Congressional Record: December 20, 2001 (Senate)
Page S13773-S13830
[...]
Reports On The Cases Of Dr. Wen Ho Lee And Dr. Peter Lee
Mr. SPECTER. Mr. President, before the first session of the 107th
Congress ends, I want to put on the Record reports on the cases of Dr.
Wen Ho Lee and Dr. Peter Lee, which were subject to oversight by the
Judiciary Committee on the Department of Justice during the 106th
Congress. The Subcommittee's work was controversial, partly because it
included oversight of Attorney General Reno's handling of the
investigations into campaign finance matters on President Clinton and
Vice President Gore.
Without going into all the details, suffice it to say that bipartisan
agreement could not be reached within the Subcommittee on a report or
in the full Committee on issuance of subpoenas to obtain necessary
testimony.
When a subpoena was sought for FBI Director Louis Freeh, the
opposition of Senator Hatch, the Chairman of the Committee, proved
decisive. In April 2000, the Subcommittee obtained a memorandum from
Director Freeh dated December 1996 which recited a conversation between
a ranking FBI official and a ranking Department of Justice official to
the effect that the investigation of the Department of Justice would
effect the Attorney General's tenure at a time before President Clinton
had reappointed her. The Freeh memo further referenced a conversation
between Attorney General Reno and Director Freeh. The Subcommittee's
inability to subpoena and question Freeh was a significant hindrance to
pursuing that important matter.
That memorandum and other files have been inaccessible since October
with the closing of the Hart Building due to the anthrax mail. The
terrorist attack of September 11 has further hindered the finishing of
the Subcommittee's work because the FBI has, understandably, been
occupied with investigating terrorists, which preempted other pending
matters.
The Subcommittee's oversight was thwarted repeatedly by delays by the
FBI and the intransigence of the Department of Energy. Once Wen Ho Lee
was indicted, the FBI refused to provide additional information,
claiming it would hamper the prosecution. Even after Dr. Wen Ho Lee
entered a guilty plea and the prosecution was concluded, the FBI
continued to refuse to provide information on the ground that it would
impede their debriefing of Dr. Lee in obtaining the tapes which he
took.
Congressional oversight is traditionally a difficult matter because
the House and the Senate are so busy with legislative matters and it is
like pulling teeth, at best, to get cooperation from the Executive
branch. The Subcommittee's oversight efforts on Dr. Wen Ho Lee have
been even tougher. In addition to the general difficulties, the
Subcommittee's oversight efforts have been further complicated by the
change in party control in May 2001, the terrorist attack on September
11 of this year, and the departure of the Subcommittee's key
investigator Mr. Dobie McArthur. Mr. McArthur did an extraordinary job,
virtually singlehandedly conducting the oversight investigations and
writing the reports.
With the new FBI Director Robert S. Mueller, III focusing on
reorganization of the Bureau and the additional responsibilities of the
FBI occasioned by the September 11 terrorist attack, and the shift of
the Department of Justice in the focus of FBI activities, it is very
difficult to pursue further the Subcommittee's inquiry on Dr. Wen Ho
Lee, but it is my hope that at some date that might be done. Because of
the serious dereliction of the FBI's handling of the Dr. Wen Ho Lee
investigation, it will never be known beyond a reasonable doubt whether
Dr. Wen Ho Lee was a spy, although there is substantial evidence to
that effect in the McArthur reports. The publication of the reports on
Dr. Wen Ho Lee and Dr. Peter Lee will enable readers to evaluate the
seriousness of espionage in damaging our national security interests,
the failure of the Executive branch in dealing with those
investigations, the need for changes in procedures by the Department of
Justice, including the FBI, and the Department of Energy. Some
legislation, as noted in the McArthur reports, has already been enacted
as a result of the Subcommittee's oversight and further legislative
reforms are needed. Publication of these reports will promote those
objectives.
Mr. President, I ask unanimous consent that the text of the two-page
Freeh memorandum of December 1996 be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
December 9, 1996.
To: Mr. Esposito,
From: Director,
Subject: Democratic National Campaign Matter
As I related to you this morning, I met with the Attorney
General on Friday, 12/6/96, to discuss the above-captioned
matter.
I stated that DOJ had not yet referred the matter to the
FBI to conduct a full, criminal investigation. It was my
recommendation that this referral take place as soon as
possible.
I also told the Attorney General that since she had
declined to refer the matter to an Independent Counsel it was
my recommendation that she select a first rate DOJ legal team
from outside Main Justice to conduct that inquiry. In fact, I
said that these prosecutors should be "junk-yard dogs" and
that in my view, PIS was not capable of conducting the
thorough, aggressive kind of investigation which was
required.
I also advised the Attorney General of Lee Radek's comment
to you that there was a lot of "pressure" on him and PIS
regarding this case because the "Attorney General's job
might hang in the balance" (or words to that effect). I
stated that those comments would be enough for me to take him
and the Criminal Division off the case completely.
I also stated that it didn't make sense for PIS to call the
FBI the "lead agency" in this matter while operating a
"task force" with DOC IGs who were conducting interviews of
key witnesses without the knowledge or participation of the
FBI.
I strongly recommended that the FBI and hand-picked DOJ
attorneys from outside Main Justice run this case as we would
any matter of such importance and complexity.
We left the conversation on Friday with arrangements to
discuss the matter again on Monday. The Attorney General and
I spoke today and she asked for a meeting to discuss the
"investigative team" and hear our recommendations. The
meeting is now scheduled for Wednesday, 12/11/96, which you
and Bob Litt will also attend.
I intend to repeat my recommendations from Friday's
meeting. We should present all of our recommendations for
setting up the investigation--both AUSAs and other resources.
You and I should also discuss and consider whether on the
basis of all the facts and circumstances--including Huang's
recently released letters to the President as well as Radek's
comments--whether I should recommend that the Attorney
General reconsider referral to an Independent Counsel.
It was unfortunate that DOJ declined to allow the FBI to
play any role in the Independent Counsel referral
deliberations. I agree with you that based on the DOJ's
experience with the Cisneros matter--which was only referred
to an Independent Counsel because the FBI and I intervened
directly with the Attorny General--it was decided to exclude
us from this decision-making process.
Nevertheless, based on information recently reviewed from
PIS/DOC, we should determine whether or not an Independent
Counsel referral should be made at this time. If so, I will
make the recommendation to the Attorney General.
Mr. SPECTER. Mr. President, I am now going to commence with the
reading of the report on Dr. Wen Ho Lee: My understanding, after
consulting with the authorities, is that once I begin the reading of
the report, the remainder may be incorporated in the Record as if read
in full.
The PRESIDING OFFICER. And the Senator is advised he has 2\1/2\
minutes left.
Mr. SPECTER. I thank the Chair. I shall not use the full 2\1/2\
minutes.
This report augments and completes the interim report
released on March 8, 2000, regarding the Government's
investigation of espionage allegations against Dr. Wen Ho
Lee who pleaded guilty on September 13, 2000 to one felony
count of unlawful retention of national defense
information.\1\ The special Judiciary subcommittee on
Department of
[[Page S13793]]
Justice Oversight, which I chaired in the last Congress,
began oversight on the Wen Ho Lee case and several other
matters in September 1999, but suspended its review of
this case at the request of FBI Director Louis Freeh after
Dr. Lee was indicted and jailed on December 10, 1999.
I issued the interim report in March 2000 to demonstrate
the need for reforms contained in the Counterintelligence
Reform Act of 2000, which became law as Title VI of Public
Law 106-567 on December 27, 2000. That bipartisan bill, which
passed the Senate Judiciary and Select Intelligence
committees without a single vote in opposition despite
sometimes strong disagreements about certain aspects of the
Wen Ho Lee case, corrected many of the flaws in the
government's procedures for handling espionage investigations
and prosecutions. This report, consisting of an executive
summary accompanied by a detailed review of the case,
completes the oversight record on the Wen Ho Lee matter.
Highlights of the Report
The government's investigation of Los Alamos National
Laboratory (LANL) nuclear weapons scientist Dr. Wen Ho Lee
was so inept that despite scrutiny spanning nearly two
decades, both the FBI and the Department of Energy missed
repeated opportunities to discover and stop his illegal
computer activities. As a consequence of these numerous
failures, magnetic computer tapes containing some of the
nation's most sensitive nuclear secrets are now missing when
they could have been recovered as late as December 1998 and
possibly even later.
One great tragedy of the Wen Ho Lee case is that the entire
truth will likely never be known. As a consequence of an
inept investigation, the government has lost the credibility
to claim that its version of events is the absolute truth.
Dr. Lee also lacks the credibility to tell the definitive
tale of this case: he repeatedly lied to investigators,
created his own personal nuclear weapons design library
without proper authority, copied nuclear secrets to an
unclassified computer system accessible from the Internet,
and passed up several opportunities to turn his tape
collection over to the government. If the information Dr. Lee
put at risk did not fall into the wrong hands, it is a matter
of mere luck. When the nation's most sensitive nuclear
secrets are at issue, it is unacceptable that we should have
to rely on luck to keep them safe.
Among the many concerns arising from the investigation and
prosecution of Dr. Lee, the following are most significant:
The government obtained highly credible information in 1994
that Dr. Lee had helped the Chinese with computer codes and
software, but took no steps to examine his computer. Had Dr.
Lee's computer been examined, his illegal downloads of some
of the nation's most sensitive nuclear weapons data to an
unclassified computer system accessible from the Internet
could have been detected and stopped.
The manner in which the FBI relied almost completely on the
Department of Energy's Administrative Inquiry (AI) throughout
the investigation which began in 1996, rather than developing
an independent investigative plan, caused an inappropriate
focus on the alleged loss of W-88 warhead design information
to the exclusion of all else. The FBI never questioned how
the suspected loss of the W-88 information related to the
codes and software help that Dr. Lee was suspected of having
provided to the PRC. The ongoing debate over whether the AI's
underlying assumptions--namely that rapid advances in the PRC
weapons program in the early 1990s resulted from their
acquisition of U.S. weapons design information, and that the
loss most likely occurred from Los Alamos--is of secondary
importance. The mere fact that the PRC had obtained
classified nuclear weapons information should have been
sufficient to trigger a thorough investigation, but the FBI's
investigation was anything but thorough.
The Department of Justice was wrong to reject the 1997
request by the FBI for electronic surveillance under the
Foreign Intelligence Surveillance Act. Had the request been
permitted to go forward to the court, Dr. Lee's illegal
downloading could have been detected and halted in 1997. The
Department of Justice's own internal review, conducted by
Assistant U.S. Attorney Randy Bellows, concluded that the
request should have been approved.
The Department of Energy was wrong to allow Wackenhut
contract polygraph examiners to administer a polygraph to Dr.
Lee on December 23, 1998. The Wackenhut contractors
incorrectly reported that Dr. Lee passed the polygraph,
prompting the FBI to nearly shut down its investigation at a
time when scrutiny of Dr. Lee should have been intensified.
Dr. Lee has told investigators the computer tapes that are
now missing were in his office on December 23. Had the FBI
conducted its investigation consistent with the fact that Dr.
Lee did not pass the polygraph, the tapes could have been
recovered.
The nuclear secrets that Dr. Lee mishandled were correctly
described by the government as extremely sensitive. Dr. Lee's
actions in downloading these files onto an unclassified
computer system accessible from the Internet, and later onto
portable magnetic tapes, constituted a serious threat to the
national security.
Allegations that Dr. Lee was targeted for investigation and
prosecution as a result of "ethnic profiling" are
unfounded. The repeated investigations of Dr. Lee resulted
from reasonable suspicions raised by Dr. Lee's own conduct.
Moreover, there is absolutely no evidence that Dr. Lee's
ethnicity was a factor in the decision to prosecute Dr. Lee
or to hold him in unusually strict pretrial confinement.
The government's harsh treatment of Dr. Lee after his
arrest on December 10, 1999, including putting him in
solitary confinement and requiring him to be manacled does,
however, raise troubling questions. The government's claim
that Dr. Lee was such a threat he had to be held in pretrial
confinement under very strict conditions is inconsistent with
the long delay from March to December 1999--when the
government first learned of the downloaded secrets until he
was arrested--and the acceptance of a plea agreement in
September 2000 by which Dr. Lee was released with no
monitoring whatsoever, and which is only marginally better
than it could have had in December 1999, at least in terms of
finding out what happened to the tapes. Taken together with
the many missed opportunities to detect Dr. Lee's illegal
computer activity and recover the tapes, the government's
handling of the plea agreement raises questions as to whether
the harsh tactics were intended to coerce a confession.
The government's claim that Dr. Lee presented such a danger
that he had to be prohibited from communicating is severely
undercut by its failure to even seek any type of electronic
surveillance on him even after the existence of the tapes was
known. If the government was truly concerned that Dr. Lee
could potentially alter the global strategic balance through
phrases as innocuous as "Uncle Wen says hello," or might
send a signal to a foreign intelligence service to extract
him, it should have sought to monitor his communications,
but it did not.
Some of the most controversial and misguided steps in the
case appear to have been motivated more by a desire to
protect the affected agency's image than the national
security. This is particularly true of the Department of
Energy's decision to administer a polygraph to Dr. Lee in
December 1998 when it seemed likely that the House's Cox
Committee report \3\ was going to expose the many missteps
that had occurred up to that point.
The full report which follows addresses each of these
matters in detail, as well as several other important aspects
of the case.
Report on the Government's Handling of the Investigation and
Prosecution of Dr. Wen Ho Lee
The government's conduct in this case is so filled with
major breakdowns by every agency involved that it almost
defies analysis and makes determining responsibility for the
failures a very complicated matter. This report attempts to
sort out what went wrong and why, and to determine how such
mistakes can be avoided in future cases. It includes some new
information which has not been publicly disclosed before, and
provides a thorough review of the facts that are known. For
ease of reading, it is organized in roughly chronological
order, with the exception being a section in the beginning
which describes the key elements of the government's case
against Dr. Lee.
The case against Dr. Wen Ho Lee
Most Americans had never heard of Dr. Wen Ho Lee before he
was fired from Los Alamos National Laboratory in New Mexico
on March 8, 1999. The first vague hints of the story that
would explode on the national scene in March 1999 had come in
a January 7, 1999, Wall Street Journal article by Carla Anne
Robbins, which alleged that "China received secret design
information for the most modern U.S. nuclear warhead" and
quoted unnamed U.S. officials as saying that the "top
suspect is an American working at a U.S. Department of Energy
laboratory." \4\ The WSJ article went on say that the loss
of information related to the W-88 warhead was the "most
significant in a 20-year espionage effort by Beijing that
targeted the U.S. nuclear weapons laboratories," and that
"China was given general, but still highly secret,
information about the warhead's weight, size and explosive
power, and its state-of-the-art internal configuration, which
allowed designers to minimize size and weight without losing
power." \5\ The article further noted that the investigation
of the suspected loss of W-88 information was the "third
major Chinese espionage effort uncovered at the U.S. labs
over the last two decades," and was a key part of the work
of the special House committee, known as the Cox Committee,
that was reviewing American high-tech transfers to China.\6\
The story of suspected espionage at LANL remained dormant
after the Robbins article until the New York Times published
a March 5, 1999 piece by James Risen and Jeff Gerth, titled
"Breach at Los Alamos: A Special Report." The article did
not name Dr. Lee, but raised the profile of the case by
quoting unnamed administration officials as saying that
"working with nuclear secrets stolen from an American
Government laboratory, China has made a leap in the
development of nuclear weapons: the miniaturization of its
bombs. . ." \7\ The Risen and Gerth story put a political
spin on the case, quoting "some American officials" as
asserting that "the White House sought to minimize the
espionage issue for policy reasons." The senior National
Security Council official who handled the case, Gary
Samore, denied the allegations, telling the NYT reporters
that "The idea that we tried to cover up or downplay
these allegations to limit the damage to U.S.-Chinese
relations is absolutely wrong." \8\
[[Page S13794]]
Risen and Gerth then explained that their own investigation
had revealed that "throughout the Government, the response
to the nuclear theft was plagued by delays, inaction and
skepticism--even though senior intelligence officials
regarded it as one of the most damaging spy cases in recent
history." \9\ In support of their charges, they cited
disagreements between former DOE intelligence chief Notra
Trulock, who was the main proponent of the view that Chinese
weapons advances were attributable to espionage, and other
senior administration officials, including former Acting
Energy Secretary Elizabeth Moler, who was said to have
ordered Trulock not to brief the Cox Committee "for fear
that the information would be used to attack the President's
China policy." \10\
Ms. Moler denied the allegations that she had interfered
with Mr. Trulock's congressional testimony, but the die had
been cast so that as the story unfolded over the following
months there was always an underlying hint that the Clinton
Administration had ignored or downplayed an important
espionage case to avoid criticism or complications with its
China policy.
On March 8, 1999, Dr. Lee was publicly named for the first
time in an Associated Press story by Josef Hebert. Quoting a
statement from the Department of Energy (which did not name
Dr. Lee), Hebert wrote that Dr. Lee had been fired for
"'failing to properly safeguard classified material' and
having contact with `people from a sensitive country"'.\11\
Shortly thereafter, the New York Times ran another article by
James Risen, who had interviewed Energy Secretary Bill
Richardson. According to Risen, Richardson told him that Dr.
Lee had been fired on March 8 "for security breaches after
the FBI questioned him in connection with China's suspected
theft of American nuclear secrets. . ." \12\ Secretary
Richardson also acknowledged that Dr. Lee had been questioned
for three days, but had "stonewalled" during the
questioning.\13\
Through the spring and summer, details of the case dribbled
out as the press continued its investigation into the matter
and several congressional committees conducted oversight on
the case. Among the new details to emerge were allegations
totally unrelated to the W-88 matter, including charges that
Dr. Lee had transferred massive amounts of classified
nuclear data to the unclassified portion of the LANL
computer system and later onto portable magnetic tapes,
which were thought to be missing.
The Cox Committee released its unclassified report on May
25, 1999, which did not mention Dr. Lee by name but clearly
referred to his case. The President's Foreign Intelligence
Advisory Board released its own review of security at the
national labs in June, concluding that the labs did wonderful
science but were lousy on security matters.\15\ In August,
Senators Thompson and Lieberman of the Governmental Affairs
Committee released a special statement, saying:
"This is a story of investigatory missteps, institutional
and personal miscommunications, and--we believe--legal and
policy misunderstandings and mistakes at all levels of
government. The DOE, FBI, and DOJ must all share the blame
for our government's poor performance in handling this
matter." \16\
By September 1999, the government had finally separated the
W-88 matter from the issue of Dr. Lee's illegal file
downloads, and had started a new investigation aimed at
finding out how the PRC had obtained the W-88 information it
was known to possess. It did so quietly, without publicly
acknowledging that Dr. Lee was apparently no longer a suspect
in the loss of the W-88 information.
Also in late September 1999, the Senate Judiciary
subcommittee on Department of Justice Oversight was
organized, with a mandate to examine: technology transfer to
the PRC, including the Wen Ho Lee case, the Peter Lee case,
and the Loral/Hughes matter; the facts surrounding the FBI's
use of pyrotechnic tear gas rounds during the 1993 standoff
at Waco, which had recently been confirmed in a special
report of the Texas Rangers; and the Department of Justice's
handling of campaign finance investigations and prosecutions
from the 1996 presidential campaign.\17\
The subcommittee began an expeditious review of the Wen Ho
Lee case and the other matters within its jurisdiction, and
sent out letters to witnesses on December 7, 1999, for a
hearing on December 14, which would examine two issues: 1)
the details of a December 23, 1998 polygraph exam that had
been administered to Dr. Lee, and 2) the relationship between
the Lees and the government.
On December 10, 1999, Dr. Lee was arrested and charged in a
59-count indictment \18\ of mishandling classified nuclear
weapons data, prompting FBI Director Freeh to write to me,
asking that I postpone hearings on the case. In view of the
extraordinary circumstances of the case and Director Freeh's
unprecedented request, which he reiterated to me and Senator
Torricelli in a meeting on December 14, I agreed to
postpone hearings on the case, but to continue a review of
government documents unrelated to the criminal case, as
well as documents that came into the public domain as a
result of the government's prosecution of Dr. Lee.
The indictment of Dr. Lee referred to a series of tapes Dr.
Lee made from 1993 through 1997, during which time he
collected SECRET and CONFIDENTIAL Restricted Data \19\ into a
directory on the classified computer system at LANL, then
transferred the information onto the unclassified portion of
the LANL computer system and ultimately onto a series of
portable magnetic computer tapes, each capable of holding 150
megabytes of information. All told, the information he
collected and transferred to portable magnetic tapes was more
than 800 megabytes, the equivalent of over 400,000 pages of
data.\20\
At the bail hearing of Dr. Lee on Dec. 13, 1999, the key
government witness, Dr. Stephen Younger, Associate Laboratory
Director for Nuclear Weapons at Los Alamos, testified as
follows about the nuclear secrets Dr. Lee was accused of
mishandling:
"These codes, and their associated data bases, and the
input file, combined with someone that knew how to use them,
could, in my opinion, in the wrong hands, change the global
strategic balance." \21\
It would be hard, realistically impossible, to pose a more
severe risk than to "change the global strategic balance."
Dr. Younger further testified that:
"They enable the possessor to design the only objects that
could result in the military defeat of America's conventional
forces . . . . They represent the gravest possible security
risk to . . . the supreme national interest." \22\
A "military defeat of America's conventional forces" and
"the gravest possible security risk to . . . the supreme
national interest" constitute threats of obvious enormous
importance.
At this same bail hearing, when the judge seemed to be
leaning toward a restrictive form of house arrest, Mr. Kelly
warned that Dr. Lee could be "snatched and taken out of the
country" by hostile intelligence services.\23\ The lead FBI
Agent then on the case, Robert Messemer, told the judge to
expect "a marked increase in hostile intelligence service
activities both here in New Mexico and throughout the United
States in an effort to locate those tapes," and warned that
"our surveillance personnel do not carry firearms, and they
will be placed in harm's way if you require us to maintain
this impossible task of protecting Dr. Lee." \24\
The government made these representations in a
successful effort to deny Dr. Lee bail and he remained in
pretrial confinement for more than nine months. By
September 13, 2000, when Judge Parker approved the plea
agreement under which Dr. Lee would plead guilty to one of
the original fifty-nine felony counts and accept a
sentence of "time-served" at 278 days, the government's
case against Dr. Lee appeared to lie in tatters, as did
its credibility.
Judge Parker's statements at the plea hearing were a
stunning rebuke of the government when he said:
". . . I believe you were terribly wronged by being held
in custody pretrial . . . under demeaning, unnecessarily
punitive conditions. I am truly sorry that I was led by our
Executive Branch of government to order your detention last
December.
"Dr. Lee, I tell you with great sadness that I feel I was
led astray last December by the Executive Branch of our
government through its Department of Justice, by its Federal
Bureau of Investigation and by its United States Attorney for
the District of New Mexico. . ."\25\
After praising many of the lawyers on both sides of the
case, Judge Parker made clear where he felt the
responsibility for the government's mistakes should lay:
"It is only the top decision makers in the Executive
Branch, especially the Department of Justice and the
Department of Energy and locally, during December, who have
caused embarrassment by the way this case began and was
handled. They did not embarrass me alone. They have
embarrassed our entire nation and each of us who is a citizen
of it." \26\
When Dr. Lee walked free, convicted of a single felony
count out of 59 and sentenced to time served, the nation was
stunned by the government's rapid reversal. The government
had argued even as late as September 1, 2000 that Dr. Lee was
so serious a threat to the national security that he had to
be held in solitary confinement under extraordinarily
stringent conditions, yet less than two weeks later, he was
allowed to walk out of jail a free man. Even President
Clinton, who strangely acted as though it was some alien
entity that had done such a sharp turnabout rather than an
agency within his own administration, seemed stunned by the
change of position. On the day after Dr. Lee was released,
President Clinton told reporters at the White House:
"The whole thing was quite troubling to me, and I think
it's very difficult to reconcile the two positions that one
day he's a terrible risk to the national security and the
next day they're making a plea agreement for an offense far
more modest than what had been alleged." \27\
It may remain impossible to reconcile the two positions,
but it is necessary to try, if for no other reason than to
help Americans understand why the government acted as it did
in the Wen Ho Lee case. Although it may not be sufficient to
restore the public's confidence in the agencies involved in
this case, a thorough examination of the facts such as that
attempted here is a necessary step in that direction.
The Investigations of Dr. Wen Ho Lee
The purpose of counterintelligence is to identify
suspicious conduct and then pursue an investigation to
prevent or minimize access by foreign agents to our
secrets. From a counterintelligence perspective, the
government's handling of the Wen Ho Lee matter
[[Page S13795]]
has been an unmitigated disaster. The investigation of Dr.
Lee since 1982 has been characterized by a series of
errors and omissions by the Department of Energy and the
Department of Justice, including the FBI, which have
permitted Dr. Lee to threaten U.S. supremacy by putting at
risk information that could change the "global strategic
balance."
While Dr. Lee, of course, must bear primary responsibility
for any damage that might result to national security from
his mishandling of our nuclear secrets, those officials in
the DOE, the FBI and, to a lesser degree, the DOJ, who
participated in the investigation of Dr. Lee must accept
responsibility for their own failure to detect and put a stop
to Dr. Lee's illegal computer activity. It would be one thing
if an individual who had never shown up on the
counterintelligence radar scope was later found out, but Dr.
Lee was under active investigation during the very time he
was engaged in illegal computer downloads, yet his activities
were not detected.
In fact, Dr. Lee was investigated on multiple occasions
over seventeen years, but none of these investigations--or
the security measures in place at Los Alamos--came close to
discovering and preventing Dr. Lee from putting the national
security at risk by placing highly classified nuclear secrets
on an unsecure system where they could easily be accessed by
even unsophisticated hackers.\18\ It is difficult to
comprehend how officials entrusted with the responsibility
for protecting our national security could have failed to
discover what was really happening with Dr. Lee, given all
the indicators that were present.
The 1982-1984 Investigation
Dr. Wen Ho Lee was born in Nantou, Taiwan, in 1939. After
graduating from Texas A&M University with a Doctorate in
1969, he became a U.S. citizen in 1974, and began working at
Los Alamos National Laboratory in applied mathematics and
fluid dynamics in 1978.\20\ The X-Division, where Dr. Lee
worked from 1982 until 1998, has the highest level of
security of any division at LANL. It is responsible for the
design of thermonuclear weapons, and Dr. Lee was part of a
team working on five Lagrangian mathematical codes, also
known as "source codes", used in weapons development. Dr.
Lee's wife, Sylvia, also worked at LANL from November 1980
until June 1995. The last position she held was "Computer
Technician," and she held a Top Secret clearance from 1991
through 1995.\30\
The FBI first became concerned about Dr. Lee as a result of
contacts he made with a suspected PRC intelligence agent in
the early 1980s. On December 3, 1982, Dr. Lee called a former
employee of Lawrence Livermore National Laboratory (LLNL) who
was suspected of passing classified information to the
Peoples Republic of China (PRC). This call was intercepted
pursuant to a FISA court authorized wiretap in another FBI
espionage investigation. After introducing himself, Dr. Lee
stated that he had heard about the Lawrence Livermore
scientist's "matter" and that Lee thought he could find out
who had "squealed" on the employee.\31\ Based on the
intercepted phone call, the FBI opened an espionage
investigation on Dr. Lee.
For the next several months the FBI investigated Dr. Lee,
with much of the work being done under the guise of the
periodic reinvestigation required for individuals with
security clearances. On November 9, 1983, the FBI interviewed
Dr. Lee. Before being informed that the FBI had intercepted
his call to the Lawrence Livermore employee, Lee stated that
he had never attempted to contact the employee, did not know
the employee, and had not initiated any telephone calls to
him. These representations were patently false.\32\ Dr. Lee
offered during the course of this interview to assist the FBI
with its investigation of the other scientist.
On December 20, 1983 Dr. Lee was again interviewed by the
FBI,\33\ this time in California. During this interview, Lee
explained that he had been in contact with Taiwanese nuclear
researchers since 1977 or 1978, had done consulting work for
them, and had sent some information that was not classified
but that should have been cleared with DOE officials. He
tried to explain that he had contacted the subject of the
other investigation because he thought this other scientist
was in trouble for doing the same thing that Lee had been
doing for Taiwan.\34\ After this interview, the FBI sent Dr.
Lee to meet with the espionage suspect.
On January 24, 1984, Dr. Lee took an FBI polygraph
examination which included questions about passing classified
information to any foreign government, Lee's contacts with
the Taiwanese Embassy, and his contacts with the LLNL
scientist. Although the FBI has subsequently contended that
Dr. Lee's answers on this polygraph were satisfactory, there
remained important reasons to continue the investigation. His
suspicious conduct in contacting the Lawrence Livermore
scientist and then lying about it, the nature of the
documents that he was sending to the Taiwanese Embassy, and
the status of the person to whom he was sending those
documents were potential danger signals. Although not
classified, the documents Dr. Lee was passing to Taiwan's
Coordination Council of North America were subject to
Nuclear Regulatory Commission export controls. They were
specifically stamped "no foreign dissemination."
