouldn't have to prove that to get by a directed verdict or a motion to dismiss. That would be a good,defense argument to the jury, but hardly necessary for probable cause, Madam Attorney General.
Attorney General Reno. What I was engaged in was, as I reviewed this, an analysis of what the FBI was saying, and before I conclude that he was intentionally covering up the relationship [deleted] I'd like to be able to show that [deleted] I cannot show that.
Senator Specter. Why do you have to show that for probable cause?
Attorney General Reno. Well, what I'm doing now is responding to your concerns, and you had made reference to the fact that this was one of the reasons why you found probable cause, and I'm just going through your list to respond to the points that you raised.
With respect to page 8, you noted that another reason you felt there was probable cause, because Lee was in contact with a known [deleted] intelligence agent. As you go on in the application, on the bottom of page 9, at about this point in the Lee investigation, the FBI believed that Lee Wen Ho had concluded that [deleted] was fired, not for providing classified information to [deleted], and it is inconsistent with the first statement and shows that the Bureau came to conclude that he was an agent of the Taiwanese Government.
Senator Specter. Madam Attorney General, he may be dealing for money. He may be in the business with alien agents. We don't know for sure that he's tied down to doing this for patriotic reasons. He lies about the conversation he had with the individual [deleted]
Attorney General Reno. He then tells the truth and passes a polygraph, and the Bureau closes the investigation. I am again pointing out to you the point that you made-- and I made the list-- was that one of the reasons that probable cause should be found was because he had contact with a known [deleted] intelligence agent. That is then found-- the Bureau reaches other conclusions, as you read through the application. I'm simply going through the points that you made to try to respond to you based on my best understanding of this.
Senator Specter. Well, I don't think the fact that the Bureau closed it out is--
Attorney General Reno. I didn't suggest that the Bureau closed it out. I pointed-- as the reason I suggest to you that at about this point the FBI believed that Lee Wen Ho had concluded that [deleted] was fired, not for providing classified information to [deleted]. If there was then additional information that would show that he switched loyalties or something like that, that might be useful.
Senator Specter. We really don't have all the answers but--
Attorney General Reno. That is the understatement of the year.
Senator Specter. Well, I don't know that advances our discussion very much.
Attorney General Reno. Well, let me continue to-- I would like, for the record, to be able to respond to your remaining inquiries.
Senator Specter. Well, of course, but when you have Lee dealing with an identified [deleted] agent, and then he comes back and deals perhaps with Taiwan, it's all the more reason, it seems to me, that there is probable cause to conclude that he's doing something illegal in dealing with all of these agents, [deleted], both reliable and extremely sensitive. And then when you say the FBI closed out the investigation, I think the FBI's got a lot to answer to. This is not on your watch or Director Freeh's watch.
Attorney General Reno. I think you're confused because you refer to the agent, [deleted]. That was in connection with the other person. It did not relate to this particular issue. And may I just suggest to you that the allegation is that he dealt with a known [deleted] agent. The information the Bureau then furnishes us is that he did not know him to be [deleted] agent, that he thought he was dealing with him as [deleted] agent.
Senator Specter. Are you referring now to [deleted]?
Attorney General Reno. No. That's a separate matter, sir.
Senator Specter. Well, I was referring to that. I was not confused, but as an additional matter. But go ahead, Attorney General Reno.
Attorney General Reno. I don't have any showing, to my knowledge, as of '97, that they knew-- that they can show that Lee knew that [deleted] was an agent.
Let's see, page 11. You make reference to other-- because somebody goes to Hong Kong and incurs $102 travel bill, that does not show that they go to Beijing, but even if they go to Beijing, you had hundreds of scientists coming to, and students coming to Los Alamos, and a large number of scientists going to Beijing-- and this is the point that I raised with Senator Feinstein-- there are others that are in the same boat. I have gone through this very carefully, Senator, and I appreciate your position. You and I respectfully disagree. And as I go through your points, I would just urge you to read it very carefully, so that you follow it, and don't jump to conclusions and don't be--
Senator Specter. I have done that, Attorney General Reno. I'll give you credit for reading it, and I accept some credit for reading it myself.
Attorney General Reno. Don't mix up the contact with [deleted] and the polygraph. Those are two separate issues.
Senator Specter. When you dismiss the FBI belief on travel to Beijing, it is not a failure to report it, if it in fact occurred, to DOD, suspicious circumstance?
Attorney General Reno. I don't have any reason to conclude that it occurred.