According to testimony of FBI Special Agent Robert
Messemer at a special hearing on December 29, 1999, FBI
files also contain evidence of other
"misrepresentations" that Dr. Lee made to the FBI in
1983-1984 which have raised "grave and serious concerns"
about Dr. Lee's truthfulness.\36\ Notwithstanding these
reasons for continuing the investigation, the FBI closed
its initial investigation of Lee on March 12, 1984.\37\
Although the FBI's 1982-1984 investigation was generally
well run, three areas of concern are worth noting. First, the
FBI should have coordinated more closely with the Department
of Energy. When initially contacted by the FBI in 1982, the
DOE's Office of Security recommended that Dr. Lee be removed
from access due to the sensitivity of the area in which he
worked. Had the DOE security official's instincts been
followed, Dr. Lee would not have been able to put at risk,
years later, the massive volume of nuclear data that he
ultimately did.
The second area of concern is that the FBI closed the
investigation despite several troubling indicators. As noted
previously, FBI Special Agent Messemer mentioned several
misrepresentations that Dr. Lee made to the FBI which were
relevant to his truthfulness. Two of these misrepresentations
stand out as particularly important. First, Dr. Lee learned
about the LLNL scientist's situation from a mutual friend
during an October 1982 visit to LLNL.\38\ Second, and more
importantly, upon learning of the LLNL scientist's
predicament, Dr. Lee immediately attempted to call his point
of contact at the Coordination Council of North America (the
equivalent of the Taiwanese Embassy in Washington, DC).\39\
That Dr. Lee would attempt to contact a foreign embassy
seeking help for a fellow scientist should have raised
serious questions about his trustworthiness.
Unfortunately, the FBI did not discover this until after
they had already made a decision to use him in the
investigation of the LLNL scientist. Had the FBI been more
cautious in assessing Dr. Lee's trustworthiness in the first
place, it would likely not have used him in the investigation
of the other scientist, and would therefore have been in a
better position to facilitate his termination from LANL or,
at the very least, the removal of his security clearance.
Director Freeh recently confirmed that the FBI had made no
recommendation to the DOE regarding the removal of Dr. Lee's
clearance following the 1982-1984 investigation.\40\
The second element of Dr. Lee's conduct in the 1982-1984
investigation that deserved greater attention from the FBI
than it got is the status of the individual to whom Dr. Lee
was sending the information at the CCNA. This individual was
known to the FBI as an intelligence collector (although it
remains unclear as to whether Dr. Lee had any reason to be
aware of that). The FBI did take the necessary steps to learn
how Dr. Lee came to know this individual, but it did not give
sufficient weight to the individual's status as an
intelligence collector.
The third and final area of concern about the FBI's
handling of the 1982-1984 investigation relates to the FBI's
reporting of Dr. Lee's assistance in the investigation of the
LLNL scientist, which has been inconsistent. Some documents,
apparently including information provided to Attorney General
Reno in preparation for her June 8, 1999 appearance before
the Judiciary Committee in closed session, indicate that the
FBI did not use Dr. Lee in its investigation. The final draft
of the 1997 request for FISA coverage on Dr. Lee, in
recounting this episode, states flatly that while Dr. Lee
offered to help the FBI in its investigation of the LLNL
scientist, the FBI did not use him.\41\ Contemporaneous FBI
records of the 1982 investigation, however, indicate that not
only did Dr. Lee assist the FBI with its investigation of the
other scientist, but that the result was far better than had
been anticipated.
The failure to mention the assistance provided by Dr. Lee
in 1983 when requesting FISA coverage in 1997 is troubling
because it has the effect of presenting an incomplete picture
of the initial investigation of Dr. Lee. Judgements regarding
whether an individual is acting as an agent of a foreign
power should be made in consideration of the totality of the
circumstances, and the FBI's decision to use Dr. Lee in the
investigation of the LLNL scientist is an important element
of the total circumstances. If the FBI trusted Dr. Lee enough
to use him in the investigation of the LLNL scientist, that
fact should have been included in the FISA request. The
failure to mention that fact gives an incomplete impression,
which is inappropriate in these matters.
It is likely that the FBI's incorrect characterization of
Dr. Lee's 1982-1984 activities was merely an inadvertent
oversight and was not an attempt to conceal the assistance he
had provided. For example, the FBI did not make any effort to
conceal or deny Mrs. Lee's assistance to the government.
While the FBI should have acknowledged Dr. Lee's assistance
in the FISA request, the totality of Dr. Lee's conduct in
1982-1984 was suspicious and was directly relevant on a
probable cause determination.
The 1982-1984 investigation of Dr. Lee represents a missed
opportunity to protect the nation's secrets. Had the matter
been handled properly, Dr. Lee's clearance and access would
most likely have been removed long ago, before he was able to
put the global strategic balance at risk.
The 1994-November 2, 1995, Investigation of Dr. Lee
This investigation of Dr. Lee was initiated based upon the
discovery that he was well
[[Page S13796]]
acquainted with a high-ranking Chinese nuclear scientist who
visited Los Alamos as part of a delegation in 1994,\42\ and
that he was alleged to have helped Chinese scientists with
codes and software. Dr. Lee had never reported meeting this
scientist, which he was required to do by DOE regulations, so
his relationship with this person aroused the FBI's concern.
Unclassified sources have reported that Dr. Lee was greeted
by "a leading scientist in China's nuclear weapons program
who then made it clear to others in the meeting that Lee had
been helpful to China's nuclear program." \43\ In concert
with the 1982-1984 investigation, Dr. Lee's undisclosed
relationship with this top Chinese nuclear scientist should
have alerted the FBI and the DOE of the imperative for
intensified investigation and reconsideration of his access
to classified information. Instead, this FBI investigation
was deferred on November 2, 1995, because Dr. Lee was by then
emerging as a central figure in the Department of Energy's
Administrative Inquiry,\44\ which was developed by a DOE
counterintelligence expert in concert with a seasoned FBI
agent who had been assigned to DOE for the purposes of the
inquiry. (The DOE Administrative Inquiry was given the code
name Kindred Spirit.\45\) The investigation of Dr. Lee was
essentially dormant from November 1995 until May 1996, when
the FBI received the results of the DOE Administrative
Inquiry and opened a new investigation of Dr. Lee on May 30,
1996.
It is difficult to understand why the FBI would suspend the
investigation in 1995, even to wait for the Kindred Spirit
Administrative Inquiry, when the issues that gave rise to
1994-1995 investigation remained valid and unrelated to the
Kindred Spirit investigation. The key elements of the 1994-
1995 investigation are described in the 1997 Letterhead
Memorandum (LHM) which was prepared to support the request
for a FISA search warrant. Specifically, the LHM describes
the unreported contact with the top nuclear scientist,\46\
and it makes reference to the "PRC using certain
computational codes . . . which were later identified as
something that [Lee] had unique access to." \47\ And,
finally, the LHM states that "the Director subsequently
learned that Lee Wen Ho had worked on legacy codes." Given
these allegations, it was a serious error to allow the
investigation to wait for several months while the DOE AI
was being completed. This deferral needlessly delayed the
investigation and left important issues unresolved.
In addition to information known to the FBI which required
further intensified investigation and not a deferred
investigation on November 2, 1995, the Department of Energy
was incredibly lax in failing to understand and pursue
obvious evidence that Dr. Lee was downloading large
quantities of classified information to an unclassified
system. The sheer volume of Dr. Lee's downloading showed up
on a DOE report in 1993.\49\ Cheryl Wampler, from the Los
Alamos computer office, has testified that the NADIR system,
short for Network Anomaly Detection and Intrusion Recording,
flagged Dr. Lee's massive downloading in 1993.\50\ This
system is specifically designed to create profiles of
scientists' daily computer usage so it can detect unusual
behaviors. A DOE official with direct knowledge of this
suspicious activity failed to act on it, or to tell DOE
counterintelligence personnel or the FBI. Based on its
design, the NADIR system would have continued to flag Dr.
Lee's computer activities in 1994 as being unusual, but no
one from DOE took any action to investigate what was going
on.\51\ And it wasn't mentioned to the FBI or DOE's counter-
intelligence personnel.
In response to written questions after a September 27, 2000
hearing on the Wen Ho Lee matter, DOE officials provided
information to put the NADIR alerts in perspective. According
to DOE, an average of 180 users per week exceeded the
thresholds established by the system, and were flagged just
like Dr. Lee.\52\ While 180 is a substantial number of
individuals, it would not be impossible to devise a system by
which counterintelligence personnel can review these records
to determine whether or not any individuals who are already
under investigation have been identified by the system.
In response to another question about what happened to the
NADIR records for 1994 (which, according to testimony from
Ms. Wampler are missing), DOE replied simply that:
". . . in 1993 NADIR was a new and developing technique
and many other scientists in addition to Dr. Lee were
transferring data due to a change in the computer environment
at that time. During the 1993-1994 timeframe, Dr. Lee was not
a suspect." \53\
Apart from the fact that the DOE's response is incorrect--
Dr. Lee was a suspect beginning in 1994--the records should
have been available for review when the FBI began its
investigation. The fact that the DOE was able to confirm that
Dr. Lee was flagged by NADIR in 1993 proves that point, but
it does not explain the absence of the 1994 NADIR records.
Had the FBI bothered to check with the DOE computer
personnel, and there should have been no doubt that Dr.
Lee had no expectation of privacy with regard to a system
designed to identify abnormal system operations, Dr. Lee's
illegal computer downloads could have been detected and
halted.
The DOE computer and counterintelligence personnel could
also have been more helpful in this situation.\54\ Had DOE
transmitted this information to the FBI, and had the FBI
acted on it, Dr. Lee could have and should have been stopped
in his tracks in 1994 on these indicators of downloading. The
full extent of the importance of the information that Dr. Lee
was putting at risk through his downloading was encapsulated
in a document the Government filed in December 1999 as part
of the criminal action against Dr. Lee:
"[I]n 1993 and 1994, Lee knowingly assembled 19
collections of files, called tape archive (TAR) files,
containing Secret and Confidential Restricted Data relating
to atomic weapon research, design, construction, and testing.
Lee gathered and collected information from the secure,
classified LANL computer system, moved it to an unsecure,
"open" computer, and then later downloaded 17 of the 19
classified TAR files to nine portable computer tapes." \55\
These files, which amounted to more than 806 megabytes,
contained information that could do vast damage to the
national security.
The end result of these missteps and lack of communication
was that, during some of the very time that the FBI had an
espionage investigation open on Dr. Lee resulting from his
unreported contacts with a top Chinese scientist and the
realization that the Chinese were using codes to which Dr.
Lee had unique access, DOE computer personnel were being
warned by the NADIR system that Dr. Lee was moving
suspiciously large amounts of information around, but were
ignoring those warnings and were not passing them on to the
FBI. At the same time, FBI personnel were taking no steps to
investigate Dr. Lee's computer activities, even when one of
the key allegations that prompted scrutiny of him in 1994 was
that he had helped the Chinese with codes and software.
The near perfect correlation between the allegations which
began the 1994-1995 investigation and Dr. Lee's computer
activities is stunning. The codes the Chinese were known to
be using were computer codes, yet FBI and DOE
counterintelligence officials never managed to discover these
massive file transfers. Where, if not on his computer, were
they looking? And, as for the lab computer personnel who saw
but ignored the NADIR reports, what possible explanation can
there be for a failure to conduct even the most minimal
investigation?
FBI and DOE failures in 1994-1995 represented the loss of a
golden opportunity to detect and halt Dr. Lee's illegal
computer activities. In the 1995-1996 period, another
opportunity to find and fix the problem presented itself in
the form of the DOE Administrative Inquiry (AI).
Unfortunately, the opportunity represented by the AI was
never fully realized.
The Investigation Renewed, May 30, 1996 to August 12, 1997
As noted previously, the investigation of Dr. Lee was
dormant from November 2, 1995 until May 30, 1996. The
investigation had been shut down to await the arrival of
DOE's Administrative Inquiry, which was presented on May 28,
1996. With the DOE AI in hand, the FBI resumed its
investigation of the Lees. To understand that investigation,
however, it is first necessary to review the AI.
The Kindred Spirit Administrative Inquiry
The public perception of the government's actions in the
Wen Ho Lee case, particularly with regard to charges of so-
called "ethnic profiling", has been shaped by a
misunderstanding of the Department of Energy's Administrative
Inquiry (AI), code named "Kindred Spirit". Although he was
not its author, former DOE intelligence chief Notra Trulock
has been closely associated with this document, in large
measure because he was instrumental in commissioning the
DOE's Kindred Spirit Analytical Group (KSAG) which spawned
the AI, and he later forcefully advocated the position that
substantial espionage had occurred and that something needed
to be done about it. The KSAG was formed in 1995 when
scientists studying Chinese nuclear developments became
concerned about certain developments in the level of
sophistication of the PRC's weapons. During the summer of
1995, these concerns were fueled when an individual provided
to the U.S. government a document, subsequently known as the
"walk-in" document, which contained highly classified
details of some of our most advanced nuclear warheads.
Recent attempts to re-examine the premise of the Kindred
Spirit AI and to question its role in the FBI's subsequent
investigation of the same name have fostered the perception
that the DOE's AI was largely to blame for the FBI's
misdirected investigation, which focused almost exclusively
on Dr. and Mrs. Lee, the loss of the W-88 information, and
the Los Alamos lab, when a much broader investigation was
required.
The perception that DOE's AI was the weakest link in the
FBI's Kindred Spirit investigation is unfortunate because it
obscures a far more complex set of circumstances. This
perception has also unfairly undermined the
government's credibility on the ethnic/racial profiling
question and seriously damaged Notra Trulock's reputation
and career. A more complete public record on this matter
may be helpful in repairing some of the damage.
In an October 29, 1999 letter, Energy Secretary Bill
Richardson reacted to the FBI's attempts to lay the blame for
its problems in the Kindred Spirit investigation on the
Administrative Inquiry:
". . . I think there has been a tendency to overstate the
adverse influence that DOE's technical analysis and
preliminary investigative support had on the conduct of the
[[Page S13797]]
KINDRED SPIRIT investigation. There also has been, in my
opinion, an over-emphasis on the degree to which DOE input
served to limit the FBI's investigative work. . . . [T]he
fact is that all of the decisions to limit the scope of the
investigation were clearly, mutually agreed-upon by DOE and
the FBI, based on security and other concerns." \57\
In this regard, Secretary Richardson is correct. The FBI's
failures in the Wen Ho Lee investigation should not be blamed
on the AI. The DOE is, by law, limited in the scope of what
it can do. The FBI could have and should have looked at the
AI as a starting point. Instead, the FBI case agents seemed
to think that the DOE investigators had done their job for
them, and never seriously looked at the premise of the AI and
its relationship to Dr. Lee's activities.
The facts of the AI and the controversy surrounding it can
be stated in an unclassified fashion as follows:
(A) The U.S. government concluded in 1995 that the PRC had
made remarkable progress in its nuclear weapons program in
the early 1990s.
(B) The government also learned in 1995 that the PRC had
obtained certain classified nuclear weapons design
information on the W-88 warhead and other weapons.
There is widespread agreement that both A and B are true:
the Chinese made rapid advancements in their nuclear weapons
program in the early 1990s, and they obtained classified
nuclear weapons design information sometime before 1995. The
controversy arises over whether there is any causal
relationship between the two facts. One school of thought--
embodied in the Kindred Spirit AI--holds that the Chinese
advances occurred because they obtained classified U.S.
nuclear weapons design information, particularly that related
to the W-88. The contrary school of thought holds that while
both A and B may be true, there is no evidence that the
Chinese nuclear advances resulted from their acquisition of
U.S. nuclear weapons design information.
Investigations predicated upon these two schools of thought
would take remarkably divergent paths. If one took as a
starting point, as did the authors of the AI, the belief that
the PRC's nuclear weapons design advances were in large
part attributable to espionage against the United States,
one would be looking for the wholesale transfer of W-88
design information. The alternative view--that the PRC's
nuclear weapons advances could have occurred independently
of the acknowledged acquisition of classified U.S. weapons
data in the "walk-in" document--would lead to an
investigation focused on the specific bits of classified
information the Chinese were known to have obtained, not
only about the W-88 but about other weapons systems as
well. The former theory paints a picture consistent with a
single act of espionage, conducted by a single individual
transferring information from a specific place. The latter
theory forces a broader review, implicitly acknowledging
that the information could involve multiple transfers from
multiple sources, quite possibly by numerous individuals.
While the debate over whether or not the PRC's nuclear
weapons advances resulted from espionage is important from
both a counterintelligence and an intelligence point of view,
it should not have been the determinative factor in deciding
how to conduct this espionage investigation. The threshold
for required action by the FBI is met on the basis of fact B,
irrespective of fact A and any relationship between the two
elements. Section 811 of the Intelligence Authorization Act
of 1995, enacted to improve interagency coordination on
espionage investigations in the wake of the Aldrich Ames spy
case, requires an agency to notify the FBI when it becomes
aware that espionage may have occurred. Proof that the PRC
had obtained classified U.S. nuclear weapons design
information became available in the summer of 1995 in the
form of the "walk-in" document, which was really a large
cache of documents delivered to the U.S. government by a
Chinese national. The information in the "walk-in" document
was sufficient to trigger the requirements of section 811 and
to prompt an investigation by the FBI.
The DOE could have satisfied its statutory obligations
under section 811 simply by notifying the FBI of its view
that certain information in the "walk-in" document was not
in the public domain, had not been authorized for transfer to
the PRC, and was therefore likely in the possession of the
PRC as a result of espionage. In retrospect, it might have
been better if they had done so. The conclusions of the AI,
while accompanied by many caveats that the DOE had been
limited in its ability to conduct the investigation and that
further review was required, were adopted almost wholesale by
the FBI and formed the basis of the FBI's own Kindred Spirit
espionage investigation.
The Bellows Report is highly critical of the DOE AI,
concluding essentially that the DOE overstated the degree of
consensus that existed on the question of espionage as a
causal factor in the PRC's nuclear weapons advances, thereby
establishing a faulty predicate for the entire investigation.
The fact that the DOE was already concerned that the PRC had
detonated what appeared to be an advanced nuclear weapon when
the information in the "walk-in" document became available
may have led some members of the DOE scientific review panel,
called the Kindred Spirit Analytical Group (KSAG), to give
undue weight to the possibility of a causal link between the
PRC's weapons design advances and the information in the
"walk-in" document. That is a question about which
reasonable individuals may disagree--even among the members
of the KSAG there was not unanimity on this point \58\--but
there is no doubt that the AI which flowed from the KSAG was
built upon the belief that the PRC's design advances were the
result of espionage. There can also be no doubt that the AI
cast strong suspicion on the Lees.
Any fair reading of the Administrative Inquiry makes clear
that its authors (a DOE counterintelligence official and an
FBI agent seconded to the DOE to assist with the AI)
considered Wen Ho and Sylvia to be the prime suspects in the
alleged loss to the PRC of certain W-88 nuclear warhead
design information, and that the loss had most likely
occurred at Los Alamos. The AI reaches a preliminary
conclusion:
". . . it is the opinion of the writer that Wen Ho Lee is
the only individual identified during this inquiry who had,
opportunity, motivation and legitimate access to both W-88
weapons system information and the information reportedly
received by [the PRC]." \59\
A fair reading of the document also shows that the authors
explicitly recognized the limitations of their investigation
and recommended that the Lees and Los Alamos be a starting
place for an investigation into the loss of the W-88
information, an investigation that would necessarily extend
well beyond the Lees and Los Alamos. For example, the report
says:
"This by no means excludes any other DOE personnel as
being possible suspects in this matter. However, based upon a
review of all information gathered by this inquiry, Wen Ho
Lee and his wife, Sylvia appear the most logical suspects.
Wen Ho Lee had the direct access to the W-88 [information],
motivation and opportunity to provide the PRC the W-88
weapons design [information]." \60\
The report concluded with the following recommendation:
"The writer believes the ECI [DOE Counterintelligence] has
basically, exhausted all logical `leads' regarding this
inquiry which ECI is legally permitted to accomplish.
Therefore, I strongly urge the FBI take the lead in this
investigation." \61\
Thus, while the AI strongly points toward the Lees there
are also enough qualifiers to make it clear that other
suspects should also be investigated.
Had the AI arrived on the doorstep of the FBI's Albuquerque
office under different circumstances, it might have been
handled more appropriately. The AI came when the FBI had
already been investigating Dr. Lee, albeit not very
competently, on the basis of credible allegations from 1994
that he had helped the Chinese with codes and software. In
this context, the AI served to reinforce the FBI's existing
perceptions of Dr. Lee as a likely espionage suspect.
Instead of using the AI as a starting point for a
comprehensive investigation, the FBI did little or no
additional analysis and began focusing almost exclusively on
the W-88 issue and the Lees. The reason for the FBI's action
was made clear in an interview of the special agent who
helped write the AI, who said that he assumed that the
investigation of Dr. Lee and the Kindred Spirit investigation
would eventually merge because it looked like Dr. Lee was the
most likely suspect.\62\
Even when given an opportunity to take a fresh look at the
case, the FBI did not do so. When the CIA expressed concern
in the summer of 1996 that the individual who provided the
"walk-in" document might be under the control of a hostile
intelligence service, the FBI actually shut down its
investigation for nearly three weeks in July and August. An
August 20, 1996 teletype from FBIHQ to the Albuquerque
division says:
"On August 19, 1996, DOEHQ provided FBIHQ with a letter
stating it had conferred with CIAHQ and that DOE judged `that
a serious compromise of U.S. weapons-specific restricted data
occurred most likely in the 1984-1988 timeframe.' In effect,
DOE stands by their original conclusion." \63\
Thus, after the details were sorted out, it was clear that
the investigation should go forward because the PRC had
information they should not have, even if there were
disagreements over what, exactly, had been compromised. A
September 16, 1996 FBI 302 from an interview of a scientist
puts this in perspective. It says, "There was no
disagreement that `Restricted Data' information had been
acquired by the Chinese. The only disagreement was over how
valuable the information was." \64\
Thus, the recent attempts to dissect the AI, outlined
elsewhere in this report, miss the mark. The FBI had an
opportunity when the CIA raised a red flag about the "walk-
in" in 1996 to review the structure of their investigation.
They knew, based on the review they conducted at the time,
that there had been some disagreement within the KSAG, but
that espionage had, in fact, occurred. Unfortunately, when
the FBI restarted its investigation in August 1996, the case
agents never questioned the underlying assumptions of the AI
or the impact of these assumptions on the structure and
course of the investigation.
By restarting the investigation where they left off, the
FBI failed to take into consideration massive amounts of
information in their own files indicating that the
investigation should extend beyond the W-88 information,
beyond Los Alamos, and beyond the Lees. More importantly, the
FBI never seems to have made any effort to understand what,
if any, relationship existed between the Kindred Spirit
allegations and the investigation
[[Page S13798]]
of Dr. Lee that was already under way related to computer
codes and software. The FBI's failure to ask this basic
question sent the investigation on a wild goose chase for
more than three years while Dr. Lee's illegal computer
activities, which were highly relevant to the 1994
allegations against him, continued unchecked and unimpeded.
The "walk-in" document
The "walk-in" document is central to the Kindred Spirit
investigation, so it should be described in the greatest
detail consistent with classification concerns. This
document, dated 1988, is said to lay out China's nuclear
modernization plan for Beijing's First Ministry of Machine
Building, which is responsible for making missiles and nose
cones.\65\ The 74-page document contains dozens of facts
about U.S. warheads, mostly in a two-page chart. On one side
of the chart are various US Air Force and US Navy warheads,
including some older bombs as well as the W-80 warhead
(cruise missiles), the W-87 (Minuteman III); and the W-88
(Trident II).\66\ Among the most important items of
information in the "walk-in" document are details about the
W-88 warhead.
The Cox Committee Report provides the following description
and assessment of the "walk-in" document:
"In 1995, a "walk-in" approached the Central
Intelligence Agency outside of the PRC and provided an
official PRC document classified "Secret" that contained
design information on the W-88 Trident D-5 warhead, the most
modern in the U.S. arsenal, as well as technical information
concerning other thermonuclear warheads.
"The CIA later determined that the "walk-in" was
directed by the PRC intelligence services. Nonetheless, the
CIA and other Intelligence Community analysts that reviewed
the document concluded that it contained U.S. thermonuclear
warhead design information.
"The "walk-in" document recognized that the U.S. nuclear
warheads represented the state-of-the-art against which PRC
thermonuclear warheads should be measured.
"Over the following months, an assessment of the
information in the document was conducted by a
multidisciplinary group from the U.S. government, including
the Department of Energy and scientists from the U.S.
national weapons laboratories."\67\
The Cox Committee's view that the Chinese had obtained
sensitive design information about U.S. thermonuclear
warheads is bolstered by the June 1999 report of the
President's Foreign Intelligence Advisory Board, which states
that the "walk-in" document:
"unquestionably contains some information that is still
highly sensitive, including descriptions, in varying degrees
of specificity, of the technical characteristics of seven
U.S. thermonuclear warheads." \68\
The preceding analysis shows that while there can be a
legitimate debate as to whether the conclusions of the AI
were stated with inordinate confidence, which may have
contributed to the FBI's decision to focus on the Lees and
the loss of the W-88 information, there can be no doubt that:
(1) the PRC obtained classified nuclear secrets through
espionage, and (2) the FBI had ample reason to investigate
Dr. Lee. The problem is that the FBI focused too narrowly on
the Lees as suspects in the W-88 investigation without
ascertaining whether their suspicions about Dr. Lee were
logically related to the alleged loss of the W-88
information.
From 1996 until 1997 the DOE and FBI investigation was
characterized by additional inexplicable lapses. For example,
in November 1996, the FBI asked DOE counterintelligence team
leader Terry Craig for access to Dr. Lee's computer. Although
Mr. Craig apparently did not know it until 1999, Dr. Lee had
signed a consent-to-monitor waiver \69\ on April 19, 1995.
The relevant portion of the waiver states:
"Warning: To protect the LAN [local area network] systems
from unauthorized use and to ensure that the systems are
functioning properly, activities on these systems are
monitored and recorded and subject to audit. Use of these
systems is expressed consent to such monitoring and
recording. Any unauthorized access or use of this LAN is
prohibited and could be subject to criminal and civil
penalties." \70\
For reasons that have yet to be explained, this waiver was
not in Dr. Lee's security file or his personnel file.\71\
The computer that Dr. Lee used apparently also had a
banner, which had information that may have constituted
sufficient notice to give the FBI access to its contents.
And, finally, LANL computer use policy gave authorities the
ability to search computers to prevent waste, fraud and
abuse.\72\ As noted in the press release accompanying the
August 12, 1999, Department of Energy Inspector General's
Report, Mr. Craig's "failure to conduct a diligent search
deprived the FBI of relevant and potentially vital
information." \73\ Had the FBI National Security Law Unit
(NSLU) been given the opportunity to review these facts, it
may well have concluded that no FISA warrant was necessary to
conduct a preliminary investigation of Dr. Lee's computer.
More importantly, records from the DOE monitoring systems
like NADIR could almost certainly have been reviewed without
a FISA warrant. Had these records been searched, Dr. Lee's
unauthorized downloading would have been found nearly three
years earlier. Unfortunately, through the failures of both
DOE and FBI personnel, this critical information never
reached FBI Headquarters, and the NSLU decided that Dr.
Lee's computer could not be searched without a FISA
warrant.\74\ Thus, a critical opportunity was lost to find
and remove from an unsecure system, information that could
alter the global strategic balance.
Nonetheless, the FBI developed an adequate factual basis
for the issuance of a FISA warrant. The information developed
by the FBI to support its FISA application in 1997 was
cogently summarized in the August 5, 1999 special statement
of Senators Thompson and Lieberman of the Senate Committee on
Governmental Affairs \75\:
"DOE counterintelligence and weapons experts had concluded
that there was a great probability that the W-88 information
had been compromised between 1984 and 1988 at the nuclear
weapons division of the Los Alamos laboratory. It was
standard PRC intelligence tradecraft to focus particularly
upon targeting and recruitment of ethnic Chinese living in
foreign countries (e.g., Chinese-Americans).
"It is common in PRC intelligence tradecraft to use
academic delegations--rather than traditional intelligence
officers--to collect information on science-related topics.
It was, in fact, standard PRC intelligence tradecraft to use
scientific delegations to identify and target scientists
working at restricted United States facilities such as LANL,
since they "have better access than PRC intelligence
personnel to scientists and other counterparts at the United
States National Laboratories."
"Sylvia Lee, wife of Wen Ho Lee, had extremely close
contacts with visiting Chinese scientific delegations. Sylvia
Lee, in fact, had volunteered to act as hostess for visiting
Chinese scientific delegations at LANL when such visits first
began in 1980, and had apparently had more extensive contacts
and closer relationships with these delegations than anyone
else at the laboratory. On one occasion, moreover, Wen-Ho Lee
had himself aggressively sought involvement with a visiting
Chinese scientific delegation, insisting upon acting as an
interpreter for the group despite his inability to perform
this function very effectively.
"Sylvia Lee was involuntarily terminated at LANL during a
reduction-in-force in 1995. Her personnel file indicated
incidents of security violations and threats she allegedly
made against coworkers.
"In 1986, Wen-Ho Lee and his wife traveled to China on
LANL business to deliver a paper on hydrodynamics \76\ to a
symposium in Beijing. He visited the Chinese laboratory--the
Institute for Applied Physics and Computational Mathematics
(IAPCM)--that designs the PRC's nuclear weapons.
"The Lees visited the PRC--and IAPCM--on LANL business
again in 1988.
"It was standard PRC intelligence tradecraft, when
targeting ethnic Chinese living overseas, to encourage travel
to the "homeland"--particularly where visits to ancestral
villages and/or old family members could be arranged--as a
way of trying to dilute loyalty to other countries and
encouraging solidarity with the authorities in Beijing.
"The Lees took vacation time to travel elsewhere in China
during their two trips to China in 1986 and 1988.
"The FBI also learned of the Lees' purchase of unknown
goods or services from a travel agent in Hong Kong while on a
trip to that colony and to Taiwan in 1992. On the basis of
the record, the FBI determined that there was reason to
believe that this payment might have been for tickets for an
unreported side trip across the border into the PRC to
Beijing.
"Though Wen-Ho Lee had visited IAPCM in both 1986 and 1988
and had filed "contact reports" claiming to recount all of
the Chinese scientists he met there, he had failed to
disclose his relationship with the PRC scientist who visited
LANL in 1994.
"Wen-Ho Lee worked on specialized computer codes at Los
Alamos--so-called "legacy codes" related to nuclear testing
data--that were a particular target for Chinese intelligence.
"The FBI learned that during a visit to Los Alamos by
scientists from IAPCM, Lee had discussed certain unclassified
hydrodynamic computer codes with the Chinese delegation. It
was reported that Lee had helped the Chinese scientists with
their codes by providing software and calculations relating
to hydrodynamics.
"In 1997, Lee had requested permission to hire a graduate
student, a Chinese national, to help him with work
on "Lagrangian codes" at LANL. When the FBI evaluated
this request, investigators were told by laboratory
officials that there was no such thing as an unclassified
Lagrangian code, which describes certain hydrodynamic
processes and are used to model some aspects of nuclear
weapons testing. "In 1984, the FBI questioned Wen-Ho Lee
about his 1982 contact with a U.S. scientist at another
DOE nuclear weapons laboratory who was under
investigation. "When questioned about this contact, Lee
gave deceptive answers. After offering further
explanations, Lee took a polygraph, claiming that he had
been concerned only with this other scientist's alleged
passing of unclassified information to a foreign
government against DOE and Nuclear Regulatory Commission
regulations--something that Lee himself admitted doing.
(As previously noted, the FBI closed this investigation of
Lee in 1984.) "The FBI, as noted above, had begun another
investigation into Lee in the early 1990s, before the W-88
design information compromise came
[[Page S13799]]
to light. This investigation was based upon an FBI
investigative lead that Lee had provided significant
assistance to the PRC. "The FBI obtained a copy of a note
on IAPCM letterhead dated 1987 listing three LANL reports
by their laboratory publication number. On this note, in
English, was a handwritten comment to `Linda' saying
`[t]he Deputy Director of this Institute asked [for] these
paper[s]. His name is Dr. Zheng Shaotang. Please check if
they are unclassified and send to them. Thanks a lot.
Sylvia Lee.' "
The FBI request was worked into a draft FISA application by
Mr. David Ryan, a line attorney from the Department of
Justice's Office of Intelligence Policy and Review (OIPR)
with considerable experience in FISA matters. It was then
reviewed by Mr. Allan Kornblum, as Deputy Counsel for
Intelligence Operations, and finally, by Mr. Gerald
Schroeder, Acting Counsel, OIPR.\77\ As is well known by now,
the OIPR did not agree to forward the FISA application, and
yet another opportunity to discover what Dr. Lee was up to
was lost.
The Department of Justice should have taken the FBI's
request for a FISA warrant on Dr. Lee to the Court on August
12, 1997.
Attorney General Reno testified about this case before the
Senate Judiciary Committee on June 8, 1999. A redacted
version of her testimony was released on December 21, 1999.
The transcript makes it clear that the Department of Justice
should have agreed to go forward with the search warrant for
surveillance of Dr. Wen Ho Lee under the Foreign Intelligence
Surveillance Act when the FBI made the request in 1997.
The DOJ's internal review of the FISA request, conducted by
Assistant U.S. Attorney Randy Bellows, confirms that the
request should have gone forward. Mr. Bellows said:
"The final draft FISA application [deleted] on its face,
established probable cause to believe that Wen Ho Lee was an
agent of a foreign power, that is to say, a United States
Person currently engaged in clandestine intelligence
gathering activities for or on behalf of the PRC which
activities might involve violations of the criminal laws of
the United States and that his wife, Sylvia Lee, aided,
abetted or conspired in such activities. Given what the FBI
and OIPR knew at the time, it should have resulted in the
submission of a FISA application and the issuance of a FISA
order." \78\
In evaluating the sufficiency of the FBI's statement of
probable cause, the Attorney General and the Department of
Justice failed to follow the standards of the Supreme Court
of the United States that the requirements for "domestic
surveillance may be less precise than that directed against
more conventional types of crime." In United States v. U.S.
District Court 407 U.S. 297, 322-23 (1972) the Court held:
"We recognize that domestic security surveillance may
involve different policy and practical considerations from
the surveillance of "ordinary crime" . . . the focus of
domestic surveillance may be less precise than that directed
against more conventional types of crime. . . . Different
standards may be compatible with the Fourth Amendment if they
are reasonable both in relation to the legitimate need of
government for intelligence information and the protected
rights of our citizens. For the warrant application may vary
according to the governmental interest to be enforced and the
nature of citizen rights deserving protection." [emphasis
added]
Even where domestic surveillance is not involved, the
Supreme Court has held that the first focus is upon the
governmental interest involved in determining whether
constitutional standards are met. In Camera v. Municipal
Court of the City and County of San Francisco, 387 U.S. 523,
534-539, (1967), the Supreme Court said:
"In cases in which the Fourth Amendment requires that a
warrant to search be obtained, "probable cause" is the
standard by which a particular decision to search is tested
against the constitutional mandate of reasonableness. To
apply this standard, it is obviously necessary first to focus
upon the governmental interest which allegedly justifies
official intrusion upon the constitutionally protected
interests of the private citizen. . . . [emphasis added]
"Unfortunately, there can be no ready test for determining
reasonableness other than by balancing the need to search
against the invasion which the search entails. . . .
"The warrant procedure is designed to guarantee that a
decision to search private property is justified by a
reasonable governmental interest. But reasonableness is still
the ultimate standard. If a valid public interest justifies
the intrusion contemplated, then there is probable cause to
issue a suitably restricted search warrant."
Where the Court allowed inspections in Camera without
probable cause that a particular dwelling contained
violations, it is obvious that even more latitude would be
constitutionally permissible where national security is in
issue and millions of American lives may be at stake. Even
under the erroneous, unduly high standard applied by the
Department of Justice, however, the FBI's statement of
probable cause was sufficient to activate the FISA warrant.
FBI Director Freeh correctly concluded that probable cause
existed for the issuance of the FISA warrant. At the June 8
hearing, Attorney General Reno stated her belief that there
had not been a sufficient showing of probable cause but
conceded that FBI Director Freeh, a former Federal judge,
concluded that probable cause existed as a matter of law.\79\
The Department of Justice applied a clearly erroneous
standard to determine whether probable cause existed. As
noted in the transcript of Attorney General Reno's testimony:
"On 8-12-97 Mr. Allan Kornblum of OIPR advised that he
could not send our (the FBI) application forward for those
reasons. We had not shown that subjects were the ones who
passed the W-88 [design information] to the PRC, and we had
little to show that they were presently engaged
in clandestine intelligence activities." \80\
It is obviously not necessary to have a showing that the
subjects were the ones who passed W-88 design information to
the PRC. That would be the standard for establishing guilt at
a trial, which is a far higher standard than establishing
probable cause for the issuance of a search warrant. Attorney
General Reno contended that the remainder of the 12
individuals identified in the AI would have to be ruled out
as the ones who passed W-88 design information to the PRC
before probable cause would be established for issuance of
the FISA warrant on Dr. Lee. That, again, is the standard for
conviction at trial instead of establishing probable cause
for the issuance of a search warrant. Thus, it is apparent
from the Kornblum statement that the wrong standard was
applied: "that subjects were the ones that passed the W-88
[design information] to the PRC." \81\
DOJ was also wrong when Mr. Kornblum concluded that: "We
had little to show that they were presently engaged in
clandestine intelligence activities." \82\ There is
substantial evidence that Dr. Lee's relevant activities
continued from the 1980s to 1992, 1994 and 1997 as noted
above.
When FBI Assistant Director John Lewis met with Attorney
General Reno on August 20, 1997, to ask about the issuance of
the FISA warrant, Attorney General Reno delegated the matter
to Mr. Daniel Seikaly, former Director, DOJ Executive Office
for National Security, and she had nothing more to do with
the matter. Mr. Seikaly completed his review by late August
or early September and communicated his results to the FBI
through Mr. Kornblum. As Mr. Seikaly has testified, this was
the first time he had ever worked on a FISA request and he
was not "a FISA expert." It was not surprising then that
Seikaly applied the wrong standard for a FISA application:
"We can't do it (a FISA wiretap) unless there was probable
cause to believe that that facility, their home, is being
used or about to be used by them as agents of a foreign
power." \83\
Mr. Seikaly applied the standard from the typical criminal
warrant as opposed to a FISA warrant. 18 U.S.C. 2518,
governing criminal wiretaps, allows surveillance where there
is:
"Probable cause for belief that the facilities from which,
or the place where, the wire, oral, or electronic
communications are to be intercepted, are being used, or are
about to be used in connection with the commission of such
offense." [emphasis added]
This criminal standard specifically requires that the
facility be used in the "commission of such offense." FISA,
however, contains no such requirement. 50 U.S.C. 1805
(Section 105 of FISA) states that a warrant shall be issued
if there is probable cause to believe that:
"Each of the facilities or places at which the
electronic surveillance is directed is being used, or is
about to be used, by a foreign power or an agent of a
foreign power."
There is no requirement in this FISA language that the
facility is being used in the commission of an offense. This
incorrect application of the law was a serious mistake. As
noted in the Bellows report, "This matter should not have
been assigned to an attorney who did not already have a solid
grounding in FISA law, FISA applications, and the FISA
Court." \84\
Attorney General Reno demonstrated an unfamiliarity with
technical requirements of Section 1802 versus Section 1804.
She was questioned about the higher standard under 1802 than
1804: "It seems the statutory scheme is a lot tougher on
1802 on its face." \85\
Attorney General Reno replied: "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." \86\
When further questioned about her interpretation on 1802
and 1804, Attorney General Reno indicated lack of familiarity
with these provisions, saying:
"Since I did not address this, let me ask Ms. Townsend who
heads the office of policy review to address it for you in
this context and then I will. . . ." \87\
As noted in the record, the offer to let Ms. Townsend
answer the question was rejected in the interest of getting
the Attorney General's view on this important matter rather
than that of a subordinate.
The lack of communication between the Attorney General and
the Director of the FBI on a matter of such grave importance
is troubling. As noted previously, Director Freeh sent John
Lewis, Assistant FBI Director for National Security to
discuss this matter with the Attorney General on August 20,
1996. However, when the request for a review of the matter
did not lead to the forwarding of the FISA application to the
court, Director Freeh did not further press the issue. And
Attorney General Reno conceded that she did not follow up on
the Wen Ho Lee matter. During the June 8 hearing, Senator
Sessions asked, "Did your staff convey to you that they had
once again denied this matter?" \88\
[[Page S13800]]
Attorney General Reno replied, "No, they had not." \89\
As the Bellows Report concludes, "The failure to advise
the Attorney General of the resolution of this matter had an
unfortunate consequence: It effectively denied the FBI the
true appeal it had sought." \90\
The June 8, 1999 hearing also included a discussion as to
whether FBI Director Freeh should have personally brought the
matter again to Attorney General Reno. The Attorney General
replied that she did not "complain" about FBI Director
Freeh's not doing so and stated, "I hold myself responsible
for it." \91\
Attorney General Reno conceded the seriousness of the case,
stating, "I don't think the FBI had to convey to the
attorneys the seriousness of it. I think anytime you are
faced with facts like this it is extremely serious." \92\
In the context of this serious case, it would have been
expected that Attorney General Reno would have agreed with
FBI Director Freeh that the FISA warrant should have been
issued. In her testimony, she conceded that if some 300 lives
were at stake on a 747 she would take a chance, testifying:
"My chance that I take if I illegally search somebody, if I
save 300 lives on a 747, I'd take it." \93\
In that context, with the potential for the PRC obtaining
U.S. secrets on nuclear warheads, putting at risk millions of
Americans, it would have been expected that the Attorney
General would find a balance in favor of moving forward with
the FISA warrant. As demonstrated by her testimony, Attorney
General Reno sought at every turn to minimize the FBI's
statement of probable cause. On the issue of Dr. Lee's
opportunity to have visited Beijing when he had been in Hong
Kong and incurred additional travel costs of the approximate
expense of traveling to Beijing, the Attorney General said
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." \94\
It might well be reasonable for a fact-finder to conclude
that Dr. Lee did not go to Beijing; but, certainly, his
proximity to Beijing, the opportunity to visit there and his
inclination for having done so in the past would at least
provide some "weight" in assessing probable cause. But the
Attorney General dismissed those factors as having no weight
even on the issue of probable cause, testifying, "I don't
find any weight when I don't know where the person went."
\95\ Of course it is not known "where the person went." If
that fact had been established, it would have been beyond the
realm of "probable cause." Such summary dismissal by the
Attorney General on a matter involving national security is
inappropriate given the circumstances. In other legal
contexts, opportunity and inclination are sufficient to cause
an inference of certain conduct as a matter of law.
The importance of DOJ's erroneous interpretation of the law
in this case, which resulted in the FISA rejection, should
not be underestimated. Had this application for a FISA
warrant been submitted to the court, it doubtless would have
been approved. DOJ officials reported that approximately 800
FISA warrants were issued each year with no one remembering
any occasion when the court rejected an application.
Assistant U.S. Attorney Randy Bellows concurred on the
damage done by OIPR's rejection of the FISA request:
"OIPR's erroneous judgment that [deleted] did not contain
probable cause could not have been more consequential to the
investigation of Wen Ho Lee. From the beginning of that
investigation, the FBI's objective had been to obtain FISA
coverage. It now faced the prospect of no FISA coverage, an
eventuality for which it had never prepared. The other
consequence, of course, is that such information as might
have been acquired through FISA coverage was not acquired. It
is impossible to say just what the FBI would have learned
through FISA surveillance. That is, after all, the point of
surveillance. What is clear is that [deleted] should have
been approved, not rejected. For all the problems with the
FBI's counterintelligence investigation of Wen Ho Lee, and
they were considerable, the FBI had somehow managed to stitch
together an application that established probable cause. That
OIPR would disagree with the assessment would deal this
investigation a blow from which it would not recover." \96\
Had the FBI obtained the FISA search warrant, it might have
had a material effect on the investigation and criminal
charging of Dr. Lee. Given the serious mistakes that had been
made by the FBI prior to 1997, there is no guarantee that a
FISA warrant would have led to a successful conclusion to the
investigation, but the failure to issue a warrant clearly had
an adverse impact on the case.
To put the 1997 FISA rejection in perspective, consider
that the open network to which Dr. Lee had transferred the
legacy codes was "linked to the Internet and e-mail, a
system that had been attacked several times by hackers."
\97\ Although we do not know the exact figures for the number
of times that it was accessed, it has been reported that
between October 1997 and June 1998 alone, "there were more
than 300 foreign attacks on the Energy Department's
unclassified systems, where Mr. Lee had downloaded the
secrets of the U.S. nuclear arsenal." \98\
Consider also the following from a December 23, 1999,
Government filing in the criminal case against Dr. Lee:
". . . in 1997 Lee downloaded directly from the classified
system to a tenth portable computer tape a current nuclear
weapons design code and its auxiliary libraries and utility
codes." \99\
This direct downloading had been made possible by Los
Alamos computer managers who made Lee's file transfers
"easier in the mid-1990s by putting a tape drive on Lee's
classified computer." \100\ As incomprehensible as it seems,
despite the fact that Dr. Lee was the prime suspect in an
ongoing espionage investigation, and despite plans to limit
his access to classified information to limit any damage
he might do, DOE computer personnel installed a tape drive
on his computer that made it possible for him to directly
download the nation's top nuclear secrets.
An important aim of surveillance under the FISA statute is
to determine whether foreign intelligence services are
getting access to our classified national security
information. Although we do not know, and may never know, why
Dr. Lee placed these classified files on an unsecure system,
there should be no doubt that transferring classified
information to an unclassified computer system and making
unauthorized tape copies of that information created a
substantial opportunity for foreign intelligence services to
access that information. The breakdown of communication
between the FBI and DOJ which resulted in the rejection of
the FISA in 1997 resulted in yet another missed opportunity
to find and protect the information Dr. Lee illegally put at
risk.
Certain provisions of the Counterintelligence Reform Act of
2000, which became law as Title VI of Public Law 106-567 on
December 27, 2000, will prevent the kinds of problems that
plagued this FISA request. The law now requires that, upon
written notification from the Director of the FBI (or of one
of the few other officials who are authorized to make FISA
requests), the Attorney General must explain in writing why
the Department does not believe that probable cause has been
established, and to make recommendations for improving the
request. When given such recommendations in writing, the
requesting official must personally supervise the
implementation of any such recommendations. These procedures
will ensure that disagreements over matters of probable cause
are resolved rather than allowed to linger, as happened in
the Wen Ho Lee case.
Investigation from August 12, 1997 to December 23, 1998
Notwithstanding the serious evidence against Dr. Lee on
matters of great national security importance, the FBI
investigation languished for 16 months, from August 1997
until December 1998, with the Department of Energy permitting
Dr. Lee to continue on the job with access to classified
information.
After OIPR's August 1997 decision not to forward the FISA
application, FBI Director Louis Freeh met with Deputy Energy
Secretary Elizabeth Moler to tell her that there was no
longer any investigatory reason to keep Lee in place at LANL,
and that DOE should feel free to remove him in order to
protect against further disclosures of classified
information. In October 1997, Director Freeh delivered the
same message to Energy Secretary Federico Pena that he had
given to Moler.\101\ These warnings were not acted on, and
Dr. Lee was left in place, as were the files he had
downloaded to the unclassified system, accessible to any
hacker on the Internet.
After the rejection of the FISA warrant request on August
12, it took the FBI three and one-half months to send a memo
dated December 19, 1997, to the Albuquerque field office
listing fifteen investigative steps that should be taken to
move the investigation forward. The Albuquerque field office
did not respond directly until November 10, 1998. The fifteen
investigative steps were principally in response to the
concerns raised by OIPR about the previous FISA request. To
protect sources and methods, the specific investigative steps
in the December 19, 1997 teletype cannot be disclosed, but
have been summarized by the FBI as follows:
1. Conduct Additional Interviews
(a) Open preliminary inquiries on other individuals named
in the DOE AI who met critical criteria;
(b) Develop information on associate's background, and
interview the associate, and
(c) Interview co-workers, supervisors, and neighbors.
2. Conduct Physical Surveillance
3. Conduct Other Investigative Techniques
(a) Review information resulting from other investigative
methods;
(b) Review other investigations for lead purposes; and
(c) Implement alternative investigative methods.\102\
Only two of the leads were seriously pursued. Most
importantly, the FBI did not open investigations on the other
individuals named in the DOE AI until much later.
The False Flag
One of the steps recommended in the December 1997 HQ
investigative plan was carried out in August 1998. The
results of this "False Flag" operation against Dr. Lee are
partially described in a November 10, 1998 memorandum from
Albuquerque to FBIHQ. The memorandum is identified as a
request for electronic surveillance and lays out the basis
for probable cause, including a description of a series of
phone calls between Dr. Lee and an individual posing as an
officer of
[[Page S13801]]
the Ministry of Foreign Affairs and Ministry of State
Security. According to the memo, this undercover agent (UCA)
introduced himself to Dr. Lee "as a representative of the
`concerned Department,' from Beijing, PRC," and explained
that the purpose of his visit to Sante Fe was to "meet with
Wen Ho Lee to assure of Lee's well-being in the aftermath of
the conviction of a Chinese-American scientist, Peter Lee in
California." \103\
The Albuquerque memo describes Dr. Lee as being
"skeptical of the entire situation and apprehensive about
meeting face-to-face with [the UCA]" and relates how Dr.
Lee mentioned that "departmental policy at LANL requires
him to report to his superior if he meets with a
representative of a foreign government, however, it does
not mean that he is forbidden to meet such a person."
\104\ Dr. Lee stated a preference for discussing any
matters with the representative of the PRC over the phone,
but when told that there were other sensitive issues
besides the Peter Lee case which must be discussed in
person, Dr. Lee agreed to meet the UCA at the Hilton
Hotel.\105\
About ten minutes after agreeing to travel to meet the UCA,
Dr. Lee called back and said he had changed his mind,
reiterating his concerns about registering with his superior
when meeting with foreign government officials. Given that
Dr. Lee would not agree to a face-to-face meeting, the UCA
said that "although he was an official from the PRC
government, he was traveling under civilian status on this
trip so that he could avoid scrutiny by the United States
government." \106\ The UCA then asked Dr. Lee if he had been
interviewed by any U.S. authorities, including the FBI, and
whether Dr. Lee had noticed anything unusual or was being
treated differently by his employer or had any restrictions
on his travel arrangements in the wake of the Peter Lee case.
Dr. Lee responded negatively.\107\
The UCA then told Dr. Lee that one of the reasons he wanted
to meet was to see if there was any material to take back to
the PRC. After Dr. Lee said there was not any such material,
the UCA said that "since the material he brought back to
China and the speech he gave were so helpful, did Lee have
any plans in going to the PRC in the near future." \108\ Dr.
Lee said that he would probably not be going to the PRC until
after his retirement from LANL in one or two years. He did
not, as one would expect, deny that he had previously sent
material.
The next day (August 19), the UCA called Dr. Lee again,
saying that he would be leaving Santa Fe in a few days and
asking if Dr. Lee would like to have a number where he could
contact the UCA in the future. Dr. Lee said he would like to
have a number, and was provided a pager number and was told
that it belonged to an American friend who had helped the UCA
and his associates in the past, and who could be
trusted.\109\
Dr. Lee did not immediately report this contact, but he
told his wife who told a friend, who told DOE security. When
Dr. Lee was questioned by DOE counterintelligence personnel
about the phone call, he was vague, and failed to mention the
beeper number or the hotel.
The FBI did not properly handle the information learned
from the False Flag operation. First, it took more than three
months for the transcript of the exchange between Dr. Lee and
the UCA to get to FBI Headquarters where it could be fully
analyzed. Unfortunately, the transcript (and the FISA request
based on the results of the False Flag) arrived at FBI HQ
just when the DOE was asserting control over the case. Had
the transcript been analyzed in the full detail that it
deserved, the FBI would have been able to tell the Office of
Intelligence Policy and Review that prior concerns about
whether Dr. Lee was "currently engaged" as an agent of a
foreign power had been addressed by his dealings with the
undercover agent. Among the key points that should have been
worked into the renewed FISA application are the following:
That Dr. Lee agreed to meet with an individual purporting
to be an agent of a foreign government, traveling in the U.S.
in civilian clothes to avoid detection by U.S. authorities.
Although Dr. Lee called back and canceled the face-to-face
meeting, he never reported to lab security personnel that he
had agreed to meet in the first place.
That Dr. Lee accepted the contact number of an individual
claiming to be an agent of a foreign power, yet failed to
disclose that fact to lab security officials about the
incident when asked about this contact. Dr. Lee apparently
admitted more of the details of the August phone
conversations when he was interviewed by FBI agents in
January 1999, but his failure to acknowledge this fact when
he spoke to Los Alamos officials in August 1998 continued a
pattern of incomplete disclosure from Dr. Lee.
That Dr. Lee asked questions during the conversation which
indicated a knowledge of PRC intelligence and scientific
organizations and the operational methods used by these
agencies.
None of these new items of information was sufficient, on
its own, to tip the balance of probable cause against Dr.
Lee. However, in the context of the other evidence that had
already been gathered by the FBI, these elements were
certainly relevant to a probable cause determination and
should have been relayed to OIPR for consideration. While the
FBI informally told OIPR of Dr. Lee's failure to fully report
the August contact, that conversation did not take place
until three months after the incident occurred. A proper and
timely interpretation of the False Flag operation would have
set the investigation on a very different course in late
1998. The Bellows Report supports the judgement that the
FBI's handling of the False Flag was inappropriate, and that
the information gained through the False Flag would have
added to a showing of probable cause necessary for a FISA
warrant.
Surreptitious Communications
The December 19, 1997 directive from FBI Headquarters also
revived an investigative issue that had come to the FBI's
attention in 1995, prior to the start of the Kindred Spirit
investigation. Among the 15 actions that FBI Headquarters
directed the Albuquerque office to take was a reinvestigation
of the possibility that Dr. Lee was engaging in clandestine
communications, using either a satellite system or Short
Range Agent Communications (SRAC).
As part of the 1994-1996 investigation of Dr. Lee, the FBI
had learned that Dr. Lee was reported to have installed a
satellite antenna near his home and was suspected of using it
to communicate surreptitiously. The case agents requested
assistance in investigating the possibility that Dr. Lee was
engaged in some sort of satellite communications, but the
request was summarily dismissed by the case manager at FBI
Headquarters, Supervisory Special Agent Craig Schmidt, and
the matter was not further pursued for nearly three years.
After the FISA request was rejected in 1997, in part
because the FBI had not been able to convince OIPR that Dr.
Lee was currently engaged in any clandestine activity, the
case manager's interest in the communications issue picked
up. In the December 19, 1997 communication to Albuquerque, he
directed the agents in the field to renew their investigation
of this matter, which they did with substantial vigor. For
several months during the summer of 1998, the Albuquerque
office collected information to determine whether or not Dr.
Lee was, in fact, engaged in some sort of clandestine
communication from his home.
The Albuquerque case agents, with the help of a technical
adviser who was brought in specifically for the purpose of
helping on this issue, formed a hypothesis that Dr. Lee was
communicating by satellite. They included this information,
and much of the supporting data, in the November 10, 1998
request for a FISA warrant. The agents did not assert
conclusively that Dr. Lee was using SRAC or satellite
communications, but they explained their reasons for
believing that he might be doing so and requested help in
making a final determination about the significance of the
possible communications.
The FBI has subsequently concluded that the observed
phenomenon which originally led the Albuquerque case agents
to believe that Dr. Lee might be using SRAC was not linked to
any communication from Dr. Lee's house. The FBI's technical
analysis of this issue is thorough and convincing. On the
current state of the record, the phenomenon which led the FBI
to suspect that Dr. Lee was engaged in surreptitious
communications, while still unexplained, cannot be
conclusively linked to anything that was going on inside Dr.
Lee's house or on his property.
What is disturbing, however, is that the FBI did not even
begin this analysis until November 1999, shortly after the
November 3, 1999 closed hearing which focused heavily on this
issue. The case manager at FBI Headquarters who received the
November 10, 1998 FISA request from Albuquerque rejected the
new request, despite the fact that it contained new
information beyond what the FBI had felt was sufficient, in
1997, to get a FISA warrant. Outside the Albuquerque field
office, no one in the FBI made any real effort to
understand the data in the November 10, 1998 FISA request.
Even when the dynamics of the case changed after the FBI
concluded that Dr. Lee had not passed the December 23, 1998
polygraph, and changed again when Dr. Lee failed an FBI
polygraph on February 10, 1999, no one in the FBI expressed
any interest in examining the possibility that there might be
something more to the SRAC issue than initially suspected.
The FBI still did not revisit the clandestine communications
issue after learning that Dr. Lee had been downloading
computer files and putting them on portable tapes. The notion
that there might be a link between the clandestine
communications and the portable tapes apparently never
occurred to the FBI, and no effort was made to investigate
the meaning of the strange electromagnetic phenomenon that
had led the FBI case agents to suspect that Dr. Lee was using
SRAC.
Instead of taking action on the new information, the case
manager sent back a cable on December 10, telling the case
agents that FBIHQ had reviewed the new FISA request and
determined that it did "not yet contain the justification
necessary to successfully support a FISA Court application
for electronic surveillance," and recommended that
Albuquerque send copies of written reports from LANL's
Counterintelligence officer, Terry Craig, regarding Dr. Lee's
deception about the False Flag.\110\
On the merits, the failure to forward the FISA request to
OIPR is inexplicable. The FBI had felt since 1997 that they
had sufficient probable cause to get a FISA warrant. The 1998
investigative steps yielded new information that directly
addressed the concerns OIPR had raised about the Lees being
currently engaged in clandestine activity,
[[Page S13802]]
yet the FBI case manager summarily dismissed the new request,
failing to even forward it to OIPR for consideration. The
failure to take action when the dynamics of the case changed
in early 1999 is just incomprehensible.
When such serious national interests were involved in this
case, it was simply unacceptable for the FBI to tarry from
August 12, 1997 to December 19, 1997, to send the Albuquerque
field office a memo. It was equally unacceptable for the
Albuquerque field office to take from December 19, 1997 until
November 10, 1998 to respond to the guidance from
Headquarters, and then for the FBI not to renew the request
for a FISA warrant based on the additional evidence. The
FBI's handling of this issue is impossible to justify.