Senator Specter. Well, you have opportunity, inclination, and an unexplained travel charge which coincides with the air fare. Did it occur? I don't know. But is it another substantial strand on probable cause? In my legal judgment, absolutely. If we place that in the totality of the circumstances, it all adds up. But I'm not surprised that you dismiss it.
Attorney General Reno. I don't dismiss it, sir. I simply find that an unexplained travel voucher in Hong Kong does not lead me to the conclusion that someone went to Beijing any more than they went to Taipei.
Senator Specter. Well, but where you have an individual who has very extensive contacts with the PRC and Beijing, in a spot where he can see those people and transmit more information to them, it-- you say that has no weight at all, Madam Attorney General?
Attorney General Reno. I don't find any weight when I don't know where the person went.
Senator Specter. Okay. That's what you have to find out before you can get an indictment or an arrest or to a jury or to a conviction, but not as to probable cause here, not on totality of circumstances.
Attorney General Reno. I do not have probable cause in my mind to believe that he went to Beijing any more than he went someplace else. Before I conclude something-- I mean, if there was an entry that said he went to Beijing or he went to a particular place, that's one thing, but I can't draw a conclusion out of thin air.
Senator Specter. I would suggest this air is not so thin.
Attorney General Reno. I would suggest--
Senator Specter. Anything further you'd like to say here?
Attorney General Reno. Yes. I would suggest that you and I have sharply different ideas than with respect to probable cause and I think--
Senator Specter. As does FBI Director Freeh, as does Senator Torricelli, and does everybody who's reviewed the matter on this side of the table.
Attorney General Reno. I appreciate you speaking for the others, and I would suggest we let them speak for themselves.
Senator Specter. I'm not speaking for them. Director Freeh testified that he felt there was probable cause. Senator Torricelli was bombastic about it.
Attorney General Reno. Senator Torricelli also based his conclusions on some factors that are inaccurate.
Senator Specter. Anything you care to add, Attorney General Reno?
Attorney General Reno. I think whether it's probable cause to meet the standards provided for by FISA or probable cause in any context, one of the decisions of a prosecutor that you know full well-- and I know that I am preaching to the choir-- is that they do make their judgments based on what they think is right, based on the evidence and the law. I have done that in this instance. And I want you to know how very much I appreciate your comment that you respect my integrity and my competence. But I am sick and fed up with other people that demagogue this issue and don't get to the bottom of the issue. It is one of the-- I have had a situation for a year where this Congress criticizes prosecutorial decisions and says that they are too vigorous. Now I have a Congress that criticizes a decision and says it's not vigorous enough. If you, as the DA in Philadelphia, had had to operate in that context, you would have done a good job, but you wouldn't have had as much time to focus on what the real issues of the world were.
I'm going to spend all the time as is necessary to answer questions. I'd give anything in the world to be able to walk out there and answer one by one by one right now, but I've got an obligation to protect appropriately classified information, to conduct a criminal investigation the right way, not in the headlines, to make a determination with respect to prosecution the right way, and I'm going to do it in the Specter tradition. We may disagree with each other, but this is not a-- to politicize this issue, and I recognize that it has been politicized in a bipartisan way, but to politicize this issue is a very, very troubling situation.
What should be done is with people sitting down, as you and I have tried to do today, and trying to see-- you made a wonderful comment the other day, "It's not blame, it's how we.handle these things." One of the issues may be, for example, "knowingly engages in intelligence gathering", and omit the "clandestine." What does "clandestine" add? These are the things that we should be doing. But I'm going to continue to try to do my best. Director Freeh and I work together. We have disagreed, obviously, in highly publicized things, but we agree on more things than we could ever disagree on, and I'm going to continue to try to do my best until I go home.
Senator Specter. Well, I understand all of that, and I would join you with the statement that I'm going to continue to try to do my best. I think you passed the demagogue test with three hours. We're now three hours and seven minutes. If you stay that long you can't be demagogued, and especially when there are no cameras around.
Attorney General Reno. Well, you haven't demagogued this one.
Senator Specter. Well, I hope that's not a negative thing, Attorney General.
1 think we're dealing with very serious matters, obviously, and we need to pursue the matter for the importance of this case, and we need to pursue the matter to educate, or at least to circulate among the professionals and also to the American people, and we'll see how much of this can be made public, because you had an opportunity to explain it in some detail, for anybody who would care to read it, here today.
Thank you for coming, and thank you for your patience.
[Whereupon, at 1:10 p.m., the Committee was adjourned.]