The December 23, 1998 Polygraph
When Dr. Lee returned to the United States from a three-
week trip to Taiwan in December 1998, he was administered a
polygraph examination on instructions from Mr. Ed Curran,
Director of DOE's Office of Counterintelligence (OCI).
Although Dr. Lee was initially thought to have passed the
polygraph with very high scores, his access to the X-Division
was temporarily suspended to give the FBI time to conclude
its investigation. When the polygraph results were examined
by the FBI in late January or early February 1999, it became
clear that Dr. Lee had not passed, and the investigation was
restarted, eventually leading to the dismissal of Dr. Lee
from LANL and, several months later, his indictment and
jailing.
The circumstances surrounding this December 1998 polygraph
are among the most important but least understood aspects of
the case. The June 1999 report of the President's Foreign
Intelligence Advisory Board raised questions about this issue
and recommended that the Attorney General determine, "why
DOE, rather than the FBI, conducted the first polygraph in
this case when the case was an open FBI investigation. . .
." \111\ The subcommittee's investigation demonstrates that
the handling of the December 23, 1998 polygraph, or more
accurately the mishandling of this polygraph is one of the
most consequential errors of the Wen Ho Lee matter. To
understand the impact of the polygraph on the case, it is
necessary to review: 1) the events leading up to and the
reasons for the December 23, 1998 polygraph; 2) the results
of that polygraph; and 3) the effect on the investigation of
the erroneous polygraph reading by Wackenhut. The short
answer is that: 1) DOE jumped into the case in a heavy handed
way during late 1998 in an effort to avoid criticism related
to the upcoming release of the Cox Committee report, 2) the
Wackenhut examiners' incorrect conclusion that Dr. Lee passed
the polygraph prompted the FBI to nearly shut down its
investigation of Dr. Lee, 3) with the result that during the
time he supposedly was denied access to the X-Division, Dr.
Lee was able to return and recover the tapes that are now
missing. Given the vast number of mistakes that had already
been made prior to December 1998, and the number that were
made thereafter, it would be wishful thinking to believe that
a correct reading of the polygraph would have led to a
successful conclusion in this case, but Wackenhut's erroneous
initial interpretation of the results and the long delay in
getting the charts passed to FBIHQ for review put the case on
a downward spiral from which it almost never recovered.
Because these issues are both highly important and widely
misunderstood, each is examined in some detail.
The events leading up to the December 23, 1998 Polygraph
As noted previously, the FBI's investigation of Dr. Lee had
been dealt a severe blow in August 1997 when DOJ's Office of
Intelligence Policy and Review rejected the FISA request. The
local case agents spent most of 1998 trying to get the
investigation back on track, but were not notably successful.
By November 1998, the newly appointed lead case agent was
ready to move forward and sent a new request for FISA
coverage to FBI HQ. Unfortunately, the request fell on deaf
ears for reasons that will be explored more fully below.
At approximately the same time the case agents were seeking
FISA coverage, Dr. Lee asked for permission to travel to
Taiwan to visit a company called Asiatek. According to an FBI
document describing this request, Dr. Lee said that "Asiatek
invited him to visit Taiwan in December 1998 to give a
presentation in exchange for his airfare." \112\ When Dr.
Lee submitted a request to travel under these terms, the LANL
Internal Security section denied it, so Dr. Lee reportedly
traveled at his own expense to visit an ailing sister.\113\
While the Internal Security section was correct to deny Dr.
Lee's request to let Asiatek pay his travel expenses, the
request should have set off alarm bells within both DOE and
the FBI. The aforementioned FBI document says:
"Asiatek is a Taiwan-based company founded in 1985 which
introduced state-of-the art information technology to both
China and Taiwan. The company works with both private
industry and Taiwan government research facilities such as
the Chung Shan Institute of Science and Technology
(administered by the Ministry of National Defense). Asiatek
specializes in information technology, program planning and
management, business process re-engineering, integrated
logistic support, and continuous acquisition and life cycle
support environmental planning and implementation. Asiatek
also develops cannon and tank systems." \114\
The fact that the prime suspect in a major espionage
investigation was asking to travel out of the country for the
second time in less than nine months, with his travel to be
paid for by a foreign company, should have been a call to
action by someone in DOE or the FBI. The local case agent
sent a message to FBIHQ asking that this information be
considered "in conjunction with Albuquerque Division's
request for FISA/MISUR coverage of Wen-Ho Lee," \115\ but
the case manager did not act on it.
If the travel alone was not sufficient to compel the FBI
and/or DOE to take some positive steps to regain control over
the case, the nature of the work performed by Asiatek and its
relationship to the Chung Shan Institute of Science and
Technology should have been because these matters related
directly to concerns that had been raised about Dr. Lee
during the course of the investigation. When asked why Dr.
Lee was allowed to travel under these circumstances, Mr.
Curran replied that "FBI personnel were running the
investigation and were the ones that allowed Dr. Lee to
travel to Taiwan. If it were my decision, I would not have
allowed Mr. Lee to leave the country." \116\
Mr. Curran's statement on the travel issue reflects a
larger problem that plagued the Kindred Spirit investigation
from beginning to end, namely the systemic breakdown of
effective communication between DOE and the FBI on matters of
great importance.\117\ If Mr. Curran was opposed to letting
Dr. Lee go to Taiwan, he should have said something. As
Director of DOE's OCI, his opinion clearly had weight. He did
not act, so Dr. Lee went to Taiwan.
As another example of ineffective communication on
important issues, consider Mr. Curran's statement that he
first learned on December 15, 1998, that Director Freeh had
recommended removing Dr. Lee from access more than a year
before.\118\ Mr. Curran assumed his position as Director of
OCI in April 1998 and immediately conducted a 90-day review
of the CI program at DOE as mandated by PDD-61. He received
what he describes as a "summary briefing on the Kindred
Spirit investigation." He was aware of the False Flag that
was run in August and wanted to "get the case moving and to
resolve the issues of the possible loss of sensitive
information," but the fact that the FBI had recommended that
Dr. Lee's access to classified information be pulled was
apparently not shared with Mr. Curran until mid-December
1998, while Dr. Lee was in Taiwan.\119\ It should be noted,
however, that Mr. Curran told the DOE IG that he learned
about Director Freeh's 1997 comments on moving Dr. Lee in
October 1998, two months before he finally took action.\120\
This is significant because it undermines Mr. Curran's
assertion that the reason he acted in December 1998 was
because he had just learned of Director Freeh's 1997
recommendations.
That the Director of DOE's Office of Counterintelligence
was not informed (or did not make himself aware) of the FBI's
view that Dr. Lee should be pulled from access reflects
poorly on the DOE and the FBI. How could anyone brief this
case to Mr. Curran in 1998 without mentioning that the
Director of the FBI had twice told DOE's top leadership that
Dr. Lee's access to classified information should be removed?
What would one say, when briefing the new head of
counterintelligence, that would not somehow convey the
message that the FBI was concerned about the potential damage
from keeping him in access? And how could the top
counterintelligence officer in the DOE not inquire as to
whether consideration had been given to reducing the risk
posed by an individual who was the chief suspect in a major
espionage investigation? This lack of communication defies
comprehension.
The Counterintelligence Reform Act of 2000 will prevent
such disasters in the future. The Act requires the Director
of the FBI to notify appropriate officials, in writing, when
a full field investigation is started in an espionage case,
and to present to the head of the affected agency a written
assessment of the potential impact of the actions of that
agency or department on an FBI counterintelligence
investigation. It will not be possible in future
investigations for the head of counterintelligence in an
agency to claim ignorance of an FBI recommendation regarding
a suspect's access to classified information. And the FBI
will have to ensure that its coordination with the affected
agency is both close and continuous, so that when new
officials come into decision-making roles, they will be fully
informed as to the important aspects of pending cases. The
FBI/DOE polygraph disaster in the Wen Ho Lee case should be
the last such calamity.
The interim report issued in March 2000 touched briefly on
the polygraph issue, prompting a letter from Mr. Curran,\121\
who provided the following account of the events leading up
to the polygraph:
"Every detail of this case was coordinated between DOE and
the FBI. I personally wanted the FBI to do the interview
rather than DOE, but they stated that they were not ready to
interview him because they first wanted to interview some
neighbors and associates of Mr. Lee. DOE had been asking the
FBI to bring this case to a conclusion since the [false flag]
in August. I did not believe I had the luxury of waiting any
longer since the investigative activity in August and this
was Mr. Lee's first opportunity to leave the U.S. I was very
concerned as to what he would do and say on his trip to
Taiwan and then what he would do upon his return. Since
[[Page S13803]]
the FBI was not going to interview Mr. Lee and bring this
case to a conclusion prior to his departure to Taiwan, I made
the decision, with the Secretary's approval, to remove Mr.
Lee from access upon his return from Taiwan and until the FBI
could conclude their investigation through interview and
polygraph.
"Mr. Lee returned from Taiwan on December 23, 1998. He was
interviewed and removed from access and asked to take a
polygraph. The FBI was aware that if Mr. Lee refused to take
a DOE polygraph, his security clearance would have been
removed and steps taken to terminate his employment; if Mr.
Lee agreed to take the test and failed, his clearance would
be removed and termination proceedings would be initiated.
This activity was completely coordinated with the FBIAQ. On
December 21, 1998, a memo was furnished to the Secretary of
Energy from me setting forth the above scenario. Mr. Lee took
the polygraph test and representatives from FBIAQ were
present." \122\
In subsequent correspondence with the subcommittee, Mr.
Curran elaborated on his reasons for removing Dr. Lee's
access in December 1998. Responding to follow-up questions
from a September 27, 2000 subcommittee hearing, Mr. Curran
cited four reasons for his decision to remove Dr. Lee from
access in December 1998: "(1) the fact that the FBI no
longer required Lee be kept in access, (2) my discomfort at
the extent of Dr. Lee's access, which was greater than I had
originally thought, (3) the fact that the FBI's false flag
operation had been unsuccessful, possibly alerting Lee to the
investigation, and (4) the fact that Lee was then traveling
in Taiwan, thus able to travel easily to Hong Kong or the
People's Republic of China without our knowledge." \123\
While Mr. Curran's account explains what happened, it does
not adequately explain why these events took place. It was
simply inconsistent for DOE to allow Dr. Lee to travel to
Taiwan, yet polygraph him and pull his access to classified
information upon his return, even though he supposedly passed
the polygraph. If Dr. Lee was such a threat that he needed to
be polygraphed and removed from access, why was he allowed to
go to Taiwan? And if he passed the polygraph after returning
from Taiwan, including specific questions about espionage,
why was there still a need to remove his access?
Mr. Curran's explanation for the series of events leading
up to the December 1998 polygraph shows an investigation that
was, at best, disjointed and poorly coordinated (despite Mr.
Curran's assertions to the contrary). Consider, for example,
that the FBI agent who took over the case on November 6,
1998, did not agree with the DOE decision to have Wackenhut
\124\ give Dr. Lee a polygraph examination, and has called it
"irresponsible." According to FBI protocol, Dr. Lee would
have been questioned as part of a post-travel interview.
However, as Mr. Curran noted, the case agents were
inexplicably unprepared to conduct such an interview and the
Special Agent in Charge (SAC) in Albuquerque agreed to go
ahead with the polygraph at Mr. Curran's request. The lead
case agent requested a new FISA in November 1998, but
Supervisory Special Agent Craig Schmidt the same FBI case
manager at headquarters who had put together an action plan
in December 1997 trying to get the investigation back on
track had suddenly gotten cold feet on the matter, casually
rejecting the FISA request without even showing OIPR a
written product. DOE was exercised enough about Dr. Lee that
Ed Curran wanted to give Dr. Lee a polygraph and pull his
access to classified information (something the FBI had
recommended 14 months prior), but was not willing to stop him
from traveling to Taiwan. The case was a mess, and then it
got worse.
The disagreement between FBI and DOE over how best to
proceed in late 1998 only partially explains why the
investigation lurched forward with FBI seemingly in charge
one moment (letting Dr. Lee travel to Taiwan, contrary to Mr.
Curran's preference) and Mr. Curran prevailing the next
(getting the Albuquerque SAC to overrule the lead case agent
on the polygraph question). Other testimony and documents
provided to the subcommittee paint a more complete and
markedly different picture of the events surrounding the
polygraph of Dr. Lee on December 23, 1998. Unfortunately, the
picture they paint is one of DOE trying desperately to
protect its image from the revelations it expected to come
with the release of the Cox Committee report, with the FBI
going along, and neither agency focusing on the national
security implications of their actions.
To understand the context in which these decisions were
being made, consider that the Cox Committee was taking
testimony in mid-December, and that key portions of the
testimony centered on security at the national labs. The
atmosphere leading up to the Cox Committee hearings has been
described as follows:
"With impeachment as a backdrop, allegations that the
Clinton administration was allowing China easy access to
American secrets collided with charges that China's military
had funneled money into Democratic coffers. The New York
Times reported that the daughter of a senior Chinese military
officer was giving money to Democrats while also working to
acquire sensitive American technology.
"Republicans, opening a new front against a beleaguered
president, created a House select committee, headed by
Representative Cox, to investigate whether the government was
compromising technology secrets by letting American companies
work too closely with China's rocket industry. With its
deadline approaching, the committee stumbled on the W-88
case.
"Mr. Trulock became a star witness, and committee members
were riveted by his testimony. C.I.A. analysts who testified
before the committee agreed there was espionage, people who
heard the secret proceedings said, but were more equivocal
about its value to China." \125\
The Mr. Trulock referenced above is Notra Trulock, former
DOE intelligence chief. According to a DOE chronology, the
Cox Committee was briefed by DOE on November 12, 1998 and
again on December 7. On December 16, Mr. Curran, Mr. Trulock
and the Director of the DOE's Office of Intelligence, Mr.
Lawrence Sanchez, testified again before the Cox
Committee.\126\ Describing the impact of his testimony to the
House panel, Mr. Trulock told the subcommittee on September
27, 2000 that "after our initial appearance and particularly
our second appearance before the Cox Committee in December of
1998, there was a high level of agitation within the Office
of Counterintelligence on the part of Mr. Sanchez and within
the political appointees at the department." \127\ Mr.
Trulock further testified:
"it is certainly not a coincidence that after the FBI
provided the information to the Cox Committee on Dr. Lee and
other espionage cases within the Department of Energy that
for the first time in almost two years, DOE management became
energized about addressing the advice we had received from
Director Freeh in August of 1997." \128\
Mr. Trulock's testimony is supported by documentary
evidence and testimony from other witnesses. A December 18,
1998, memorandum from the FBI's Assistant Director for
National Security, Neil Gallagher, says that Secretary
Richardson would be calling Director Freeh about the Lee
investigation on December 21, 1998. The memorandum explains
that DOE counterintelligence personnel wanted to "neutralize
their employee's access to classified information prior to
the issuance of a final report by the Cox Committee." When
questioned on this point Mr. Curran acknowledged that the
conversation mentioned in the memo had taken place, but
denied any connection between DOE's desire to polygraph
Dr. Lee and the release of the Cox Committee report.\130\
Mr. Curran's account of these events is contradicted by
testimony from other individuals who were also directly
involved. When Director Freeh testified before the Senate
Select Committee on Intelligence on May 19, 1999, he told the
committee:
"DOE was seeking to establish grounds to terminate Mr. Lee
in December of 1998, and they went forward with their
polygraph and interview with that objective. We, at that
point, wanted more time to prepare for a confrontational
interview which in these kinds of cases is the most important
interview." \131\
Other FBI files from this period support the contention
that Secretary Richardson wanted Dr. Lee fired in early 1999.
A January 21 memo from FBI Supervisory Special Agent C. H.
Middleton to Deputy Assistant Director Horan said that "DOE
is anxious to avoid criticism about the case. It removed the
subject's access to classified information on 12/23/98. DOE
wants to fire the subject, but may not have justification to
do so at this time." \132\
None of the information the government had in its
possession at that point would have justified a decision to
fire Dr. Lee, but firing him would have allowed Secretary
Richardson to avoid criticism that the DOE had not taken
action on a major espionage case. Director Freeh's comments
are further buttressed by statements that two security
personnel made to the DOE Inspector General during an
investigation of the decision-making process related to Dr.
Lee's clearance and access. The former Director of LANL's
Internal Security Division, Mr. Ken Schiffer, told the IG
that he first heard Dr. Lee's name on December 21, 1998, in a
conference call with two individuals from the Office of
Counterintelligence, one of whom told him that "the
Secretary wanted Mr. Lee to be fired." \133\ Mr. Richard
Schlimme, the Counterintelligence Program Manager in the
Albuquerque office, told the DOE IG that he had been on
annual leave on December 21, 1998, when he was called to come
in to work to deal with the Wen Ho Lee situation. When he
arrived, Mr. Schlimme was told that "Secretary Richardson
wanted immediate action, so Mr. Curran decided to interview
Mr. Lee immediately." \134\ Further, according to Mr.
Schlimme, "Mr. Curran wanted Mr. Lee removed from the
laboratory regardless of how he did on the polygraph." \135\
In addition to the evidence described above, the
subcommittee has a sworn deposition from the case manager at
FBI Headquarters, Supervisory Agent Craig Schmidt, who said
he had very little control over the investigation in December
1998 because the "Department of Energy was becoming more and
more concerned about how they would appear and how they were
appearing during the [Cox] committee meetings," \136\ In
the context of all the evidence to the contrary, Mr.
Curran's assertion that the decision to act with regard to
Dr. Lee had nothing to do with the imminent release of the
Cox Committee report is not persuasive.
Incorrect reading of the December 23, 1998 polygraph
The subcommittee focused very intently on the question of
whether Dr. Lee passed or failed the December 23, 1998
polygraph for
[[Page S13804]]
three reasons: (1) the erroneous reading changed the course
of the investigation, prompting the FBI to nearly close down
its investigation at a time when the scrutiny of Dr. Lee
should have been increasing, (2) it took an inordinate amount
of time to discover that the initial reading of the polygraph
was wrong, and (3) the public perception that Dr. Lee really
passed the test but the FBI somehow later reversed that
finding is incorrect.
The consequences of the incorrect interpretation of the
December 23, 1998 polygraph are the subject of the next
section of this report. The remainder of this section will
address the matter of the delay in getting the charts to the
FBI and the question of whether Dr. Lee actually passed or
failed this test.
The initial interpretation of the test was made by Wolfgang
Vinskey, a Senior Polygraph Examiner with Wackenhut, a
private firm that had a contract with DOE to conduct
polygraphs. Mr. Vinskey wrote that he had administered "a
DOE Counterintelligence Scope PDD Examination" to Dr. Lee,
and concluded that "this person was not deceptive when
answering the relevant questions pertaining to involvement in
espionage, unauthorized disclosure of classified information
and unauthorized foreign contacts." \137\ Mr. John Mata,
Manager of DOE's AAAP Test Center, reviewed the exam and
concurred with Mr. Vinskey that "upon completion of testing,
the Examinee was not deceptive when answering the relevant
questions. . . ." \138\ Mr. Mata followed up the initial
report with a more detailed memorandum on December 28, 1998,
in which he reiterated to Mr. Curran the information that had
been in the December 23 polygraph report, namely that "data
analysis of this examination disclosed sufficient
physiological criteria to opine Mr. Lee was not deceptive
when answering" the relevant questions.\139\
After the exam, the two FBI agents who were on hand were
briefed on the results of the test. There is a December 21,
1999 memorandum for the record written by John Mata which
describes how the test results were relayed to the FBI.\140\
Mr. Mata says that he told the lead case agent that the
charts did not show significant reaction on three of the
questions, but that "a plus 3 on the fourth question
(relating to having knowledge of anyone he knew who had
committed espionage against the United States) was
close." \141\ Mr. Mata told the agent that Dr. Lee "had
disclosed information during the examination that he had
not previously reported regarding an approach that was
made to him on his recent or a past trip," and gave her a
sheet of paper containing the data analyses.\142\
According to Mr. Mata, the agent wrote down the questions
from the exam and asked "if further processing involved
the charts being reviewed by their polygraph examiner
(specific reference to Roger Black) . . ." to which he
said no." \143\ Mr. Mata's memo also says that at no time
[on that date] was he asked to provide the charts or any
allied data from the test to the FBI.
During the first week of January, Mr. Mata's memo
continues, the entire polygraph package (charts, questions,
data analysis sheets and video tape) were sent to OCI
Polygraph Program Manager David Renzleman in Richland,
Washington. In mid-January, Mr. Mata got a call from Mr.
Renzleman instructing him to provide the local FBI with
everything generated by the polygraph, which he did.
An undated Quality Assurance record of this examination,
prepared by David Renzleman contains the following comments:
"This test was initially classified and consequently DOE
OCI did not get to see the collected charts or video tape
recording until late January 1999.
"When the charts were subjected to the OCI QC [Quality
Control] process, the initial NDI [No Deception Indicated]
opinion could not be duplicated or substantiated.
"The Test Center Manager was advised of these QC concerns
and was requested to send the charts to the Department of
Defense Polygraph Institute (DODPI) which he did.
"DODPI advised the Test Center Manager that they could not
duplicate or support the NDI opinion of this test." \144\
In the "QC Opinion" section of the report, Mr. Renzleman
said, "I am unable to render an opinion pertaining to the
truthfulness of the examinee's answers to the relevant
questions of this test. Additional testing is recommended."
\145\
When the charts and videotape were subsequently analyzed by
FBI polygraph experts in late January or early February, they
concluded that Dr. Lee had failed relevant questions \146\ or
was, at best, inconclusive.\147\ Based on these concerns, the
FBI arranged for additional interviews and a new polygraph on
February 10, 1999. In addition to learning on this date that
Dr. Lee had reactivated his computer account simply by
calling up the help desk and asking that it be restored,\148\
the FBI concluded Dr. Lee failed the February polygraph and
increased its investigative activity, but by then the chances
of salvaging the investigation were slipping away.
There remains a serious question about the chain of events
which led to the delayed discovery that Dr. Lee did not pass
the December 1998 polygraph. A February 26, 1999 memorandum
from William Lueckenhoff, Assistant Special Agent in Charge
in Albuquerque, says:
"The FBI personnel present immediately requested the
polygraph charts and documentation to the polygraph in order
to have it reviewed by FBIHQ. DOE's initial response to this
request, as per Ed Curran, DOE Counterintelligence Office,
was not to allow the FBI access to the tapes and charts, only
the numerical results of the polygraph." \149\
As is discussed elsewhere in this report, Dr. Lee did not
pass the polygraph, and no one other than the initial
reviewers have been able to interpret the charts to say that
he did pass. Given that the charts clearly show that Dr. Lee
did not pass, any effort to prevent their release to the FBI
would be a serious matter. Where DOE was concerned about
criticism because it was being accused before the Cox
Committee of not taking action on the case, a failed
polygraph would tend to prove the critic's point. However, a
passed polygraph, followed by an investigation which cleared
Dr. Lee of the W-88 allegations yet later resulted in his
firing for unrelated security violations would show that
DOE's critics were wrong about the W-88 investigation, but
that DOE was serious about security anyway and ultimately
removed Dr. Lee because he was a security risk. In these
circumstances, any shenanigans with the polygraph charts
would be extremely serious.
Mr. Curran strongly denies the allegation in Mr.
Lueckenhoff's memo and DOE documents indicate that Mr. Curran
was instrumental in getting the full record of the polygraph
into the FBI's hands in January, 1999.\150\
When pressed for an explanation of the February 26, 1999
memo blaming Mr. Curran for the delay in getting the test
results, the FBI took the position that the memo was only a
blind memorandum not intended to capture official witness
statements.\151\ That does not explain why Assistant Special
Agent in Charge William Lueckenhoff would attribute such
remarks to Mr. Curran if he had no factual basis to do so.
Mr. Lueckenhoff's account is consistent with what actually
happened, but the FBI is no longer willing to stand by the
February 1999 memo. It is also possible that by February 26,
1999, after Dr. Lee had failed an FBI polygraph, Albuquerque
realized that its failure to obtain the charts in a timely
fashion (and the creation of the disastrous January 22 memo
clearing Dr. Lee on the W-88 matter) would eventually be
questioned. Saying that the FBI tried to get the charts but
had been denied by Mr. Curran would provide an excuse for the
Albuquerque division's abysmal performance in early
1999. Because the FBI will not stand by the version of
events in the February 1999 memo, it is not possible to
know what really happened. Instead, the FBI's position has
the effect--intended or not--of making it next to
impossible to assign responsibility for giving Dr. Lee
more than a month to regain access to his computer and his
office, enabling him to delete the incriminating evidence
from his computer and destroy the now-missing tapes.
The FBI deserves substantial criticism for its handling of
this investigation, but the record should be set straight on
the result of the December 23, 1998 polygraph. On this
matter, the FBI was correct--Dr. Lee did not pass the
polygraph test.
One of the earliest and most sustained attacks on the FBI's
reading of the December 1998 polygraph came from Dr. Lee's
defense team. After Dr. Lee was held without bail at the end
of 1999, defense attorney Mark Holscher claimed that Dr.
Lee's scores on the 1998 test had been " `off the charts"
in indicating truthfulness." \152\ It is a common defense
tactic to take evidence that might be harmful to the
defendant's position and deal with it up front, trying to put
a positive spin on it. Mr. Holscher's comments that Dr. Lee's
scores were off the charts in indicating truthfulness would
certainly fit into that pattern--taking on an issue that
might have to be dealt with if the case went to trial and
getting a positive interpretation planted in the public's
mind, to include the potential jury pool. As the negotiations
between the defense and the government went forward, Mr.
Holscher continued to press the polygraph issue, claiming
that Dr. Lee had passed the only test that had been properly
administered, and suggesting that the FBI was wrong to claim
that Dr. Lee had failed either exam. Mr. Holscher's
statements on the polygraph are exactly what one would expect
a defense lawyer to do, but they have created the incorrect
impression that the Wackenhut examiners were right and the
FBI was wrong.
Mr. Holscher and Dr. Lee's supporters got help on this
score from a story by CBS reporter Sharyl Attkisson. The
February 2000 news report, titled "Wen Ho Lee's Problematic
Polygraph," claimed that "three experts gave the nuclear
scientist passing scores but the FBI later reversed the
findings. CBS investigation fuels argument that he was a
scapegoat." \153\
Ms. Attkisson asked precisely the right question, ". . .
how could the exact same charts be legitimately interpreted
as `passing' and also `failing?' " \154\ To answer this
question, CBS reached out to Richard Keifer, who was then the
chairman of the American Polygraph Association. Mr. Keifer
was also a former FBI agent who had run the FBI's polygraph
program. The CBS report continues:
"Keifer says, "There are never enough variables to cause
one person to say (a polygraph subject is) deceptive, and one
to say he's non-deceptive . . . there should never be that
kind of discrepancy on the evaluation of the same chart."
"As to how it happened in the Wen Ho Lee case, Keifer
thinks, "then somebody is making an error."
[[Page S13805]]
"We asked Keifer to look at Lee's polygraph scores. He
said the scores are "crystal clear." In fact, Keifer says,
in all his years as a polygrapher, he had never been able to
score anyone so high on the non-deceptive scale. He was at a
loss to find any explanation for how the FBI could deem the
polygraph scores as "failing."
. . . Since Lee was never charged with espionage (only
computer security violations), the content of the polygraph
may be unimportant to his case. But the fact that his scores
apparently morphed from passing to failing fuels the argument
of those who claim the government was looking for a
scapegoat--someone to blame for the alleged theft of masses
of American top secret nuclear weapons information by China--
and that Lee conveniently filled that role." \155\
The CBS report gave the clear impression that the Wackenhut
examiners were correct. Rather than take on the issue, the
FBI simply told CBS "it would be `bad' to talk about Lee's
polygraph, and that the case [would] be handled in the
courts." \156\ The case never went to trial, and the FBI
never got the chance to explain its interpretation of the
exam. The result has been that there are lingering doubts as
to whether the polygraph is a reliable tool, and whether it
was misused by the FBI in the Wen Ho Lee case.
When the case of FBI Special Agent Robert Hanssen broke in
February 2001, FBI Director Louis Freeh ordered, among other
things, an expanded use of the polygraph within the FBI for
counterintelligence purposes. The Judiciary Committee held a
hearing on the utility of polygraphs in law enforcement and
counterintelligence cases, and heard from a distinguished
panel with witnesses offering opinions on both sides of the
issue. With the matter of Wen Ho Lee's polygraph still
unresolved, two of the witnesses were asked to review the
results of the December 23, 1998 polygraph and answer a
series of questions that would address the same concern that
CBS had raised--how can the same charts be interpreted as
both passing and failing?
Dr. Michael H. Capps, currently Deputy Director for
Developmental Programs at the Defense Security Service and
formerly head of DOD's Polygraph Institute, reviewed the
polygraph data and said that he could "render no opinion
regarding whether or not deception is indicated. . . ."
\157\ Mr. Capps went on to describe how he had evaluated the
exam with and without the aid of the John Hopkins algorithm,
which is designed to provide a statistical analysis using a
mathematical model to render a probability of deception. He
noted that "there are what I believe to be substantial
differences in the scores my evaluation produced and those of
the Wackenhut examiner. . . . I cannot account for the
differences between my results and those of the Wackenhut
examiners." \158\
In response to a direct question about how different
examiners could reach substantially different conclusions,
Mr. Capps said, "One would expect two properly trained
examiners evaluating the same data to draw a similar, but not
necessarily identical conclusion. This was not the case when
comparing my evaluation with that of the Wackenhut examiner.
I cannot account for the differences." \159\
One possible explanation for the differing opinions on the
polygraph is that the questions were improperly structured,
making the entire test invalid because the control questions
and the relevant questions were not sufficiently distinct to
permit an accurate differentiation of the responses to each.
When Dr. Capps was asked about the appropriateness of the
questions, he faulted two of the comparison questions used in
the exam and said "these comparison questions were not
sufficiently distinct from the relevant questions so as to
generate a useful basis of comparison." \160\
Mr. Richard Keifer was also asked to evaluate the December
23, 1998 exam in light of his comments to CBS. He provided a
detailed analysis and critique of the test and reported:
"My review of the polygraph examination of Wen Ho Lee
determined the results to be inconclusive. . . . It is my
opinion this examination was not set up, conducted and
reviewed using well-established procedures for counter-
intelligence polygraph testing. This lack of experience in
Foreign Counter-Intelligence polygraph testing contributed to
an incorrect decision, an unacceptable delay in the decision
making process, and negated the potential of fully uncovering
the truth with a timely posttest interrogation." \161\
Mr. Keifer further noted that "I have reviewed these
charts at least a dozen times and have done so under every
favorable assumption I could make and I have never found this
examination to be non-deceptive." \162\
When asked to evaluate the test itself, which was not a
standard set of questions but one that was created
specifically for the examination of Dr. Lee, Mr. Keifer said
that "the fundamental problem with this examination was in
question formulation." He then took issue with both the
relevant questions and the control questions.\163\ This
finding is consistent with the concerns raised by Dr. Capps,
as well as by FBI examiners who noted that Dr. Lee appeared
to be reacting to all the questions, control and relevant.
The structure of the questions used in the test is important
because a polygraph is designed to measure differences
between a subject's responses to control questions, which
should generate little or no reaction, and the relevant
questions where a substantial response is meaningful. Control
questions that produce a reaction have the effect of
minimizing the differences between the reactions to control
questions and relevant questions, thereby rendering the
test less useful.
Mr. Keifer also commented on his CBS appearance:
"I was quoted out of context and I felt it was deliberate.
I had numerous telephonic conversations with Attkisson prior
to the taped interview. She was fully briefed regarding
polygraph procedures. I clearly and fully explained to her
several times that the "scores" of the examiners were high
on the non-deceptive side, but that subsequent testing and
admissions indicated Lee was in fact deceptive. During the
course of our conversations she suggested cover up and
misconduct of various officials in the matter. Unfortunately,
during the taped interview she asked only about the
"scores" and did not provide an opportunity for me to
clarify. In my opinion this was deliberate, and the piece was
manipulated to suggest wrongdoing by the government. Once I
saw the piece, I called officials at the Energy Department
and the FBI to clarify the matter." \164\
The subcommittee's review of the matter shows that Dr. Lee
definitely did not pass the December 23, 1998 exam. The best
that anyone other than the initial examiners has been able to
justify is an "inconclusive" or "no opinion" rating. It
is important that no one has been able to substantiate the
"no deception indicated" finding because any other result
even a "no opinion"--would have put the investigation on a
completely different track. Instead, the government quit
looking at Dr. Lee at the precise moment when it should have
been looking most intently at his activities.
The Consequences of DOE's Interference in the Investigation
Ordinarily, the decision to polygraph an individual or to
remove his access to the classified X-Division spaces would
have only limited ramifications. In the Wen Ho Lee case,
however, the incorrect handling of the polygraph issue was
one of the most consequential mistakes in the entire
investigation, likely costing the government an opportunity
to recover the tapes that ultimately led to Dr. Lee's
indictment and conviction, and creating much angst about the
fate of the nuclear secrets on those tapes. In a June 28,
2001 letter, Assistant Attorney General Daniel J. Bryant
confirmed that "Dr. Lee has told the debriefing team that on
December 23, 1998, the computer tapes at issue in the
indictment were in his X-Division office at the Los Alamos
National Laboratory." \165\
In other words, the tapes containing the "crown jewels"
of American's nuclear secrets, that could "change the global
strategic balance," were sitting in Dr. Lee's X-Division
office and could have been recovered by the government if the
DOE had not gone into the panic mode and put political
considerations ahead of national security concerns when it
became concerned about what the Cox Committee report would
say. The FBI, especially the Albuquerque SAC, bear equal
responsibility for this turn of events for allowing it to
happen.
One of the most fundamental tenets of counterintelligence
work is that when you spook a suspect, you watch him. The
suspect's reaction to unexpected events, whether planned (as
when the FBI decides to confront a suspect in a hostile
interview) or driven by unanticipated events (like DOE's
decision to interview, polygraph and change Dr. Lee's
classified access for no reason that he would know about), is
a critical element of any counterintelligence investigation.
Success often depends on observing and correctly interpreting
that reaction. Even if the suspect does not show any apparent
reaction in the presence of investigators, it is imperative
that he be watched to see what he does when he thinks he
isn't being watched. People with problems react differently
than people who don't have anything to worry about. Failure
to maintain proper surveillance under these circumstances can
lead to the loss of the best opportunity to find out what is
really going on. In the Wen Ho Lee, it cost a lot more than
that.
Dr. Lee was definitely spooked by the interview and
polygraph on December 23. According to an FBI chronology, the
polygraph was completed at 2:18 p.m. and he was told at about
5:00 p.m. that his access to secure areas of X-Division and
to both his secure and open X-Division computer accounts had
been suspended. At 9:36 p.m., Dr. Lee made four attempts to
enter the secure area of X-Division through a stairwell. At
9:39 p.m., he tried again through the south elevator.\166\ At
3:31 a.m. on Christmas Eve, Dr. Lee again tried to gain
access to the X-Division. Had the FBI maintained proper
surveillance, they would have known that Dr. Lee was making
these desperate attempts to get back into the X-Division.
Surely that would have been a clue that further investigation
was necessary. Had the case been handled properly, FBI or DOE
personnel could have done what Dr. Lee eventually did--just
walk into the X-Division and pick up the tapes. Instead of
destroying them, as Dr. Lee says he did, government officials
could have properly secured these tapes containing the crown
jewels of America's nuclear secrets.
In a December 24 meeting, Dr. Lee was told "that he was
being transferred from X-Division to T-Division for thirty
days to allow time for the FBI to complete their inquiry."
\167\ If there had ever been any doubt in his mind as to
whether he was under an FBI investigation, this comment from
DOE removed that doubt. His conduct over the next
[[Page S13806]]
few days shows clearly that he was worried about the
government's sudden interest in him and the fact that his
access to the X-Division had been removed. All told, Dr. Lee
tried to get back into his X-Division office almost twenty
times between the December 23 polygraph and the February 10
exam. Had the FBI and DOE been watching, they might have
wondered why Dr. Lee wanted to get back into the X-Division
so desperately, and they might have gone there to look.
It should be noted that not all of the blame for the FBI's
lack of interest in Dr. Lee's conduct after the polygraph can
be placed on the incorrect interpretation of the polygraph
results. Even if one takes the position that the FBI thought
that Dr. Lee had passed the polygraph, there is no excuse for
completely dropping an investigation solely on the basis of a
passed polygraph, especially when DOE and the case agents
were told that during the pre-polygraph interview Dr. Lee had
admitted foreign contact that he had not previously reported.
The FBI should have continued the investigation on the basis
of that revelation, regardless of the polygraph exam. A
review of the transcript from the March 7, 1999 interview of
Dr. Lee shows that the FBI focused very heavily on that
unreported contact. If it was worth investigating in March,
it should have been worth investigating the previous
December.
DOE's answer as to why it failed to monitor Dr. Lee after
the December 23, 1998 polygraph is both baffling and
informative. DOE's Ed Curran said that "since the FBI was
conducting the investigation of Dr. Lee, it was responsible
for determining the level of monitoring necessary." \168\
All available evidence indicates that the impetus for the
polygraph clearly came from within DOE, and that the FBI
agreed to this at the insistence of DOE, yet DOE washed its
hands of any responsibility for determining whether the
polygraph provoked a response from Dr. Lee. Consider also
that the catalog of Dr. Lee's attempts to get back into the
X-Division was culled from information under DOE's control,
information that the FBI did not have access to unless the
DOE gave it to them. Under these circumstances, it is not
surprising that Dr. Lee's attempts to get back into the X-
Division almost immediately after his access was pulled went
undetected until much later. The FBI says that it did not
learn of Dr. Lee's attempts to reenter the X-Division until
March 13, 2000.\169\
The almost complete breakdown in the surveillance of Dr.
Lee had severe consequences. As the FBI later learned,
"within one hour of reactivation [of his computer account],
he immediately deleted three files, including one which was
named after the graduate student who had worked for him in
1997." \170\ In late January, he began erasing the
classified files from the unsecure area of the computer.
After he was interviewed by the FBI on January 17, Dr. Lee
"began a sequence of massive file deletions . . ." \171\ He
even called the help desk at the Los Alamos computer center
to get instructions for deleting files. After he
was interviewed and polygraphed again on February 10,
within two hours of the time he was told he had failed the
exam, he deleted even more files. All told, Dr. Lee
deleted files on January 20th, February 9th, 10th, 11th,
12th, and 17th. When he called the help desk on January
22nd, his question indicated that he did not know that the
"delay" function of the computer he was using would keep
deleted files in the directory for some period of time. He
asked why, when he deleted files, were the ones in
parentheses not going away, and asked how to make them go
away immediately. He also asked, on February 16, how to
replace an entire file on a tape.\172\
Thus, the report that Dr. Lee had passed the December 23
polygraph gave Dr. Lee precious time to delete and secrete
information. The significance of Dr. Lee's file deletions and
the unreasonable delays in carrying out the investigation
that should have detected and prevented them should not be
underestimated. As FBI Agent Robert Messemer has testified,
the FBI came very close, "within literally days, of having
lost that material." \173\ The FBI was almost unable to
prove that Dr. Lee downloaded classified files. If the
material had been overwritten after it was deleted, "that
deletion by Dr. Lee [would] have kept that forever from this
investigation." In this context, the repeated delays, the
lack of coordination between the FBI and the Department of
Energy, and later between the FBI and the Department of
Justice, are much more serious.
February 10, 1999 to March 8, 1999
On February 10, 1999, Wen Ho Lee was again given a
polygraph examination, this time by the FBI. During this
second test, which Lee failed, he was asked: "Have you ever
given any of [a particular type of classified computer code
related to nuclear weapons testing] to any unauthorized
person?" and "Have you ever passed W-88 information to any
unauthorized person?" \174\ It should be noted that the 1997
FISA request mentioned that the PRC was using certain
computational codes, which were later identified as something
Lee had unique access to. \175\ Moreover, the computer code
information had been developed independently of the DOE
Administrative Inquiry which was subsequently questioned by
FBI and DOJ officials.
After this second failed polygraph, there should have been
no doubt that Dr. Lee was aware he was a suspect in an
espionage investigation, and it is inconceivable that neither
the FBI nor DOE personnel took the rudimentary steps of
checking to see if he was engaging in any unusual computer
activity. Again, this is not hindsight. The classified
information to which Dr. Lee had access, and which he had
been asked about in the polygraph, was located on the Los
Alamos computer system. The failure of DOE and FBI
officials to promptly find out what was happening with Dr.
Lee's computer after he was deceptive on the code-related
polygraph question is inexplicable. As noted above, this
failure afforded Dr. Lee yet another opportunity to erase
files from both the unsecure system and the unauthorized
tapes he had made.
As should have been expected, Dr. Lee used the time
afforded him by the delays to delete the classified
information he had placed on the unclassified system, and to
retrieve and dispose of the now-missing tapes. According to
press reports, Dr. Lee was allowed to return to the X-
Division in January 1999 by an unwitting security office. On
other occasions, he walked in behind division employees. In
fact, he apparently managed to slip in though an open door
just hours after he was barred from X-Division.\176\ He also
approached two other T-Division employees with a request to
use their tape drive to delete classified data from two tapes
(he no longer had access to the one that had been installed
in his X-Division computer since he had been moved from that
division in December 1998).
Nearly three weeks after the polygraph failure, the FBI
finally asked for and received permission to search Lee's
office and his office computer, whereupon they began to
discover evidence of his unauthorized and unlawful computer
activities. Even so, the FBI did not immediately move to
request a search warrant. The three week delay, from February
10 until the first week of March, is inexplicable.
The long hiatus in moving the case forward seems to have
been broken primarily by the impending release of a story on
the W-88 case by the New York Times, after which the case was
once again moved from the national security track onto the
political track. Upon learning of the New York Times story,
government officials asked that it be delayed for several
weeks, "saying they were preparing to confront their
suspect." \177\ It is almost incomprehensible that the FBI
was still not ready, in March 1999, to interview Dr. Lee. The
same argument had been made in December 1998 when the DOE
wanted to polygraph Dr. Lee, so there is absolutely no reason
that the necessary preparations could not have been made in
the interim.
The reporters did not know Dr. Lee's identity, but the FBI
said they worried that he might recognize himself from
details in the article as if he was not already aware that
the FBI was investigating him after having been polygraphed
and having his access to classified information suspended
since December, having been interviewed by the FBI in
January, having been asked to take another polygraph in
February.
The FBI interviewed Dr. Lee on March 5, and the New York
Times published its story the next day, "China Stole Nuclear
secrets for Bombs, U.S. Aides Say." Prompted to move by the
breaking story, the FBI interviewed Dr. Lee again on Sunday,
March 7. It was during this interview that one of the case
agents, at the suggestion of Albuquerque SAC Kitchen, asked
Dr. Lee if he had heard of the Julius and Ethel Rosenberg,
the couple who had been executed for providing nuclear
secrets to the Soviet Union. The reference to the Rosenberg
case, after threats that Dr. Lee would lose his job, be
handcuffed and thrown in jail, was over the top, creating the
inference that the FBI was trying to scare Dr. Lee into a
confession. According to a transcript of the interview:
"Do you know who the Rosenbergs are?" [the agent] asked.
"I heard of them, yeah, I heard them mention," Dr. Lee
said.
"The Rosenbergs are the only people that never cooperated
with the federal government in an espionage case," she said.
"You know what happened to them? They electrocuted them, Wen
Ho."\178\
FBI Director Freeh later acknowledged that this reference
to the Rosenbergs was inappropriate, but he denied that the
FBI ever attempted to coerce a confession from Dr. Lee.\179\
One day after the FBI's confrontational interview, Dr. Lee
was dismissed from Los Alamos. Former LANL
Counterintelligence chief Robert Vrooman, has suggested that
the leaking of Dr. Lee's name to the press had an adverse
impact not only on Dr. Lee but also on the integrity of the
investigation into how the Chinese obtained U.S. nuclear
secrets,\180\ but the investigation was already in deep
trouble before Dr. Lee's name became public.
Reopening the W-88 Investigation
Before turning to the criminal case against Dr. Lee, it is
appropriate to make a comment about the status of the
investigation into the loss of the W-88 information, the
matter at the heart of the DOE's AI and the FBI's
investigation from 1996 to 1999. The September 1999 decision
by the FBI and the DOJ to expand the investigation of
suspected Chinese nuclear espionage \181\ is puzzling,
primarily because it should have happened long ago.
In an October 1, 1999 letter, Attorney General Reno and FBI
Director Freeh explained the rationale for reopening the
case:
"Our decision to take this action in regard to the
investigation into the compromise of U.S. nuclear technology
is the result of two separate inquiries. First, there were
investigative concerns raised by the FBI Albuquerque field
office that began to develop in
[[Page S13807]]
November, 1998, regarding deficiencies in the DOE
Administrative Inquiry. Second, after questions were raised
by Senate Governmental Affairs Committee staff, we started to
re-examine flawed analysis in the conclusions drawn in the
DOE Administrative Inquiry."\182\
This letter is significant on several fronts. First, it
represents the beginning of a top level assault within DOJ
and FBI on the AI as an explanation for why the W-88
investigation had been bungled. The reference to concerns in
the Albuquerque office in November 1998 is misleading all--of
the documents coming out of Albuquerque in 1998 were focused
on getting FISA coverage on Dr. Lee. The documents did
contain acknowledgment that somewhere in the neighborhood of
250 personnel per year had access to the W-88 information,
which was more than had been previously believed, but the
case agent nevertheless pressed for a FISA. It is simply not
accurate to portray the November 1998 documents as raising
questions about the AI as a basis for investigating Dr. Lee.
Subsequent documents from Albuquerque did raise concerns
about the AI. One of the worst in this regard is the January
22, 1999 memorandum which essentially clears Dr. Lee. It
says:
"A review of the pertinent questions asked in the
[December 23, 1998] polygraph exam showed that Lee did not
pass classified information to a foreign intelligence
service. The polygraph charts and other documentation
relating to the examination were made available to FBI AQ by
DOE on 01/22/1999 . . ."\183\
In a section titled "SAC ANALYSIS" David Kitchen wrote
that "based on FBI AQ's investigation it does not appear
that
Lee is the individual responsible for passing the W-88
information." At that point, FBI-AQ had done remarkably
little investigation. The lead case agent had requested a
FISA in November 1998, but had been overruled. By December,
the DOE jumped into the investigation in response to the Cox
Committee hearings and gave Dr. Lee a polygraph. Based on
nothing more than a supposedly passed polygraph--the results
of which Albuquerque received on the same day it was writing
the memo and could not have--analyzed and an interview on
January 17 (during which, according to Director Freeh, Dr.
Lee provided new information about his relationships with
Chinese scientists), the SAC Kitchen was prepared to shut
down the investigation. This is nothing short of outrageous.
Was it mere coincidence that in his "Dr. Lee's not guilty
memo" Kitchen took aim at the AI, which contained the very
allegations that were the subject of testimony before the Cox
Committee? The January 22, 1999 memo does not even address
the allegations, from 1994, that Dr. Lee had helped the
Chinese with codes and software, yet Mr. Kitchen is prepared
to shut down the investigation. Any comments from Mr. Kitchen
regarding flaws in the Administrative Inquiry must be viewed
in the context of the Albuquerque division's bungling of the
Kindred Spirit investigation.
Another significant result of the decision to reopen the W-
88 investigation, and to do so based on the supposedly faulty
analysis in the AI, has been to put FBI Assistant Director
Neil Gallagher on the spot based on his testimony to
Congress. In a November 10, 1999 letter on the question of
why the investigation was reopened, he acknowledged that when
discussing the DOE's Administrative Inquiry (AI) during his
June 9, 1999, testimony before the Governmental Affairs
Committee,\185\ he stated that he "had full credibility in
the report," had "found nothing in DOE's AI, nor the
conclusions drawn from it to be erroneous," and stated there
is a "compelling case made in the AI to warrant focusing on
Los Alamos." \186\
As a result of further inquiry, however, Mr. Gallagher now
has reason to question the conclusions of the AI. He cites an
August 20, 1999, interview by FBI officials of one of the
scientists who participated in the technical portion of the
AI, in which the scientist "stated that he had expressed a
dissenting opinion with respect to the technical aspects of
the AI," and points out that the statement of this scientist
is "in direct conflict with the AI submitted to the FBI
because the AI does not reflect any dissension by the `DOE
Nuclear Weapons Experts.' " \187\
A General Accounting Office investigation of Mr.
Gallagher's comments regarding the AI later concluded that
his testimony had been inaccurate and misleading because he
had ample opportunity to know and should have known that
documents created by the Albuquerque office of the FBI raised
questions about the FBI in late 1998 and early 1999.\188\
In his November 1999 letter, Mr. Gallagher could also have
mentioned the draft of the July 9, 1999 document prepared by
the Albuquerque division, "Changed: FBI-DOE National
Laboratory Assessment. . . ." Had he done so, he would have
reported that:
"Albuquerque is of the firm opinion that the AI should
have been used only for investigative assistance during the
initial portion of the 'Kindred Spirit' inquiry, and that a
more in-depth and comprehensive analysis of the relevant
issues/facts should have been continued through the course of
the investigation." \189\
A subsequent draft of the same document lists half a dozen
reasons why the AI was flawed. The document says that the
espionage could have been done by a network of sources, the
travel analysis was incomplete, the strategic opinions were
preliminary, there had been a disagreement over the extent of
the W-88 information compromise, the Lees had been doing
things at the behest of the Government, and finally, ". . .
the AI was extremely confusing and self contradictory in
reporting its conclusions . . ." \190\
This is a classic case of too little too late, and it
raises questions as to whether the FBI's assault on the AI
was intended to get an investigation back on track or to
spread the blame for a bungled investigation.
The delay by DOJ and the FBI until September 1999 is
perplexing since five governmental reports had concluded,
with varying degrees of specificity, that the losses of
classified information extended beyond W-88 design
information and beyond Los Alamos:
(1) the classified version of the Cox Report (January
1999);
(2) the April 21, 1999 damage assessment by Mr. Robert
Walpole, the National Intelligence Officer for Strategic and
Nuclear Programs; \191\
(3) the unclassified version of the Cox Committee Report
(May 25, 1999);
(4) the Special Report of the President's Foreign
Intelligence Advisory Board (June 1999); and
(5) the Special Statement by Senators Thompson and
Lieberman (August 5, 1999)
All of these reports gave FBI and DOJ ample evidence that
further investigation was necessary. For example, the Cox
Committee report states flatly that "the PRC stole
classified information on every currently deployed U.S.
inter-continental ballistic missile (ICBM) and submarine-
launched ballistic missile (SLBM).\192\ Tellingly, the Cox
Committee notes that "a Department of Energy investigation
of the loss of technical information about the other five
U.S. thermonuclear warheads had not begun as of January 3,
1999 . . ." and that "the FBI had not yet initiated an
investigation" as of that date.\193\ Thus, the failure to
reopen the investigation into the loss of W-88 design
information much sooner, or to even initiate an investigation
of the other losses, simply continued that pattern of errors.
The Prosecution of Dr. Lee
Two weeks \194\ after Dr. Lee was fired from LANL,
investigators discovered a notebook in his X-Division office
containing a one-page computer-generated document showing the
files in the "kf1" directory Dr. Lee had created on the
unclassified portion of common file system.\195\ When it was
discovered that many of these files were highly classified,
the FBI began a criminal investigation of Dr. Lee which led
to his indictment, arrest and pretrial incarceration
beginning on December 10, 1999.
Almost from the moment Dr. Lee was taken into custody, his
attorneys protested the strict conditions of confinement and
worked to secure his release under some combination of home
detention and electronic monitoring. Judge James Parker, who
presided over much of the case, repeatedly urged the
government to relax the conditions of confinement, but the
government steadfastly argued against releasing Dr. Lee, even
under strict monitoring, until September 13, 2000. On that
date, the government entered into a plea agreement with
Dr. Lee under which he would plead guilty to a single
felony count of mishandling government secrets and go free
immediately in exchange for a promise to explain what
happened to the missing tapes.
FBI Director Louis Freeh issued a statement on September
13, 2000, explaining the government's decision to reach the
plea agreement. In relevant part, the statement said:
"In this case, as has often happened in the past, national
security and criminal justice needs intersect. In some cases,
prosecution must be foregone in favor of national security
interests. In this case, both are served.
"As the government indicated previously, the indictment
followed an extensive effort to locate any evidence that the
missing tapes were in fact destroyed, and repeated requests
to Dr. Lee for specific information and proof establishing
what did or did not happen to the nuclear weapons data on
these tapes. None was forthcoming. The indictment followed
substantial evidence that the tapes were clandestinely made
and removed from Los Alamos but no evidence or assistance
that resolved the missing tape dilemma. . . .
"The obligation that rests on the government is first and
foremost to determine where the classified nuclear weapons
information went and if it was given to others or destroyed.
This simple agreement, in the end, provides the opportunity
of getting this information where otherwise none may exist."
\196\
But the sudden reversal of the government's position
flabbergasted Judge Parker. During the hearing to finalize
the plea agreement, he commented from the bench:
"I would like to know why the government argued so
vehemently that Dr. Lee's release earlier would have been an
extreme danger to the government when at this time he, under
the agreement, will be released without any restrictions."
\197\
At a later point in the hearing, the judge continued:
"What I believe remains unanswered is the question: What
was the government's motive in insisting on your being jailed
pretrial under extraordinarily onerous conditions of
confinement until today, when the Executive
[[Page S13808]]
Branch agrees that you may be set free essentially
unrestricted? This makes no sense to me." \198\
The judge was not alone in being puzzled by the
government's handling of the criminal phase of the case. It
is difficult to reconcile the lack of forceful action between
the time the government discovered, in June 1999 at the
latest, that the tapes had been created, with its December
1999 claims that the only way to safeguard the secrets on the
tapes was to hold Dr. Lee virtually incommunicado. As will be
discussed later in this report, the information on the tapes
was extremely sensitive, but it does not necessarily follow
that the pretrial confinement conditions the government
demanded represent the only way to protect that information.
If it was the government's judgement that protecting the
information required extraordinary restrictions on Dr. Lee,
then why not act as soon as the existence of the tapes was
known? \199\ Moreover, if the government was willing, in
September 2000, to accept Dr. Lee's sworn statement as to the
disposition of the tapes (to be verified by polygraph
examination), why could it not have accepted a very
similar offer from Mr. Holscher on December 10, 1999, the
date of Dr. Lee's arrest?
The remainder of this report addresses the government's
handling of: (1) the investigation of Dr. Lee from March-
December 1999, (2) the pretrial confinement of Dr. Lee, and
(3) the case against Dr. Lee. The subcommittee's
investigation supports the following conclusions regarding
these matters: (1) the information on the tapes was highly
sensitive and, if anything, the government should have acted
sooner than it did to find out what happened to them, (2) the
government overreached in demanding such onerous conditions
of confinement prior to trial, and (3) the plea agreement was
an acceptable resolution to the case, one that very likely
could have been had much sooner if the government had not
backed itself into a corner with its aggressive tactics after
December 1999.
The March-December 1999 Investigation \200\
One day after Dr. Lee was fired, the Albuquerque Division
of the FBI (FBI-AQ) met with the U.S. Attorney for the
District of New Mexico, Mr. John J. Kelly. The following day,
Dr. Lee's lawyer, Mr. Mark Holscher, wrote to the government
offering to surrender Dr. Lee's passport and asking whether
Dr. Lee was a target or a subject of investigation. In this
letter, Mr. Holscher also advised the government that his
client intended to travel to Los Angeles for several
days.\201\
On March 11, the FBI learned that another LANL employee had
been asked by Dr. Lee to retrieve a box of documents from his
X-Division office.\202\
After a telephone conversation between Mr. Kelly and Mr.
Holscher on March 15, Mr. Holscher wrote on March 19 asking
that the investigation of Dr. Lee be terminated, and
requesting security clearances so that he could counsel Lee.
In this letter, Mr. Holscher also noted that at least six
newspapers had carried stories quoting unnamed FBI officials
as saying that there was not enough information to indict,
much less convict, Dr. Lee. Mr. Holscher described this
information as Brady material, and said the government had no
evidence that Dr. Lee had any intent to injure the United
States, as would be required under the espionage
statutes.\203\
On March 23, investigators discovered the "kf1" file
listing, and reached a tentative conclusion that classified
files had been maintained on the unclassified portion of the
LANL computer system. That same day, Mr. Holscher wrote to
Mr. Kelly protesting government leaks to the press about the
case, including statements that Dr. Lee had failed to
cooperate with the government and had failed a polygraph
exam. Mr. Holscher pointed out that 28 CFR 50.2(b)(2)
prohibits DOJ personnel from disclosing any information
that "may reasonably be expected to influence the outcome
of a pending or future trial." \205\
Mr. Holscher also sent a letter to FBI Director Louis Freeh
on March 23, demanding an investigation into case-related
leaks. In a clear reference to Dr. Lee's assistance to the
government in the 1980s, Mr. Holscher told Director Freeh
that he had "refrained from explaining to the press the true
facts concerning the Lee's 1986 visit to China and follow-up
activities that are known to the FBI," and requested that
Director Freeh release a statement showing that Dr. Lee had
cooperated with the government.\206\
On March 26, a LANL scientist assisting with the
investigation told the FBI that the "kf1" directory had
been in the open part of the common file system (CFS), that
the file names in the directory suggested they were
classified, and that the files had been deleted from the CFS
on February 11, 1999. The scientist also told the FBI that
Dr. Lee had typed up and stored in a CFS directory letters
seeking employment overseas.
After a telephone conversation between the two men, Mark
Holscher wrote to Robert Gorence on March 29, saying that he
understood from the conversation that Dr. Lee was the subject
of a grand jury investigation rather than a target.\207\ The
difference is significant because being the target of an
investigation is more serious than merely being the subject
of one.
On March 30, a draft rule 41 search warrant affidavit for
Dr. Lee's home was presented to the U.S. Attorney's Office
(USAO) in New Mexico. From April 1-8, personnel in Washington
and the USAO worked on an affidavit for a search warrant.
During this time the FBI was pursuing a dual track, and a
key meeting took place on April 7 between the FBI and
representatives of the Office of Intelligence Policy and
Review. Rather than moving quickly to discover the extent of
the potential damage, FBI and DOJ officials continued to
wrangle over whether the matter should be handled under FISA
or was "way too criminal" for that.\208\ OIPR attorneys
raised their old concerns about the currency and sufficiency
of the evidence against Lee, as well as new concerns about
the appearance of improperly using FISA for criminal purposes
and the prospect of conducting an unprecedented overt FISA
search.\209\ FBI officials indicated that FBI Director Freeh
was "prepared formally to supply the necessary
certifications that this search met the requirements of
the FISA statute--that is, that it was being sought for
purposes of intelligence collection (e.g., to learn about
Lee's alleged contacts with Chinese intelligence)." \210\
The draft FISA application the FBI prepared was never
formally presented to OIPR, in large part because the
criminal search warrant was issued.
On April 9, Attorney General Reno made the necessary
certification for using FISA derived material \211\ in a rule
41 search warrant, and Magistrate Judge William W. Deaton
issued the warrant later that same day. The following day,
April 10, Dr. Lee's home was searched, and he provided
written consent to search his automobiles.
In a letter to Mark Holscher dated April 16, Mr. Kelly and
Mr. Gorence made one demand and several requests. The two
prosecutors demanded the return of any classified material in
Dr. Lee's possession, and requested the names and addresses
of the individuals with whom the Lees stayed during their
March 9 to April 7 trip to Los Angeles. The prosecutors also
told Mr. Holscher of their intent to issue a grand jury
subpoena to Mrs. Lee regarding the 1986 and 1988 trips to the
PRC, and any actions related to those trips.\212\
On April 18, LANL provided two computer reports, one which
outlined the deletion of files by Dr. Lee from his open CFS
directories in January and February, and another describing
the earlier transfer of these files from the closed to open
CFS. A week later, according to an FBI chronology, a
technical expert assisting the FBI in the investigation said
that the information Dr. Lee had downloaded would not be
sufficient for a foreign power to build or duplicate U.S.
weapons, but that "the files would significantly enhance
their program and save them years of research and testing."
\213\
On April 30, a LANL computer security expert informed the
FBI of two incidents involving Dr. Lee which showed up in a
review of the Network Anomaly Detection and Intrusion
Recording system, one in 1993 and another in 1997.\214\ That
Dr. Lee was flagged by this system in 1997, while he was
under investigation, but the FBI only learned about it in
April 1999 is simply inexplicable.
On May 5, the FBI was informed by a LANL scientist that a
notebook recovered during the search of Dr. Lee's residence
contained directions for transferring classified files to a
Sun Sparc computer workstation and from there onto portable
DC6150 computer tape cartridges. On May 9, a LANL computer
official provided a report on how the file transfers had
been accomplished.
In response to suggestions from counsel for Mrs. Lee that
she might claim marital communication privilege, spousal
privilege or both, Mr. Kelly and another prosecutor, Ms.
Paula Burnett, wrote to Mr. Brian Sun on May 5. The
prosecutors laid out the areas of proposed questioning, to
include: (1) biographical information on Mrs. Lee, her
husband and their children; (2) contacts the Lees have with
extended family, friends or business contacts in the PRC and
Taiwan; (3) cooperation with the FBI in the 1986-1988 period;
and (4) her knowledge of Dr. Lee's work and any job related
activity that he did at home. Focusing on the Mrs. Lee's
assistance to the FBI, the prosecutors explained that:
"Not only would we ask her the details of what she was
asked to do and what she did during the time of cooperation
with the FBI, but also the extent to which her husband was
aware of those activities and participated in them." \215\
The next day, Mr. Sun responded in writing, saying that he
had spoken to Mr. Holscher and felt it was appropriate for
Mrs. Lee to assert the marital communications privilege and
the spousal privilege. He said, however, that he might be
willing to make an attorney proffer.\216\
On May 11, FBI-AQ prepared a Letterhead Memorandum on the
Lee case, which was followed on May 16 by a written status
report from USA Kelly to Deputy Attorney General Eric Holder
and Attorney General Reno.
The next day, May 17, a LANL computer official provided a
report on potential movement of files on Dr. Lee's CFS
directories from LANL computers to outside computers.
The U.S. Attorney presented a prosecution memorandum on May
27, and requested guidance form DOJ because "the Atomic
Energy Act violation had never been prosecuted before." He
anticipated difficulty showing Lee intended to harm the U.S.
as a necessary element of the crime.\217\ The FBI, USAO, and
Criminal Division met in Washington, DC, on the same day the
prosecution memorandum was presented, to discuss the case,
and two days later FBI-AQ provided a written prosecutive
report to USAO.
[[Page S13809]]
Mr. Holscher wrote on June 9, complaining that the
government had not yet advised him what it wanted to discuss
with Lee and had not sought to schedule a meeting. Six days
later, Mr. Kelly responded that the government was
considering serious charges, but ruled out espionage charges
under 18 USC 794 (the most serious espionage charge), and
suggested a meeting for June 21. In the letter, Mr. Kelly
said that he had postponed a previously scheduled meeting
so the government could complete its investigation. He
further explained to Mr. Holscher:
"I did so not to inconvenience your client, but rather to
insure that the interview would take place toward the
conclusion of the investigation at a time when I would be
able to provide meaningful information about potential
charges and, in turn, your client would be motivated to
provide a more complete explanation for his potentially
criminal conduct. As I stated in our telephone conversation
last night, that time has now come.
"You should know that I will be making a charging decision
in this matter before the end of June and that the offense
conduct under consideration involves various actions by your
client over the last decade that collectively have
compromised some of our nation's most highly sensitive and
closely guarded nuclear secrets." \218\
At the June 21 meeting, which was attended by USAO, FBI and
Criminal Division representatives, Dr. Lee's counsel asserted
that he had only downloaded unclassified data onto the
unsecure computer and then on to tapes. (When later
confronted with evidence that Dr. Lee had, in fact,
downloaded classified data onto portable tapes, counsel
claimed that if Dr. Lee had done so, any such tapes had been
destroyed.) The meeting was followed by a written status
report to the DAG and the AG the following day.
In the interim, on June 15, the FBI learned that Dr. Lee
had asked a colleague to retrieve a box of materials that he
had left in his X-Division office when he had been
transferred to the T-Division. The FBI was told that the
colleague had retrieved the box for Dr. Lee, but had taken
the materials to LANL security, which had questions regarding
some of the contents of the box.\219\ The FBI chronology does
not mention when the colleague had retrieved the box or what
LANL security did about the contents. The absence of details
raises the inference that the now-missing tapes could have
been in the box, and LANL security may have passed them back
to Dr. Lee without knowing what was on them. The FBI has not
answered this question.
During the first week of July 1999, Dr. Lee's lawyers made
written presentations to the Albuquerque USAO and the
Criminal Division in Washington, each of which was designed
to dissuade the government from taking action against Dr.
Lee.
On July 15, a LANL scientist provided a report on the
creation of Tape N, which was downloaded directly to tape in
1997. It was also during July that the government learned
that one of the six tapes which had been recovered from Dr.
Lee's T-Division office contained a classified file, and that
two others contained deleted classified files. LANL computer
officials advised the government that one tape had been
cleansed of classified data in February 1999, on the unsecure
computer workstation belonging to a T-Division colleague of
Dr. Lee.
Three days after a meeting in Washington between the USAO
and the Criminal Division, Mr. Holscher sent a letter to the
government explaining that Dr. Lee had not violated the
Atomic Energy Act of 1954. The letter was followed one day
later, on July 27, by a meeting in Washington between counsel
for Dr. Lee and the Criminal Division.
Mr. Holscher wrote again on August 2, offering to make
additional factual submissions, which prompted a response
from Mr. Kelly on August 4, saying the government would
review anything Mr. Holscher submitted but wanted a complete
explanation from Dr. Lee himself. At the same time, Mr. Kelly
sent a letter to Eugene Habiger, Director of DOE's Office of
Security and Emergency Operations, seeking to include in a
proposed indictment of Dr. Lee information about Dr. Lee's
downloading activity.
After an August 9 telephone conversation between counsel
for Dr. Lee and Richard Rossman, Chief of Staff of the
Criminal Division, Mr. Holscher wrote a letter on August 10
stating that Dr. Lee would not submit to any additional
interviews and offering further arguments why Dr. Lee had not
violated 18 USC 793.
On August 16, Criminal Division Chief of Staff Rossman
wrote to counsel for Dr. Lee advising that the government had
not yet made a decision whether to charge Dr. Lee, and asking
for additional information (which had been discussed during
the July meeting) by August 30.
Following a supplemental written presentation by Dr. Lee's
counsel on August 30, Mr. Kelly wrote to Mr. Holscher on
September 3 asking for information about the location and
custody of the tapes from the time of their creation until
the present.
On September 8, representatives of the Criminal Division,
USAO, LANL and DOE met in Washington to discuss the handling
of classified information in the prosecution of Dr. Lee. All
of the DOE and LANL representatives concurred as to the
significance of the data at issue. By October 4, DOE had
prepared a draft classification guide governing issues
related to Dr. Lee's illicit computer activity and the
classified files involved.
On October 14, the Senate Judiciary Committee approved a
resolution authorizing subpoenas relevant to the work of the
Department of Justice Oversight subcommittee, including the
Wen Ho Lee matter. (A second, broader resolution was
authorized on November 17.\220\)
On October 27, Assistant Attorney General James Robinson,
Criminal Division, wrote a memo to USA Kelly recommending
that Dr. Lee be prosecuted under the Atomic Energy Act of
1954.
On November 3, the Department of Justice Oversight
subcommittee held its first hearing on the Wen Ho Lee case.
Much of the testimony focused on the failure of the FBI to
properly investigate, from 1995 to 1998, the information it
had related to Dr. Lee potentially engaging in surreptitious
electronic communications.
The Lee case was discussed at an National Security Council
meeting on November 11, with DOE, DOJ and LANL
representatives in attendance.
On November 15, a LANL scientist wrote a "Draft of Input
to Damage Assessment" regarding the case, which was faxed to
USA Kelly on November 15. At the request of the NSC, the CIA
prepared a damage assessment regarding the material on the
missing tapes on November 24.
The case was briefed at the White House on December 4. A
September 24, 2000 Washington Post article by Walter Pincus
and David A. Vise described the events leading up to and the
discussion at the December 4 meeting as follows:
"The decision to prosecute Lee was made at a meeting in
[Attorney General] Reno's conference room shortly before
Thanksgiving. Despite lingering question's about Lee's
motives, according to participants, there was unanimity among
the federal prosecutors from New Mexico and their superiors
in Washington that the government should bring a massive, 59-
count indictment against Lee using the Atomic Energy Act.
Indeed, officials in Washington had decided to charge Lee
with intent to injure U.S. national security and (not "or")
to aid a foreign adversary.
"Crossing a final hurdle, Reno called a meeting of senior
national security officials in the White House Situation Room
on Dec. 4, 1999, to explain how much classified information
prosecutors were prepared to reveal in court. In addition to
Reno, Kelly, Freeh, and Richardson, those present included
national security adviser Samuel R. "Sandy" Berger, CIA
Director George J. Tenet and deputy defense secretary John J.
Hamre.
"Robert D. Walpole, the national intelligence officer for
strategic and nuclear programs, began the meeting with a
formal assessment that the loss of the data downloaded by Lee
would be a serious blow to national security
"The meeting ended after Reno offered her assurance that
prosecutors were prepared to drop the case immediately if the
judge were to grant a motion, sure to come from the defense,
that the data downloaded by Lee had to be introduced, in
full, in open court." \221\
On December 7, the Department of Justice Oversight
subcommittee sent letters requesting testimony in a closed
hearing from nine FBI witnesses, including two of the case
agents, FBI General Counsel Larry Parkinson, Albuquerque
Special Agent in Charge David Kitchen, Assistant Director for
National Security Neil Gallagher, and other case supervisors
and managers. The hearing, scheduled for December 14, was to
explore the circumstances of the December 23, 1998 polygraph
and the relationship between the government and the Lees.
On December 8, as required by statute, the Attorney General
sent letters to Energy Secretary Richardson and USA Kelly
approving charges against Dr. Lee under the Atomic Energy Act
of 1954. That same day, Mr. Kelly spoke to Mr. Holscher by
phone, telling him that indictment was imminent and asking
for information about the missing tapes. At some point in
late 1999, prior to the indictment, Mr. Kelly told Mr.
Holscher that the case might be resolved without an
indictment and advised Mr. Holscher to look at the latter
sections of 18 USC 793.
Although Mr. Holscher faxed a letter at 8:24 a.m. (Pacific
Time) on December 10, offering to make Dr. Lee available for
a polygraph by a mutually agreeable polygrapher to verify
that Dr. Lee did not mishandle the tapes or provide them to a
third party, Dr. Lee was indicted and arrested later that
same day.
Also on December 10, FBI Director Freeh wrote to request
that I "delay hearings on any aspect of this investigation
until the conclusion of the current criminal proceedings
resulting from the indictment handed down today." \223\ In
explaining why it was necessary to delay subcommittee
hearings, Director Freeh said:
"In my view, the potential that your hearings could
inadvertently interfere with the prosecution is substantial.
Subcommittee hearings at this time risk impacting upon the
Government's ability to successfully prosecute Mr. Lee by
creating issues that may not presently exist. Moreover, it is
critical for our national security that we have every
opportunity to learn as much as we can from Wen Ho Lee in a
carefully controllable setting. Given the gravity of the
allegations and charges, and the potential opportunities that
could be lost by hearings, I respectfully ask that you not go
forward at this time. I hope you will agree that to do
otherwise poses a substantial risk not only to the
prosecution but to the Government's ultimate ability to
discover the full extent of the damage done." \224\
[[Page S13810]]
When Director Freeh met with Senator Torricelli and me on
December 14, he made the same arguments. The subcommittee
agreed to withhold hearings until the case was resolved,
which occurred on September 13, 2000, with the acceptance of
the plea agreement.
With the inexplicable exception of never seeking electronic
surveillance on Dr. Lee, the chronology presented here shows
a thorough and methodical investigation. The discovery that
Dr. Lee had created his own portable nuclear weapons data
library must, in large measure, be credited to the
extraordinary level of effort and skill on the part of the
investigators from the FBI and the DOE. In Senate testimony,
Director Freeh said that the investigation had required the
"interview of over 1,000 witnesses, review of 20,000 pages
of documents in English and Chinese, and the forensic
examination of more than 1,000 gigabytes containing more than
one million computer files . . ." \225\ Any assessment of
the investigation must acknowledge the vast amount of work
involved in discovering Dr. Lee's illegal computer
activity after he tried so diligently to erase any traces
of what he had done. In this regard, the government
personnel should be commended.
There are, however, two areas for concern \226\ related to
the conduct of the March-December 1999 investigation. The
first is the delay from the time the existence of the tapes
was known, which occurred at the latest in June, and the time
Dr. Lee was indicted in December. The chronology provided by
the Department of Justice shows continuing activity on the
part of the government, and multiple contacts with Dr. Lee's
attorneys seeking information about the fate of the tapes,
but nothing commensurate with its subsequent declarations in
court that the only way to keep the information from falling
into the wrong hands, where it could change the global
strategic balance, was to hold Dr. Lee in very strict
pretrial confinement. In responding to a question about this
delay, Director Freeh testified, "This was an extremely
complex investigation and prosecutive process. It could not
have been brought, in my view, fairly and accurately before
it was." \227\
The second great concern is that the FBI did not seek
electronic surveillance of Dr. Lee during this period.\228\
In view of the government's later pleadings that Dr. Lee
could, in effect, upset the global strategic balance merely
by saying something as seemingly innocuous as "Uncle Wen
says hello," it is difficult to comprehend why the
government never sought electronic surveillance in an effort
to discover the whereabouts of the missing tapes. In the
December 1999 detention hearings, the U.S. Attorney, John
Kelly, suggested that if Dr. Lee still had the tapes, he
could send a signal to a foreign intelligence service to
extract him. If he wasn't in custody "then we would be
dealing with a situation in which an individual not in
custody is going to be snatched and taken out of the
country." \229\ As early as April 30, 1999, the FBI had been
told by a LANL scientist that if the files Dr. Lee downloaded
were given to a foreign power, they would have the "whole
farm," the "crown jewels" of the U.S. program which had
been obtained through decades of effort by the U.S.\230\
If the government felt his communications were such a
potential threat, why was there never an effort to ascertain
with whom and about what he was communicating during the
March-December 1999 period? This lapse severely undercuts the
government's later arguments that the harsh conditions of
confinement were only to protect the downloaded information.
The Pretrial Confinement of Dr. Lee
After his arrest on December 10, 1999, and a detention
hearing before U.S. Magistrate Judge Don Svet on December 13,
1999, Dr. Lee was placed in pretrial confinement in the Santa
Fe County Correctional Facility. The conditions of his
incarceration, including the Special Administrative Measures
(SAM) taken to prevent him from possibly communicating to
others about the location of the tapes or the material
thereon, have received a great deal of attention from Dr.
Lee's attorneys, the press, and eventually, Congress.
The government's decision to hold Dr. Lee under such strict
conditions raises a number of important points. Defendants
are presumptively entitled to pretrial release except in
certain circumstances specified in statute. Because none of
the ordinary conditions for pretrial confinement--for
example, when a violent criminal is captured after a killing
spree--applied to Dr. Lee, Judge Parker explained in his
order that:
"Only after a hearing and a finding that "no condition or
combination of conditions will reasonably assure the
appearance" of the defendant and the safety of the
community, can a judge order a defendant's pretrial
detention. 18 USC 3142(e). A finding against release must be
"supported by clear and convincing evidence." 18 USC
3142(f)." \231\
In reaching a decision on pretrial detention, the judge was
required to take into account the available information
regarding: (1) the nature and circumstances of the offense
charged, (2) the weight of the evidence against the person,
and (3) the history and characteristics of the person.\232\
At a series of detention hearings from December 13 through
December 29, before two different magistrates, the government
painted a stark picture of Dr. Lee's conduct. A December 23,
1999 filing by Mr. Gorence summarized the government's
position:
"Lee stole America's nuclear secrets sufficient to build a
functional thermonuclear weapon. Lee absconded with that
information on computer tapes, seven of which are still
missing. Those missing tapes, in the hands of an unauthorized
possessor, pose a mortal danger to every American. The
government does not know what Lee did with the tapes after he
surreptitiously created them. Despite previous denials, Lee
now admits that he created the tapes--tapes which the
government will establish contain an entire thermonuclear
weapon design capability. The risk to U.S. national security
is so great if Lee were to communicate the existence,
whereabouts, or facilitate the use of the tapes that there is
no condition or combination of conditions that will
reasonably assure the safety of this country if Lee is
released." \233\
The Atomic Energy counts with which Dr. Lee had been
charged required that the conduct at issue be done with
intent to injure the United states. On this score, the
government argued that:
"Lee's secretive and surreptitious actions to gather the
classified TAR files, to down-partition and download the
files on to tapes, to lie to colleagues to facilitate his
actions, and then his subsequent deletions to cover his
tracks all evidence an intent to injure the United States.
Lee's intent to injure the United States also can be inferred
by the additional testimony that the government will present
to this Court that Lee, in taking complete thermonuclear
weapon design capability, stole information that was not in
any way related to his duties as a hydrodynamicist. The
United States also will offer additional testimony that
there was no work related reason to ever move the
classified information that Lee moved and downloaded on to
computer tapes from the secure to the unsecure computing
environment. These facts evidence an intent to injure the
United States by depriving it of exclusive control of its
most sensitive nuclear secrets." \234\
The government also argued that the only way to safeguard
the information on the tapes Dr. Lee created was to hold him
in detention, with special restrictions on his
communications. As described in the government's motion on
December 23, these measures included segregation from other
prisoners; limiting his visitors to immediate family members
and his attorneys, having an FBI agent monitor all family
visitations, denial of access to a phone except to call his
attorneys, and mail screening.\235\
After the required hearings, Judge Parker issued his order
on December 30, 1999, in which he concluded that "at this
time there is no condition or combination of conditions of
pretrial release that will reasonably assure the appearance
of Dr. Lee as required and the safety of any other person,
the community, and the nation." \236\ He then addressed the
nature of the alleged crimes, the weight of the evidence, and
the characteristics of the defendant. Judge Parker noted that
while the offenses charged fell short of espionage, they were
"quite serious and of grave concern to national security."
\237\ The judge also described the surreptitiousness with
which the tapes had been created, citing the government's
contention that Dr. Lee had misled a T-Division employee by
claiming to want to download a resume to tape.\238\ In
addressing the weight of the evidence against Dr. Lee, Judge
Parker noted that the government had presented direct
evidence of the downloads, which was the relevant conduct at
issue. With regard to the intent to injure, which was also an
element of the charged offenses, he noted that:
"although the Government did not present any direct
evidence regarding Dr. Lee's intent to harm the United States
or to advantage a foreign nation . . . the Government did
present circumstantial evidence of Dr. Lee's intent to
violate these provisions of the Atomic Energy Act and the
Espionage Act." \239\
With regard to the characteristics of the defendant, Judge
Parker made points on both sides, noting that Dr. Lee had
"lied to LANL employees and to law enforcement agents and
has consciously deceived them about the classified material
that he had put on the tapes and about contacts with foreign
scientists and officials." \240\ On the other hand, the
judge noted Dr. Lee's longstanding ties to the community, and
said, "Aside from Dr. Lee's deceptive behavior regarding the
issues raised in this case, his past conduct appears to have
been lawful and without reproach." \241\ And, finally, the
judge concluded that the government had presented "credible
evidence showing that the possession of information by other
nations or by organizations or individuals could result in
devastating consequences to the United States' nuclear weapon
program and anti-ballistic nuclear defense system." \242\
In concluding, the judge stated:
"With a great deal of concern about the conditions under
which Dr. Lee is presently being held in custody, which is in
solitary confinement all but one hour a week when he is
permitted to visit his family, the court finds, based on the
record before it, that the Government has shown by clear and
convincing evidence that there is no combination of
conditions of release that would reasonably assure the safety
of any person and the community or the nation. The danger is
presented primarily by the seven missing tapes, the lack of
an explanation by Dr. Lee or his counsel regarding how, when,
where, and under what circumstances they were destroyed, and
the potentially catastrophic
[[Page S13811]]
harm that could result from Dr. Lee being able, while on
pretrial release, to communicate with unauthorized persons
about the location of the tapes or their contents if they are
already possessed by others. Although Dr. Lee's motion to
revoke Magistrate Judge Svet's detention order is denied at
this time, changed circumstances might justify Dr. Lee
renewing his request for release. If, for instance, Dr. Lee
submits to a polygraph examination . . . and the results of
the exam allay concerns about the seven missing tapes, Dr.
Lee's request for pretrial release can be reconsidered in a
significantly different light." \243\
The judge's final statement before denying Dr. Lee's motion
for pretrial release was an admonishment to the government
"to explore ways to loosen the severe restrictions currently
imposed upon Dr. Lee while preserving the security of
sensitive information." \244\
Having lost the initial fight for pretrial release, Dr. Lee
returned to jail where the conditions of his confinement
became a rallying point for his defenders. The following
excerpt is taken from an Internet site established and
maintained by Dr. Lee's supporters:
"He was arrested on December 10, 1999 and is now put in
solitary confinement in a cell in a New Mexico jail 23 hours
a day. He is allowed only one hour of visit a week from his
immediate family. He is shackled any time he is out of his
cell, at his waist, his ankle and his wrist except when he is
meeting with his lawyers (and even then he must wear an ankle
chain). A chain around his belly connecting to his handcuff
prevents him from raising his hand above his head. We were
told that two U.S. Marshals with machine guns accompanied him
whenever he goes within the confine of the prison and a
`chase car' with armed Marshals follows Dr. Lee when he is
moved from Santa Fe to Albuquerque and back. This is highly
unusual and we questioned that other prisoners received the
same treatment. The lawyer said Lee was kept separate from
other prisoners during his hour-long exercise period. He is
finally allowed to speak Mandarin with his family but with
two FBI agents listening in. We were told by his families
that Dr. Lee was always in shackles and chain even during
their one hour weekly meeting. We were also told that the
food provided by the prison system was inappropriate to Dr.
Lee because he has long adopted to live on a non red meat
diet after his colon cancer surgery several years ago."
\245\
The government, however, portrayed Dr. Lee's conditions of
confinement as a matter of necessity to protect the
classified information he had downloaded to portable tapes.
In a series of memoranda written by Lawrence Barreras, Senior
Warden of the Santa Fe County Correctional Facility, on
December 10 and 14, 1999, and January 4, 2000, the terms of
Dr. Lee's confinement were outlined in detail. Specifically,
Dr. Lee's confinement consisted of 24 hour supervision by a
rotation of guards, permission to speak only with his
attorneys and immediate family members (his wife, daughter
and son) and in English only, non-contact visits from his
immediate family members limited to one hour per week, no
personal phone calls, and that he remain secured in his
cell 24 hours a day.\246\ Further, Dr. Lee was to remain
in full restraints (leg and hand irons) anytime he was to
be out of his cell being moved from one location to
another.\247\
As previously noted, Dr. Lee's lawyers protested his
conditions of confinement almost from the beginning. In a
December 21, 1999 letter to Mr. Kelly and Mr. Gorence, lead
defense attorney Mark Holscher said:
"Apparently at the request of the Department of Justice
and the FBI, Dr. Lee's jailers have barred his family from
visiting him for more than one hour a week. In addition, the
agents have demanded that my client and his wife speak only
English and do so in the presence of a federal agent.
"Please provide me immediately with a written description
of the conditions that you have placed on Dr. Lee's
imprisonment, and a statement of the legal authority for
these draconian conditions." \248\
The legal authority to which Mr. Holscher referred was at
that time still being assembled. Title 28 of the Code of
Federal Regulations, section 501.2, provides that upon
direction of the Attorney General, special administrative
measures may be implemented that are reasonably necessary to
prevent disclosure of classified information, upon written
certification . . . by the head of a member agency of the
United States intelligence community that the unauthorized
disclosure of classified information would pose a threat to
the national security and that there is a danger that the
inmate will disclose such information. Energy Secretary Bill
Richardson sent a letter to the Attorney General on December
27, 1999, in which he said:
"In my judgment, such a certification is warranted to
enable the Department of Justice to take whatever steps are
reasonably available to it to preclude Mr. Lee, during the
period of his pretrial confinement, any opportunity to
communicate, directly or through other means, the extremely
sensitive nuclear weapons data that the indictment alleges
Mr. Lee surreptitiously diverted to his own possession from
Los Alamos National Laboratory (LANL). I make this
certification at the request of the U.S. Attorney for the
District of New Mexico, John Kelly, and upon the
recommendations and evaluations of the Director of the
Federal Bureau of Investigation and DOE's Director of
Security and Emergency Operations, Eugene Habiger." \249\
By January 6, the Department of Justice had reviewed the
administrative segregation procedures at the Santa Fe County
Correctional Facility and determined with some additional
measures, the standard segregation policy would adequately
confine Dr. Lee. In a letter to Warden Lawrence Barreras, the
local U.S. Marshal, John Sanchez described ten additional
measures that were necessary:
1. Mr. Lee is to be kept in segregation until further
notice (single cell).
2. Mr. Lee is not to have contact with other inmates at
anytime.
3. All outgoing mail EXCEPT LEGAL MAIL will be screened by
the FBI.
4. Mr. Lee will not be permitted personal telephone calls.
5. Mr. Lee will be allowed to place collect telephone calls
to attorneys of record [Mr. John Cline and Mr. Mark
Holscher].
6. Mr. Lee will be allowed contact visits with his
attorneys only.
7. Mr. Lee will be allowed non-contact visits with
immediate family members. . . . The FBI must be on site to
monitor each visit. Visits will not be allowed unless an FBI
agent is present.
8. Visitors are to be restricted to Attorneys of Record and
immediate family.
9. Any changes to Mr. Lee's conditions of confinement will
be authorized by USMS [U.S. Marshals Service] personnel only.
10. Mr. Lee is NOT TO BE REMOVED FROM THE FACILITY BY
ANYONE UNLESS AUTHORIZED BY THE USMS.\250\
That same day, another of Dr. Lee's attorneys, Mr. John
Cline, wrote to Mr. Gorence expressing the view that the
conditions of confinement were unlawful. He requested three
specific changes, including: (1) two hours outdoors every
day, (2) permission for Dr. Lee to have a television, radio,
and a CD player in his cell and to receive access to
newspapers, and (3) a daily shower.\251\
A January 12, 2000 memorandum to the Attorney General from
Principal Associate Deputy Attorney General Gary Grindler
demonstrates that at least some of the concerns of Dr. Lee's
lawyers were taken to the highest reaches of the Justice
Department. The memo notes that the Attorney General had
"advised that some individuals have expressed concern about
Dr. Lee's access to exercise," and explains that the order
for Special Administrative Measures that she was being asked
to sign "does not limit Dr. Lee's access to exercise.
According to the Santa Fe County Jail rules, Dr. Lee will be
limited to one-hour per day of exercise, as are all
administrative segregation prisoners." \252\
On January 13, 2000, the Attorney General formally
authorized the special administrative measures for a period
of 120 days in a memorandum to John W. Marshall, the Director
of the Marshals Service. The conditions of confinement were
as previously described. It should be noted, however, that
from December 10, 1999 until the date the Attorney General
signed the order on January 13, 2000, any special conditions
of confinement imposed on Dr. Lee would have been without
proper authority. If federal regulations require
certifications from agency heads and the Attorney General, it
can only be presumed that restrictions such as those imposed
on Dr. Lee would not be properly authorized until all the
certifications were in place. It is troubling that the
government was not better prepared to make the necessary
certifications in a timely fashion.
As the end of the initial 120 days approached, the Attorney
General received a new letter from Secretary Richardson on
May 4, in which he expressed his support for continuing the
SAM. However, he mentioned the conditions of Dr. Lee's
pretrial confinement, saying:
"At the same time, I want to emphasize my concern, that to
the extent consistent with protecting the sensitive weapons
information to which the indictment of Dr. Lee pertains, Dr.
Lee's civil rights as a pre-trial detainee should be honored.
I understand that, in response to a request by Dr. Lee's
counsel, the Department of Justice has arranged for a
translator to be present when he speaks with his family so
that he can speak Chinese. I further understand that
arrangements have been made to permit him to visit with his
family on weekends, to have access to Los Alamos National
Laboratory with his lawyers under appropriate safeguards so
that he can prepare his defense, and to have access to a
radio and reading material of his choice, as well as a
reasonable period of exercise every day. Finally, I
understand that the conditions of his confinement are in no
respect more restrictive than those of others in the
segregation unit of the detention facility, where he is
confined specifically to protect against further compromise
of classified information. Based on this information, I am
satisfied that his civil rights are being adequately
protected." \254\
At about the same time the FBI SAC in Albuquerque, David
Kitchen, wrote to the new U.S. Attorney in New Mexico, Norman
Bay, and expressed his unequivocal support for maintaining
the SAM in place. Agent Kitchen expressed his "firm
conviction that any loosening of the SAM would enable Dr. Lee
to communicate with an agent of a foreign power regarding the
disposition or usage of the materials contained in the seven
missing tapes." \255\
In July, the new lead prosecutor on the case, George
Stamboulidis, arranged to have restraints removed from Dr.
Lee during his scheduled recreation times,\256\ but this did
not occur without some difficulty.\257\
[[Page S13812]]
An August 1, 2000 letter from Warden Barreras to Mr.
Stamboulidis describes the final state of Dr. Lee's
confinement:
"In response to your letter date July 30th, 2000 inmate
Wen Ho Lee began recreating without restraints on July 18th,
2000 at 8:30 a.m. As of August 5th, 2000 he is also allowed
participation in the recreation yard 7-days a week for a
period of 1-hour per day.
"In reply to inmate Wen Ho Lee's housing conditions:
inmate Wen Ho Lee is permitted to have a radio in his cell,
this gives him the ability to listen to news programs; he
receives reading materials per the SAM guidelines.
"In addition, an exception to the rule was made to grant
inmate Wen Ho Lee visits on Saturdays as opposed to the
regular Friday schedule: this was done in order to
accommodate his family. Supervisors are the only staff that
are assigned to oversee his escort and visit. Inmate Wen Ho
Lee also receives extra fruit at dinnertime, daily." \258\
On September 7, 2000, U.S. Attorney Norman Bay requested
that the Attorney General continue the SAM, which had last
been extended on May 12. In his letter, he outlined recent
developments in the case, including Judge Parker's order
granting Dr. Lee's renewed motion for pretrial release on
August 24. Mr. Bay informed the Attorney General of the
government's motion to stay the request of that order, and
noted that the Tenth Circuit had stayed Judge Parker's order
pending further review. Mr. Bay concluded his request to the
Attorney General by noting that "nothing has changed since
the special administrative measures were first imposed to
reduce the risk of Lee disclosing highly sensitive classified
information to an unauthorized possessor," and requested
another 120 days of SAM.\259\
Before the Attorney General acted on the request, the
government reached a plea agreement with Dr. Lee, which ended
his confinement.
After the plea agreement, the conditions of Dr. Lee's
confinement were widely discussed in a way that they had not
been discussed before, with new allegations that a light had
been left on his cell 24-hours a day, and that he had been
kept in shackles an inordinate amount of time. During a
series of three hearings in late September and early October
2000, Department of Justice witnesses were asked about the
conditions of detention. Attorney General Reno made the point
that Dr. Lee's lawyers had not previously complained about
the leg-restraints and that no one had ever mentioned the
light before.\260\ Mr. Bay explained that the light in
question was "a dull blue light, kind of like a night light,
in Dr. Lee's room . . . [used] to make sure that if someone
walked by and looked inside his cell that they could make
sure that he was there and that he was doing okay." \261\
The Attorney General also read into the record a memorandum
from Raymond L. Cisneros, the local sheriff in Santa Fe who
served as the jail monitor. The memorandum, dated March 10,
2000, was to the county manager and explained that Mr.
Cisneros had met with Dr. Lee after receiving phone calls
from unknown persons claiming that Dr. Lee was not being
treated well. According to the memo:
"Other than being incarcerated, he had no complaints. The
staff was treating him very well. He singled out Warden
Barreras and Deputy Warden Romero as treating him great. . .
. His only request was for additional fruit at the evening
meal, which I relayed to Warden Barreras.
"I gave him my business card and told him to contact me
through his attorney if there was any mistreatment of other
issues regarding his incarceration. . . . Because of the high
profile nature of this case, I felt it was necessary to
either confirm or disprove the allegations. Mr. Lee was very
surprised about the calls and stated, `I haven't complained
to anyone about the jail because I am being treated very
well.' " \262\
Realizing that the hearings had not provided all the
necessary information on the confinement issue, the DOJ later
provided several hundred pages of relevant documents. Much of
the discussion above has been drawn from these documents. The
Department also sent a letter, dated January 20, 2001, which
provided additional detail on the matter. Assistant Attorney
General Robert Raben explained that the manner in which Dr.
Lee had been treated flowed "directly from a policy that
sets bright line rules that apply to all prisoners under
defined circumstances. These bright line rules are, in the
Department's view, better than an alternative that would
require detention facility personnel to make ad hoc decisions
in each individual prisoner's case. A rule allowing such
discretion would invite both favoritism and abuse." \263\
Mr. Raben went on to explain that, because there is no
federal detention facility in New Mexico, Dr. Lee had been
housed at the Santa Fe County Detention Facility, under
its administrative segregation policies, with the
additional condition that he be allowed no unmonitored
communications. According to Mr. Raben:
"While housed in the Santa Fe County Detention Facility,
Dr. Lee was subject to all of that facility's other
regulations for all prisoners in administrative segregation
in addition to the ban on unmonitored communications. One of
those requirements is that prisoners in administrative
segregation must be in "full restraints" (handcuffs, waist
chains, and leg irons) whenever they are outside of their
cells within the facility, including during exercise periods.
Dr. Lee was not in restraints while in his cell. In July
2000, after the issues was raised by Dr. Lee's attorneys, the
restraints policy was modified uniquely for Dr. Lee so that
he, unlike others in administrative segregation could
exercise without restraints." \264\
Mr. Raben further explained that Dr. Lee was transported
for all court appearances and meetings with his attorneys by
the U.S. Marshals, under standard procedures, which included
"full restraints" during transport, and at all times except
when Dr. Lee was in a holding area cell administered by the
Marshals Service and when he was meeting with his attorneys.
During such meetings, the leg irons remained on, but Mr.
Raben said that Dr. Lee's attorneys had never objected to
that procedure.\265\
After reviewing the documents and testimony on the
conditions of Dr. Lee's pretrial confinement, it is clear
that the reasonableness of the government's actions turns on
the question of whether or not it was really necessary to
restrict his ability to communicate. The government was
convinced that the only way to protect the national security
was to prevent Dr. Lee from communicating. Having taken that
position, the remainder of the government's actions were
simply to further the objective of limiting Dr. Lee's ability
to communicate. Although some of the government's responses
were not as prompt as one might like--for example, taking
more than a month to get the initial SAM guidelines signed by
the Attorney General--the government seems to have been
generally responsive to requests from Dr. Lee's attorneys.
That is not to say that the government's actions were
appropriate, however, because the government has not made a
showing as to why it was necessary to hold Dr. Lee under such
strict terms of confinement in the first place. If he had not
communicated the whereabouts of the tapes to a third party in
the period prior to his arrest, what made the government
believe he would do so from jail? None of the documents,
testimony or other information available to the subcommittee
provides a compelling answer to this question. While the
government may have believed such harsh conditions were
necessary, they have not made a convincing case. Judge Parker
was not convinced by the government's arguments, and granted
Dr. Lee's renewed motion for pretrial release on August 24,
2001. In his remarks at the plea hearing, Judge Parker
expressed his sentiments, telling Dr. Lee that "since by
the terms of the plea agreement that frees you today
without conditions, it becomes clear that the Executive
Branch now concedes, or should concede, that it was not
necessary to confine you last December or at any time
before your trial." \266\
The Case Against Dr. Lee
Had the government not reached a plea agreement with Dr.
Lee, the case was scheduled for trial in late November 2000.
When the government settled, many questioned the
appropriateness of the plea agreement because it seemed to be
in such stark contrast with what the government had argued
all along. To ascertain whether the plea agreement was
appropriate, it is first necessary to examine the
government's case.
Although the government would likely have won a conviction
because many elements of the charged conduct were not
disputed Dr. Lee could not credibly deny that he had made the
tapes containing vast quantities of classified nuclear
weapons data this would not have been an easy case. The
government faced a number of obstacles, including: (1)
challenges to the government's claims about the importance of
the material on the missing tapes, (2) threats by Dr. Lee's
attorney to take the government on a "long, slow death march
under CIPA," (3) claims that Dr. Lee was the victim of
selective prosecution based on racial profiling, and (4) the
issue of Dr. and Mrs. Lee's assistance to the government
during the 1980s. None of these obstacles would have been
unsurmountable. Each is discussed below.
The Importance of the Missing Tapes
As previously noted, government witnesses testified at Dr.
Lee's bail hearing that the information on the tapes was the
"crown jewels" of our nuclear secrets that could, in the
wrong hands, change the global strategic balance. When Dr.
Lee's lawyers renewed their motion for pretrial release in
July 2000, they made a direct assault on this claim. The
defense offered depositions from Dr. Harold Agnew, former
Director of LANL, and Dr. Walter Goad, a Fellow Emeritus at
LANL, both of whom took issue with the government's
characterization of the material on the tapes. Dr. Lee's
lawyers also noted that the information in question was not
classified at the highest level--Top Secret--and had, in
fact, been placed in a special category called "Protect as
Restricted Data" or PARD when Dr. Lee downloaded it.
When Judge Parker held three days of hearings in August
2000 to consider Dr. Lee's renewed motion for pretrial
release, he got testimony from Dr. John Richter that the
information on the tapes was 99% unclassified.\267\ The
government was also forced to acknowledge that the
information in question was classified as Secret
Restricted Data (SRD) rather than Top Secret Restricted
Data (TSRD), and could therefore be sent through certified
or registered mail, as demonstrated in the following
excerpt from the hearing on August 17:
Mr. Cline: SRD, unlike TSRD, can be, for example, double
wrapped and sent by registered mail from one classified
location to another, can it not?
[[Page S13813]]
Dr. Robinson: That is true today, yes.
Mr. Cline: And TSRD can not be sent by mail?
Dr. Robinson: That is correct.
Mr. Cline: . . . . the information that we are talking
about here, which has been described as the crown jewels,
could be double wrapped and sent by registered mail from
Washington, D.C. to New Mexico, correct?
Dr. Robinson: Correct.\268\
The defense team also noted that the material Dr. Lee had
downloaded fell into a category called Protect As Restricted
Data, or PARD, when he made the tapes. The definition of
PARD, taken from the U.S. Department of Energy Office of
Security Glossary of Terms, is as follows: A handling method
for computer-generated numerical data or related information
which is not readily recognized as classified or unclassified
because of the high volume of output and low density of
potentially classified data.\269\
As described in the judge's order for Dr. Lee's pretrial
release, the effect of the expert opinions offered by Drs.
Agnew, Goad and Richter, the defense's showing that the
material was SRD as opposed to TSRD, and that the material
was marked as PARD when it was downloaded was to "show that
the information Dr. Lee took is less valuable than the
government had led the Court to believe it was and less
sensitive than previously described to the Court. . . ."
\270\
Judge Parker also raised a question as to whether the
missing tapes contained "all the information needed to build
a functional thermonuclear weapon." \271\ He went on to say,
"In sum, I am confronted with radically divergent opinions
expressed by several distinguished United States nuclear
weapons scientists who are on opposite sides of the issue of
the importance of the information Dr. Lee took.\272\ The
judge's findings on the sensitivity of the material on the
tapes were a principal factor in his decision to order Dr.
Lee's pretrial release, which he did on August 24, 2000.
When the government settled the case with a plea agreement
less than three weeks later, it gave the impression that it
was backing away from its claims about the importance of the
material. This had the unfortunate effect of reinforcing
the public perception that the government was persecuting,
rather than prosecuting Dr. Lee. Like the judge, the
subcommittee can only rely on the testimony of expert
witnesses, but it seems that the government's witnesses
made the stronger arguments in this regard.
The most concise description of the information Dr. Lee
downloaded is found in the government's public filing in
response to Dr. Lee's appeal of Judge Parker's initial denial
of bail, the relevant portions of which are excerpted below:
"The source codes model and simulate every aspect of the
complex physics process involved in creating a thermonuclear
explosion. The source codes are written to design specific
portions of a nuclear weapon--either the primary or the
secondary.
"Although nuclear weapons source codes contain all of the
physics involved in a thermonuclear weapon, the source codes
themselves require "data files"--both classified and
unclassified--to run actual simulations. Data files contain
all of the physical and nuclear properties of materials
required for a nuclear explosion. . . . Data files become
classified as SRD [Secret Restricted Data] when the
properties of the materials are most directly relevant to
nuclear weapons, i.e., in environments involving very high
pressures and temperatures. . . .
" `Input decks' are mathematical descriptions of the
actual geometry and materials within a nuclear device itself.
In essence, an input deck is an `electronic blueprint' of
either a primary or a secondary within a nuclear weapon.
". . . [Dr.] Lee down-partitioned and downloaded all of
LANL's significant nuclear weapon primary and secondary
design codes in their entirety. . . . In addition, Lee down-
partitioned and downloaded "all of the data files required
to operate those codes," as well as multiple input decks
representing actual nuclear bomb designs that ranged in
sophistication from relatively simple to complex.
". . . . For a group or state that did not have the
indigenous scientific capability to do it alone, the
information would represent an immediate capability to design
a credible nuclear explosive. A country that had some
experience with nuclear explosives could use the information
to optimize its nuclear bombs. An advanced nuclear state
could use the information to augment their own knowledge of
nuclear explosives and to uncover vulnerabilities in the
American arsenal which would help them to defeat our weapons
through anti-ballistic missile systems or other means."
\273\
At the August detention hearings, government scientists
elaborated on the significance of the material and,
specifically the increased importance that came from the way
the files had been put together on the tapes. Dr. Paul
Robinson, president of Sandia National Laboratories,
testified that the tapes "were very carefully designed to be
loaded with the subroutines that would be needed for each
design code to be placed right behind that design code. And
so I believe they should not require a lot of additional
instruction.\274\ In other words, the collection of files was
more than just a collection of files--it had been assembled
so as to ensure that the data files called for in the codes
were available at the right place, making it possible for the
codes to actually run when executed.
The government also explained its rationale for claiming
that the information on the tapes could change the global
strategic balance. After a lengthy discussion of the
technical aspects of ballistic missile defense and the
challenges presented by Multiple Independently Targeted
Reentry Vehicles (MIRVs), which are generally quite small,
Dr. Robinson expressed his concern that the tapes Dr. Lee
made could enable another nation to develop devices that
would have reentry vehicles approximately the size of
orange traffic cones. \275\ Such small warheads would
present an enormous challenge to U.S. ballistic missile
defenses, even more difficult than that of defending
against single warhead weapons which are larger (about the
size of a minivan or small bus).
While it might be tempting to simply state that one group
of scientist's arguments on this issue is most persuasive, it
is not necessary to do so. One of the key witnesses who
testified in support of Dr. Lee's position at the August 2000
hearings, Dr. John Richter, subsequently modified his
position. The following exchange took place at an October 3,
2000 hearing before the Department of Justice Oversight
subcommittee:
Senator Specter: Dr. Richter, you have been quoted as
testifying before Judge Parker that at least 99 percent of
the nuclear secrets that Dr. Lee downloaded to tapes were
unclassified. Is that an accurate statement?
Dr. Richter: An accurate statement regarding the codes. I
still maintain that. The materials properties, I do not think
I was referring to that at that time, If I did say it that
way then I did not mean it and I erred.\276\
Dr. Richter also acknowledged that the input decks
contained important information, \277\ but ultimately took
the position that the loss of the information on the tapes
would be "marginally harmful, at worst." \278\
In evaluating Dr. Richter's opinion on the value of the
information on the tapes, it is helpful to consider that "in
1995, he was the first to suggest that the Chinese might have
significant information about the W-88 warhead. Even though
he eventually backed off that opinion, it helped start the
investigation that led to the discovery of Dr. Lee's download
and his jailing." \279\ Dr. Richter later put his dual roles
at the start and at the end of the Wen Ho Lee case in
perspective for a reporter when he said, "If I had any
influence in getting him out, I figured that's a payback."
\280\
In sum, the information on the tapes was clearly important.
It does not necessarily follow, however, that the government
was right to hold Dr. Lee in harsh pretrial conditions on
that basis. In fact, in the August hearings, the judge was
only ruling on the question of whether not Dr. Lee should
remain in pretrial confinement--under conditions that were
considerably harsher than he would be subjected to if he had
been convicted. If the case had gone to trial, the government
would undoubtedly have prevailed on the matter of whether
or not the material on the tapes was important. The
government's error was not in claiming the material was
important, but in claiming that the only way to protect it
was to hold Dr. Lee under such harsh conditions.
The Classified Information Procedures Act (CIPA) issues
CIPA establishes a framework for handling trials involving
classified information, with the objective of protecting both
national security information and the rights of the
defendant. One of the key concepts in CIPA is the provision
permitting substitutions for classified information to
prevent the government from having to expose that information
at trial. Rather than show the actual material at trial, the
government is permitted to offer a document that conveys the
same information in unclassified form. The judge presiding
over the case reviews the material in question and the
government's proposed substitutions. If the judge finds that
the substitutions are an adequate representation of the
material in question, the case goes forward. If the judge
finds the government's substitutions lacking, the government
can make an interlocutory appeal of the judge's ruling,
meaning that the appeal is decided before the case goes
forward rather than after as is the usual fashion. If the
government loses a CIPA ruling, it can also simply drop the
case.
Although the prosecution of Dr. Lee ended before the CIPA
issues were fully tested in court, the defense clearly
intended to implement a classic graymail tactic of forcing
the government to dismiss the case by claiming that secret
information had to be revealed in open court to guarantee
their client a fair trial. According to U.S. Attorney Norman
Bay:
"In late May, we met with defense counsel in this case. .
. . And the defense lawyer said that he would never take a
plea to any count in the indictment--that is, `he' being Dr.
Lee--and that if the Government wasn't willing to accept, the
defense was going to put the United States on a, quote,
`long, slow death march under CIPA.' " \281\
Senator Specter replied, "Mr. Bay, if somebody had told me
when I was a prosecuting attorney they were going to put me
on a long, slow death march, I would say let's start
walking.\282\
One of Dr. Lee's attorneys, Mr. John Cline, was the lead
attorney on CIPA issues. He told the judge that using
classified information in the trial: would be necessary for
[[Page S13814]]
proving four central defense arguments: that most of the
downloaded material was already in the public domain; that
some of the computer codes contained flaws that made them
less useful; that the codes were related to Dr. Lee's work;
and that they were difficult to use without user manuals,
which were not on the tapes." \283\
The defense found a sympathetic ear with Judge Parker on
these issues. In an order filed August 1, 2000, the judge
gave the government two weeks to provide substitute language
for specified classified information. He agreed with Dr.
Lee (and opposed the government) as to the relevance of
particular information to the defense. For example, Judge
Parker said that:
"Although the parties dispute the existence or magnitude
of any `flaws' or imperfections in the various codes at
issue, the Court nonetheless finds that evidence of those
alleged flaws or imperfections is relevant to the Defendant's
intent to secure an advantage to a foreign nation or to
injure the United States. Evidence of these alleged flaws and
imperfections is also relevant for use in the Defendant's
cross-examination of witnesses and in the Defendant's
rebuttal of Government witnesses' testimony on the issue of
the sensitive nature of these codes." \284\
The Court delivered another blow to the Government when he
ruled that:
"Evidence making a comparison of the input decks of Files
1 through 19 and Tape N to a nuclear weapons blueprint is
relevant to the Defendant's intent. In addition, this
evidentiary comparison is relevant to the cross-examination
of witnesses and to the Defendant's rebuttal of Government
witnesses' testimony on the Government's assertion that the
input decks constitute an electronic blueprint of a nuclear
weapon." \285\
Consonant with these determinations, the judge ordered the
government to propose substitutions by August 14, with the
defense to respond by August 21. Any issues that could not be
agreed upon were to be resolved at a hearing on August
31.\286\
The government was perhaps most concerned that the argument
about flaws in the codes could force an in-depth discussion
of the codes in open court, something it was not prepared to
do. There was also a very real concern about permitting Dr.
Lee to make a comparison between an actual blueprint and the
electronic version of a weapon contained in the input deck.
These would have been challenges, but the government had not
taken any of its appeals when it made the plea deal, and was
a long way from having to cede the case on CIPA grounds.
Allegations of Selective Prosecution/Racial Profiling
Among the more sensational allegations of government
misconduct in this case are charges that Dr. Lee was selected
for investigation and prosecution based on his ethnicity. The
terms "selective prosecution" and "racial profiling" have
been used to describe how the government allegedly decided to
focus on Dr. Lee. The subcommittee's review of these
allegations shows that the evidence simply does not support
charges that Dr. Lee's ethnic heritage was a decisive factor
in the government's actions during any phase of this case.
In June 2000, Dr. Lee's defense team filed a motion "for
discovery of materials relevant to establishing that the
government has engaged in unconstitutional selective
prosecution." \287\ As grounds for this discovery request,
the defense team claimed that Dr. Lee had "concrete proof
that the government improperly targeted him for criminal
prosecution because he is 'ethnic Chinese."' \288\ The
defense's memorandum cited four examples as proof of such
targeting:
"A sworn declaration from a LANL counterintelligence
official who participated in the investigation of Dr. Lee
that Dr. Lee was improperly targeted for prosecution because
he was "ethnic Chinese."
"Videotaped statements of the FBI Deputy director who
supervised counterintelligence investigations until last year
admitting that the FBI engaged in racial profiling of Dr. Lee
and other ethnic Chinese for criminal counterintelligence
investigations.
"The sworn affidavit the U.S. Attorney's Office used to
obtain the warrant to search Dr. Lee's home, in which the FBI
affidavit incorrectly claimed that Dr. Lee was more likely to
have committed espionage for the People's Republic of China
(PRC) because he was "overseas ethnic Chinese."
"A posting to the Los Alamos Employees Forum by a LANL
employee who assisted counterintelligence investigations and
personally observed that the DOE engaged in racial profiling
of Asian-Americans at Los Alamos during these
investigations." \289\
The memorandum went on to explain that even if Dr. Lee did
not have the direct evidence of bias, he had:
"satisfied the stringent requirements of United States v.
Armstrong, 517 U.S. 456 (1996), which held that . . . a
defendant is nevertheless entitled to discovery if he
provides some evidence that similarly situated people have
not been prosecuted and that his investigation and
prosecution were caused by improper racial motivations."
\290\
At the plea hearing in September 2000, Judge Parker noted
from the bench that the government had made a deal with Dr.
Lee only a short time before it would have been required to
produce to the judge a substantial volume of material on the
selective prosecution issue,\291\ raising the inference that
the government reached the plea agreement to avoid its
discovery obligations on the selective prosecution issue. A
Department of Energy review of ethnic bias within the
department concluded that there was room for improvement on
ethnic sensitivity,\292\ but none of the survey's results
supported the allegations that Dr. Lee had been targeted
because of his ethnicity. An April 2001 review by DOE
Inspector General Gregory Friedman was even more direct,
concluding that "information reviewed by the Office of
Inspector General did not support concerns regarding unfair
treatment based on national origin in the security processes
reviewed." \293\
Because these charges have not been rebutted, the public
may have been left with the impression that Dr. Lee's
allegations were correct, and that the government acted out
of racial or ethnic prejudice. Any such impression is
injurious to the public's trust in the institutions which are
charged with enforcing the nation's laws and must be properly
addressed.
In pleading the case that Dr. Lee was targeted for criminal
investigation because he is ethnic Chinese, Dr. Lee's lawyers
alleged that "the troubling chain of events that led to Dr.
Lee's indictment began when the DOE's Chief Intelligence
Officer, Notra Trulock, incorrectly concluded in 1995 that
the PRC had obtained the design information for the W-88
warhead from someone at the Los Alamos National
Laboratory." \294\ The defense memorandum further alleges
that the Administrative Inquiry which was issued by Mr.
Trulock in May 1996 listed Dr. Lee as the main suspect,
prompting the FBI to open a criminal investigation of Dr.
Lee.\295\
There is legitimate debate about the scope and conclusions
of the AI, and that subject is addressed elsewhere in this
report, but the defense's allegations are inaccurate in two
major ways. First, the memorandum overstates Mr. Trulock's
role in the development of the AI, which was written by Dan
Bruno and an FBI Special Agent who was assigned to the DOE
for the purpose of helping to conduct the AI. Although Mr.
Trulock was an aggressive advocate in the 1995-1996 period of
the argument that the Chinese nuclear weapons program had
successfully targeted the U.S. labs for espionage, he had
only a limited role in the investigation which resulted in
the list of names upon which Dr. and Mrs. Lee appeared.
Second, and more importantly, the defense memorandum fails to
acknowledge that the FBI was predisposed to focus on Dr. Lee
because he was already under investigation, albeit at a lower
level than what happened after the AI was issued.
The cumulative effect of these errors has been to create
the incorrect impression that somehow Mr. Trulock was
directly or primarily responsible for the government's focus
on Dr. Lee. The defense memorandum fails to even address the
question of how Mr. Trulock supposedly played a role in the
prosecution of Dr. Lee when Mr. Trulock left government
service in August 1999, nearly four months before Dr. Lee was
indicted.\296\
To bolster its case that Mr. Trulock was responsible for
focusing on Dr. Lee, the defense memorandum cites Mr. Robert
Vrooman, who was Chief Counterintelligence Officer at LANL
from 1987 until 1998. The defense quoted Mr. Vrooman as
saying that "Mr. Trulock's office chose to focus
specifically on Dr. Lee because he is `ethnic Chinese.'
Caucasians with the same background and foreign contacts as
Dr. Lee were ignored," and that "racial profiling was a
crucial component in the FBI's identifying Dr. Lee as a
suspect." \297\
The bevy of civil lawsuits that this case has spawned will
have to sort out whether anyone has violated anyone else's
rights or engaged in slander or defamation, but for the
purposes of this report, several observations about Mr.
Vrooman's allegations are appropriate. First, his statement
that "Caucasians with the same background and foreign
contacts as Dr. Lee were ignored" is factually incorrect.
While any fair reading of the document would suggest that
the authors of the AI were of the opinion that Dr. and
Mrs. Lee were the prime suspects, the document also listed
several other individuals, some of whom were Caucasian,
and recommended that the others be investigated as well.
Therefore, it is simply inaccurate to state that Mr.
Trulock's office focused specifically on Dr. Lee, for any
reason, let alone because he was ethnic Chinese.
Second, Mr. Vrooman raised questions in the late 1980s
about Dr. Lee's contacts with Chinese officials and
identified Dr. Lee to Energy Department officials as a
potential suspect in the W-88 case.\298\ He also formerly
subscribed to the theory that the Chinese had obtained
information about the W-88 through espionage, telling the FBI
at one point of a "smoking gun" in the case.\299\ Thus,
although Mr. Vrooman has become critical of the conclusions
of the AI and its focus on Dr. Lee, he was instrumental in
relaying the DOE analysis regarding the extent of the PRC
espionage to the FBI. Had Mr. Vrooman doubted the analysis of
the DOE's review group, he could have raised those concerns
then rather than saying that a smoking gun had been
discovered. When challenged on this point during a hearing,
Mr. Vrooman said that he had called Mr. Trulock's office in
May 1996, but Mr. Trulock was not in. He said that he did not
further pursue the matter because:
"My supervisor, who was the lab's director, told me he
wanted me to improve my relationship with Mr. Trulock and
what I was about to say would not have done that.
"So we decided, as a matter of course, to let the FBI have
this case. We had worked with the FBI for years. They had
always protected people's civil rights and did the case
[[Page S13815]]
well and we thought they would quickly come to the same
conclusion we had." \300\
Mr. Vrooman also said that he met weekly with FBI agents on
the case and routinely expressed reservations, which came to
a head in December 1998 when "we were basically thinking
that Lee was not the right man." \301\ Given that Mr.
Vrooman retired from Los Alamos on March 13, 1998,\302\ it
remains unclear as to how he was sufficiently informed on the
case in December of that year to make judgements of this
sort.
And, finally, it should be noted that Mr. Vrooman was one
of the three individuals disciplined for his role in failing
to remove Dr. Lee from access after the Director of the FBI
recommended twice in late 1997 that Dr. Lee's clearance be
removed.\303\ The subsequent discovery that Dr. Lee had been
engaged in massive illegal downloading reflects poorly on Mr.
Vrooman's conduct as the lab's counterintelligence chief and
gives him a strong motive to minimize Dr. Lee's conduct and
to allege government discrimination. Any assessment of Mr.
Vrooman's opinion of the government's handling of the
case against Dr. Lee must be made with these facts in
mind.
Furthermore, when pressed for examples of supposed bias on
the part of the government, Mr. Vrooman fell short. At an
October 3, 2000 hearing of the Judiciary subcommittee on
Department of Justice Oversight, Senator Grassley pursued
this line of questioning. Senator Grassley asked for
information to substantiate Mr. Vrooman's allegation that
whenever Dr. Lee's motive [for the alleged espionage against
the United States] was discussed, it came down to ethnicity.
The following exchange occurred:
Mr. Vrooman: Well, the Department of Justice representative
asked the FBI what Lee's motive was because it was not clear
to him and the response was an elaboration on how the Chinese
focus their efforts on ethnic Chinese. That is one example.
And there are others, conversations over the years since this
investigation proceeded, that that was the only motive.
Senator Grassley: Okay. Could you point to any
documentation that would back up the point that was just
made?
Mr. Vrooman: No, sir, I cannot.
Senator Grassley: Or the points that you are making about
ethnicity being of prime concern?
Mr. Vrooman: I do not believe there are any documents.\304\
In fact, there are documents which describe Dr. Lee's
motives, but they run counter to what Mr. Vrooman alleges. In
the November 10, 1998 request for electronic surveillance on
Dr. Lee, the newly appointed FBI case agent describes several
incidents from Dr. Lee's past and states their relevance to
the issue of motive. One section of this November 1998 FISA
request from the Albuquerque office describes how Dr. Lee
sent numerous documents to Taiwan's Coordinating Council of
North America (CCNA) in the late 1970s and early 1980s, and
says that Dr. Lee told the FBI that:
"his motive for sending the publications was brought on
out of a desire to help in scientific exchange. During the
same interview, Dr. Lee stated that he helps other scientists
routinely, and had no desire to receive any monetary or any
other type of reward."\305\
The memo continues, saying the Albuquerque Division of the
FBI believes that Dr. Lee's actions in sending these
documents to a foreign government without proper
authorization "shows that Wen Ho Lee has the propensity to
commit and engage in the crime of espionage to include
willingly providing documentation to foreign officials. . .
."\306\ This discussion of motive makes no mention of Dr.
Lee's ethnicity. If documents or information provided to a
foreign government could injure the United States or aid a
foreign country, the crime of espionage has still been
committed even if the transfer was motivated by a desire to
promote scientific exchange and in the absence of a desire
for monetary reward.
The November 10, 1998 memorandum also describes a meeting
at Los Alamos in early 1994 during which it became apparent
that Dr. Lee had a relationship with a top PRC nuclear
weapons scientist. A reliable source quoted this top PRC
nuclear scientist as saying of Dr. Lee, "We know him very
well. He came to Beijing and helped us a lot." \307\ The
source further reported that Dr. Lee had helped the
Chinese Academy of Engineering Physics "with various
computational codes used in fluid dynamics which is a very
important aspect of thermal nuclear [sic] weapons design
work." \308\ The Albuquerque memo cited these specific
acts as showing "Wen Ho Lee's propensity to associate
with foreign governments and provide information to
foreign governments and therefore the propensity to aid in
and commit acts of espionage." \309\ These statements
demonstrate clearly that the government's assertions about
Dr. Lee's motives were based on specific acts he was known
to have committed rather than on the fact that he is
ethnic Chinese. These specific acts gave the government
ample reason to investigate him and the allegations of Mr.
Vrooman and others, that the government relied only on
ethnic profiling, are simply incorrect.
In fact, all of the arguments put forward by Dr. Lee's
lawyers on the racial profiling issue are a skewed
interpretation of the same point--namely the U.S.
government's recognition that the PRC intelligence services
focus on Chinese-Americans. Consider the second and third
examples cited in the discovery memorandum, where the defense
claims that former FBI Deputy Director Paul Moore has
confirmed that Dr. Lee was targeted by the FBI due to racial
profiling, and that the affidavit in support of a search
warrant for Dr. Lee's home claimed that Dr. Lee was more
likely to have engaged in espionage for the PRC because he
was ethnic Chinese. Neither of these claims stands up to even
the most minimal level of scrutiny because both are
misrepresentations of what was actually said.
The defense memorandum on selective prosecution quotes
former FBI Deputy Director Paul Moore as saying in a
televised interview with Jim Lehrer on December 14, 1999:
"There is racial profiling based on ethnic background.
It's done by the People's Republic of China. . . . Now the
FBI comes along and it applies a profile, so do the other
agencies who do counter intelligence investigations they
apply a profile, and the profile is based on People's
Republic of China, PRC intelligence activities. So, the FBI
is committed to following the PRC's intelligence program
wherever it leads. If the PRC is greatly interested in the
activities of Chinese-Americans, the FBI is greatly
interested in the activities of the PRC as [regards] Chinese-
Americans." \310\
To say that the United States government is cognizant of
the fact that the PRC prefers to target individuals for
elicitation based on their ethnicity is completely different
from saying that an individual would be more likely to engage
in espionage because he or she is a member of a particular
ethnic group. The former statement about recruitment efforts
of PRC intelligence services would be a logical, relevant
and acceptable observation so long as it was based on
fact. The latter statement, implying that an individual
would be more likely to engage in espionage on the basis
of his or her race, would be an outrageous, biased and
unacceptable claim that would have no place in any law
enforcement or counterintelligence investigation.
In the Wen Ho Lee case, the government's assertions were
confined to acknowledging that the PRC focused on overseas
ethnic Chinese, without making inferences that the targeted
individuals would be more likely to respond positively
because of their Chinese heritage. The defense memorandum
cites FBI Special Agent Michael Lowe's April 9, 1999
affidavit in support of a search warrant, saying that it
leaves no doubt that improper racial profiling was a
substantial basis for the targeting of Dr. Lee. The defense's
assertion on this point is incorrect. In relevant part, the
affidavit says:
". . . PRC intelligence operations virtually always target
overseas ethnic Chinese with access to intelligence
information sought by the PRC. Travel to China is an integral
element of the Chinese intelligence collection tradecraft,
particularly when it involves overseas ethnic Chinese. FBI
analysis of previous Chinese counterintelligence
investigations indicates that the PRC uses travel to China as
a means to assess closely and evaluate potential intelligence
sources and agents, as a way to establish and reinforce
cultural and ethnic bonds with China, and as a safehaven in
which to recruit, task, and debrief established intelligence
agents." \311\
This does not allege that Dr. Lee is likely to have engaged
in espionage because he is ethnic Chinese, only that he is
likely to have been targeted by the PRC intelligence services
on that basis. All the defense memorandum shows is that if
there is any ethnic profiling done, it is done by the PRC.
Since the PRC had no role in the decision to investigate or
prosecute Dr. Lee, any bias on their part would be
irrelevant.
It should be noted that Dr. Lee's request for discovery
related to selective prosecution contained several factual
errors, including an incorrect claim that no one else had
ever been prosecuted under the Atomic Energy Act, and an
incorrect claim that the Department of Justice had never
prosecuted anyone under the espionage statutes without
evidence that classified material had been transferred to a
third party. These claims were shown to be incorrect in the
government's response to Dr. Lee's discovery request.\312\
The Relationship Between the Lees and the Government
Shortly after Dr. Lee was fired from LANL, he retained Mark
Holscher as his counsel. On May 6, 1999, Mr Holscher released
the following statement, which clearly indicated that any
prosecution of Dr. Lee would have to deal with the
Lees' cooperation with the government:
"Dr. Wen Ho Lee has dedicated himself to the defense of
this country for the last 20 years. His work, much of which
is classified, has led directly to the increased Safety and
national security of all Americans, and he is responsible for
helping this country safely simulate nuclear tests.
"In 1986 and 1988, Dr. Lee went to Mainland China to
present papers at two technical conferences. Dr. Lee's
participation in these conferences was pre-approved and
encouraged by the Los Alamos Laboratory and the Department of
Energy. These same entities also cleared the texts of the
papers given at these conferences, which covered mathematics
and physics topics.
"The press has incorrectly reported that Dr. Lee made
"several" trips to Mainland China and also has failed to
report that his two trips were approved in advance by the Los
Alamos Laboratory and the Department of Energy. These two
approved trips were the only times Dr. Lee has ever traveled
to
[[Page S13816]]
Mainland China. These false press reports do a disservice
both to Dr. Lee and the Los Alamos Laboratory.
"The press reports also fail to include the fact that Dr.
Lee presented similar papers at conferences in several
countries throughout Western Europe and other parts of the
world. The false insinuations that Dr. Lee went to Mainland
China in the late 1980s with an improper purpose are unfair.
Not only did Dr. Lee go to Mainland China to present a
technical paper, his and his wife's attendance were with the
full knowledge and approval of the Federal Bureau of
Investigation.
"There have been inaccurate press reports regarding the
circumstances surrounding Dr. and Mrs. Lee's cooperation with
the government. Mrs. Lee agreed to the FBI's request that she
assists it as a volunteer without pay in the FBI's efforts to
monitor Chinese scientists. She agreed to help the FBI with
the full knowledge and approval of Dr. Lee and continued to
do so for a number of years.
"At the request of the FBI, Dr. Lee's wife attended the
1986 conference with him, where she voluntarily provided
background information on Chinese scientists. Dr. and Mrs.
Lee supported and agreed with the FBI's request that Mrs. Lee
assist it in obtaining background information on Chinese
scientists. It simply defies logic for critics to now allege
that Dr. Lee was engaged in improper activities in Mainland
China while he and his wife were there.
"At no time during or after the pre-approved 1986 or 1988
trips did Dr. Lee ever provide any classified information
whatsoever to any representative of Mainland China, nor has
he ever given any classified information to any unauthorized
persons. As was anticipated and approved by the U.S.
government, Dr. Lee and his wife socialized with Chinese
scientists. It was fully understood by the Department of
Energy and the Los Alamos Laboratory that the conferences
included social events with the participants." \313\
Had the case gone to trial, the government would have had
to confront the issue of its relationship with Dr. and Mrs.
Lee over a long period of time. As previously noted, Dr. Lee
assisted the FBI in a 1983-1984 investigation of a Lawrence
Livermore scientist. Notwithstanding the FBI's denial of any
assistance when the FISA request went forward in 1997, Dr.
Lee had, in fact, helped the FBI. Mrs. Lee's relationship
with the government would have been a substantially more
difficult matter to contend with.
In one discovery request, Dr. Lee's defense team asked for,
among other things, all information related to "Sylvia Lee's
Cooperation with the FBI and CIA." Citing grand jury
testimony of the FBI case agent on the Wen Ho Lee matter, the
defense memorandum said that:
"Sylvia Lee served as an FBI "Information Asset" between
1985 and 1991 in connection with visits to LANL by PRC
scientists. Her principal FBI contact was FBI Special Agent
David Bibb. On at least two occasions, Dr. Lee
attended meetings between Sylvia Lee and her FBI contact.
Sylvia Lee also met with [name redacted] and
representatives of the LANL internal security office to
provide information concerning PRC scientists." \315\
In its response, the government claimed that it had
produced all documents related to Lee's cooperation with the
FBI. Further, the government argued that while Dr. Lee's
purported assistance to the government might be relevant to a
jury in considering his criminal intent pursuant to the
Atomic Energy Act counts, Mrs. Lee's "affiliation with the
FBI and/or the CIA has no bearing on Lee's criminal intent."
\316\
In a July 13, 2000 order, Judge Parker said that he would
address this issue by reviewing, in camera: (1) documents
reflecting Sylvia Lee's cooperation with the Federal Bureau
of Investigation (FBI), Central Intelligence Agency (CIA),
and the Department of Energy (DOE), and (2) certain FBI
memoranda regarding the propriety of prosecuting the
Defendant.\317\ After reviewing this information, the judge
ruled that it contained information relevant to the defense
in several categories of exculpatory information:
1. [redacted];
2. The Defendant's cooperation with and provision of
information to Government agencies;
3. The Government agencies' assessments of cooperation by
and reliability of Sylvia Lee and the Defendant;
4. The Defendant's actions that may be perceived to be
inconsistent with an intent to secure an advantage for a
foreign nation; and
5. The Government agencies' conclusions about the
Defendant's motives.\318\
The relationship between the government and the Lees would
not likely have been a major part of any trial, but it
certainly had the potential to embarrass the government. The
laws on intelligence oversight set out strict procedures for
establishing a reporting relationship or an asset
relationship with an American citizen. Press reports suggest,
for example, that Mrs. Lee provided information to both the
FBI and the CIA, including repeated contacts in the mid-1980s
where a CIA agent was present for the meetings and paid for
the hotel room where the meetings took place.\319\ If the
government had failed to conform to any of the laws or
regulations in these matters, it could expect the defense to
bring them up at trial.
The Plea Agreement
After Judge Parker ruled that Dr. Lee had to be released
pending trial, the landscape shifted markedly. By September
13, the government reached the plea agreement which has been
previously described. When the judge accepted the plea
agreement, Dr. Lee was set free, subject only to the
requirement that he undergo three weeks of intense
debriefing, subject himself to a polygraph on questions
related to the case, and remain available to cooperate with
the FBI for a period of one year.
During the plea hearing, Judge Parker asked the government
to explain why the government considered the agreement to be
in the best interest of the nation. The government's lead
prosecutor, Mr. Stamboulidis, answered that the plea provided
the "best chance to find out with confidence precisely what
happened to the classified material and data" on the missing
tapes, which he said had been the government's "transcending
concern." \320\ He also explained that the cooperation
agreement would allow the government to verify Dr. Lee's
statements, and that Dr. Lee would be at great risk if he
failed to fully cooperate or to be truthful. And, finally,
Mr. Stamboulidis said, "this disposition avoids the public
dissemination of certain nuclear secrets which would have
necessarily occurred on the way towards proceeding towards
conviction in this case at trial." \321\
The judge was not entirely convinced, asking "why the
government argued so vehemently that Dr. Lee's release
earlier would have been an extreme danger to the government
at this time he, under the agreement, will be released
without any restrictions?" \322\
Referring to two sworn statements Dr. Lee had provided on
the morning of the plea hearing, Mr. Stamboulidis said that
Dr. Lee had finally, "for the first time, given us these
assurances that he never intended any harm to our nation by
his mishandling these materials in an unlawful way and that
he never allowed them to fall into harm's way and compromise
national security." \323\
Again, the judge was not persuaded, saying, "Throughout
this case, the government has repeatedly questioned the
veracity of Dr. Lee. You're saying now, simply because he has
given a statement under oath, the government no longer
believes he is a threat to national security?" \324\
The judge appeared to be not so much concerned that the
plea agreement was inappropriate, but that it could have been
reached much sooner. He noted that the government had
rejected a written offer from Dr. Lee's attorneys to have Dr.
Lee explain the missing tapes under polygraph exam, which was
essentially the same deal the government got in the end
(minus the felony count). Judge Parker also reminded counsel
for both sides that at the December detention hearing he had
asked the parties to pursue the offer made by Mr. Holscher,
but nothing came of it. Mr. Stamboulidis took issue with the
judge, saying that after the indictment, the offer had been
withdrawn, to which Judge Parker replied:
"Nothing came of it, and I was saddened by the fact that
nothing came of it. I did read the letters that were sent and
exchanged. I think I commented one time that I think both
sides prepared their letters primarily for use by the media
and not by me. Notwithstanding that, I thought my request
was not taken seriously into consideration." \325\
The net effect of Judge Parker's questions and the
government's apparent reversal on the matter of the threat
posed by Dr. Lee created the impression that the case had
collapsed. This led to some sharp questions to the Attorney
General and FBI Director Freeh at the September 2000 hearing.
Director Freeh explained that serious negotiations about a
plea agreement had begun during the summer at the direction
of Judge Parker, and reiterated that the over-arching reason
for the government's decision to make the agreement was to
find out what happened to the tapes.\326\
After noting that he and the Attorney General were in total
agreement with the decision on the plea deal, Director Freeh
outlined five other factors which figured into the
government's decision which are summarized below:
1. Judge Parker's strong suggestion that the case was
appropriate for mediation rather than trial;
2. Judge Parker's rulings in favor of the defendant in
initial proceedings under CIPA, which made it appear that Dr.
Lee might succeed in his attempt at graymail because the
judge's reasoning left little room to expect that the
government would prevail;
3. Judge Parker's August ruling (although stayed by the
Tenth Circuit) that created the "very real prospect that Dr.
Lee would soon be released in any event under conditions that
we pointed out to the judge were inadequate to prevent Dr.
Lee's communications with others."
4. The potential that the trial would become a "battle of
the experts" with regard to the classification level and
importance of the material on the tapes; and
5. The fact that "the FBI's lead case agent had had to
correct erroneous testimony from the initial detention
hearing," including the agent's misstatement about Dr. Lee
telling another scientist he wanted to use his computer to
download a resume (when Dr. Lee had actually said he wanted
to download some files), and the agent's overstatement of
evidence relating to whether Dr. Lee had sent letters to find
outside employment.\327\
Director Freeh's statements provide a compelling rationale
for the government's decision to accept the plea agreement.
What has not been adequately explained, however, is the
decision to keep Dr. Lee in such onerous conditions of
pretrial confinement. After
[[Page S13817]]
careful review, it becomes apparent that the government was
right to reach a plea agreement with Dr. Lee, whose actions
did constitute a serious threat to the national security, but
was wrong to hold him virtually incommunicado in pretrial
confinement for more than nine months.
Endnotes
1. "Plea and Disposition Agreement," United States vs.
Wen Ho Lee, Criminal No. 99-1417 JP, 13 September 2000: 2.
2. Although the request that was rejected by the Department
of Justice's Office of Intelligence Policy and Review did not
ask for computer surveillance, both the FBI and the DoJ
acknowledge that this would have become part of any approved
surveillance plan.
3. House of Representatives, "Report of the Select
Committee on U.S. National Security and Military/Commercial
Concerns with the People's Republic of China," 105th
Congress, 2d Session, Report 105-851, 25 May 1999. [Hereafter
Cox Committee Report]
4. Carla Anne Robbins, "China Got Secret Data on U.S.
Warhead," Wall Street Journal, January 7, 1999: 1.
5. Robbins, 1.
6. Robbins, 1.
7. James Risen and Jeff Gerth, "Breach at Los Alamos: A
Special Report," New York Times, March 5, 1999: A1.
8. Risen and Gerth, 1.
9. Risen and Gerth, 1. It should be noted that the New York
Times, generally, and Risen and Gerth specifically, came
under fierce attack for their original article, which was
said to have vastly overstated the case against Dr. Lee.
Shortly after Dr. Lee was freed in September 2000, the NYT
published a statement finding fault with its coverage of the
case, and promising a thorough review of the matter, which
was published in a two-article series in February 2001. See
Matthew Purdy, "The Making of a Suspect: The Case of Wen Ho
Lee," New York Times, February 4, 2001: 1, and Matthew Purdy
and James Sterngold, "The Prosecution Unravels: The Case of
Wen Ho Lee," New York Times, February 5, 2001: 1.
10. Risen and Gerth, 1.
11. Josef Hebert, "Government scientist involved in probe
is fired," Associated Press, March 8, 1999: 1.
12. James Risen, "U.S. Fires Scientist Suspected of Giving
China Bomb Data," New York Times, March 9, 1999: A1.
13. Risen, 1.
14. See Cox Committee Report, Volume I, 90-91.
15. See "Science at its Best, Security at its Worst: A
Report on Security Problems at the U.S. Department of
Energy," A Special Investigative Panel of the President's
Foreign Intelligence Advisory Board, June 1999.
16. Senate Governmental Affairs Committee Chairman Fred
Thompson (R-TN) and Ranking Minority Member Joseph Lieberman
(D-CT), statement, "Department of Energy, FBI, and
Department of Justice Handling of the Espionage Investigation
into the Compromise of Design Information on the W-88
Warhead," August 5, 1999: 1.
17. The initial plan was to commission a Task Force, which
I would chair. By October, Senator Hatch had prepared a
resolution transferring me from the Constitution Subcommittee
to the subcommittee on Administrative Oversight and the
Courts, and spelling out the areas of inquiry and special
procedures applicable to the investigation. In the end, the
subcommittee's investigation was conducted pursuant to two
subpoena resolutions which spelled out, in general terms, the
investigative mandate. The first subpoena resolution, adopted
by a vote of 18-0 on October 14, 1999, authorized the
charirman, in consultation with the ranking member, to issue
a subpoena requiring the Attorney General to produce certain
documents if they were not delivered voluntarily. The second
resolution, authorizing subpoenas in 38 categories for
individuals and documents, was approved (not unanimously) on
November 17, after a narrower proposal by Senator Leahy was
rejected.
18. The indictment alleged violations of the following
sections of the U.S. Code: 42 USC 2276, 42 USC, 2275, 18 USC
793(c), and 18 USC 793(e).
19. The term "Restricted Data" means all data concerning:
(1) the design, manufacture or utilization of atomic weapons:
(2) the production of special nuclear material; or (3) the
use of special nuclear material in the production of energy.
42 U.S.C. Sec. 2014(y).
20. United States Senate, "Joint Hearing on the Wen Ho Lee
Case," before the United States Senate Select Committee on
Intelligence and Committee on the Judiciary. 106th Congress,
2nd Session, September 26, 2000: 38. Testimony of FBI
Director Louis Freeh. [Hereafter "Joint Hearing"]
21. Stephen Younger, "Transcript of Proceedings, Detention
Hearing in the case of United States vs. Wen Ho Lee,"
December 13, 1999: 38. [Hereafter, Transcript of Proceedings,
Detention Hearing, December 13, 1999]
22. Transcript of Proceedings, Detention Hearing, December
13, 1999, 38.
23. Transcript of an in camera proceeding held on December
29, 1999, United States v. Wen Ho Lee, 59.
24. Matthew Purdy and James Sterngold, "The Prosecution
Unravels: The Case of Wen Ho Lee," New York Times, February
5, 2001, online edition.
25. Transcript of Proceedings before The Honorable James A.
Parker, U.S. v. Wen Ho Lee, September 13, 2000: 55 [Hereafter
Plea Hearing, September 13, 2000]
26. Plea Hearing, September 13, 2000: 58.
27. "President Clinton calls Lee case `troubling' ", CNN
website September 14, 2000.
28. Transcript of Proceedings, Motion Hearing, December 27,
1999: 49. [Hereafter Motion Hearing].
29. This information was drawn from Dr. Lee's web site at
http://wenholee.org/whois.htm.
30. Michael W. Lowe, "Application and Affidavit for Search
Warrant," April 9, 1999: 1-2.
31. United States of America, "Response to Defendant Wen
Ho Lee's Motion to Revoke Judge Svet's Order of Detention,"
December 23, 1999: 10. See also, United States Senate,
Committee on the Judiciary, Redacted Transcript of Closed
Hearing with Attorney General Janet Reno Regarding the FISA
Process in the Wen Ho Lee Case, June 8, 1999: 14-16.
32. USA, "Response," 10. See also, United States Senate,
Committee on the Judiciary. Redacted Transcript of Closed
Hearing with Attorney General Janet Reno Regarding the FISA
Process in the Wen Ho Lee Case, June 8, 1999: 15. [Hereafter,
Redacted Transcript]
33. Redacted Transcript, 15.
34. Redacted Transcript, 15.
35. "Response to Defendant Wen Ho Lee's Motion to Revoke
Judge Svet's Order of Detention," December 23, 1999: 13,
footnote 4.
36. Ian Hoffman, "Agent: Lee Admitted Lying," Albuquerque
Journal, January 18, 2000, online edition.
37. Redacted Transcript, 16.
38. The FBI could tell from the text of the intercepted
call that Dr. Lee had heard of the other scientist through a
mutual friend. What the FBI could not learn from that call,
and what Dr. Lee did not fully explain until sometime later,
was that he had learned about the other scientist when he
visited LLNL in October, 1982. His actions upon learning
about the other scientist's situation are of particular
importance.
39. See declassified transcript of closed portion of
detention hearing on December 29, 1999, during which FBI
Special Agent Robert Messemer characterizes the fact that Dr.
Lee called the Coordination Council of North America at the
same time he was calling the LLNL scientist as more troubling
then the fact that he lied to the FBI about having called the
LLNL scientist.
40. United States Senate, Joint Hearing before the Senate
Select Committee on Intelligence and the Senate Judiciary
Committee, "Joint Hearing on the Wen Ho Lee Case," 106th
Congress, 2nd Session, September 26, 2001: 72.
41. Draft #3 of the 1997 FISA request, 10.
42. Redacted Transcript, 16-17; Thompson and Lieberman
Statement, 6, 16.
43. James Risen and David Johnston. "U.S. Will Broaden
Investigation of China Nuclear Secrets Case," New York
Times, September 23, 1999, Online Edition.
44. FBI Director Freeh testified at a joint hearing of the
Senate Judiciary and Select Intelligence Committees on
September 26, 2000 that "the FBI's investigation into this
1994 matter was still ongoing when Dr. Lee emerged as a
potential subject in the 1996 administrative inquiry. . .
. Being aware of the potential interest in Dr. Lee, and
not wanting to take any steps that would interfere with
the inquiry or expose the FBI's interest in him, FBI
headquarters and FBI Albuquerque agreed to hold the
investigation of the 1994 investigation in abeyance." See
hearing transcript, 46-47. At another hearing the
following week, Mr. Trulock testified, however, that "The
DOE/FBI's team's first visit to the laboratory occurred in
1996. . . . DOE first learned of Dr. Wen Ho Lee when he
was brought to our attention by Robert Vrooman in January
of 1996. . . ." See Judiciary Committee hearing,
October 3, 2000: 43.
45. Thompson and Lieberman Statement, 6, footnote 14.
46. Redacted Transcript, 108-109.
47. Redacted Transcript, 109.
48. Redacted Transcript, 109.
49. Ian Hoffman, "Lawyer: Lee's Intent in Question,"
Albuquerque Journal, Jan-
uary 5, 2000, at http://wenholee.org/ABQJournal010500.htm.
50. For a discussion of this issue, see Motion Hearing,
147-157.
51. Motion Hearing, 152-153.
52. DOE Assistant Secretary for Congressional and
Intergovernmental Affairs John C. Angell, letter to Senator
Charles Grassley of December 20, 2000, responding to written
questions submitted by Senator Arlen Specter following a
September 27, 2000, hearing of the Senate Judiciary
Subcommittee on Administrative Oversight and the Courts: 21.
53. See John Angell's December 20, 2000 letter to Senator
Grassley, 20.
54. Even if DOE computer personnel and counterintelligence
were unaware that Dr. Lee was under investigation by the FBI,
and that would have been possible in 1994, it would not have
been inappropriate for DOE to share records of systems like
NADIR with the FBI. This has the benefit of allowing the FBI
to find out if any individuals are being flagged by security
and monitoring systems, without alerting computer personnel
to the investigation.
55. United States of America, "Response to Defendant Wen
Ho Lee's Motion to Revoke Judge Svet's Order of Detention,"
December 23, 1999.
56. The "walk-in" document is so named because an
individual provided this information to the United States
without being solicited for it, in other words, he "walked-
in" with the information. The documents he provided
contained classified nuclear weapons information.
[[Page S13818]]
57. Energy Secretary William Richardson, letter to FBI
Director Louis J. Freeh, of October 29, 1999L 1.
58. For example, a September 16, 1996 FBI 302 from an
interview of a scientist says that in September 1995 the KSAG
met and "there was no disagreement that `Restricted Data'
information had been acquired by the Chinese. The only
disagreement was over how valuable the information was."
59. DOE Administrative Inquiry, 38.
60. DOE Administrative Inquiry, 36.
61. DOE Administrative Inquiry, 38.
62. See FBI 302 dated September 2, 1999, from an interview
of the FBI agent who was detailed to assist with the AI, 4.
63. FBI teletype from FBIHQ to FBI-AQ, dated August 20,
1996: 3.
64. FBI 302 dated 9/16/96 (from an interview on 9/13/96) of
a LANL scientist, 2.
65. William Broad, "Spies Versus Sweat: The Debate Over
China's Nuclear Advance," New York Times, September 7, 1999,
Online Edition.
66. Vernon Loeb and Walter Pincus. "China Prefers the Sand
to the Moles," Washington Post, December 12, 1999, A02.
67. United States House of Representatives, Report of the
Select Committee on U.S. National Security and Military/
Commercial Concerns With the People's Republic of China, May
25, 1999: Volume 1, 83-84. [Hereinafter, Cox Report] A
"walk-in" is an individual who voluntarily offers to
conduct espionage.
68. President's Foreign Intelligence Advisory Board.
Science at its Best; Security at its Worst, June 1999, 30-31.
69. Thompson and Lieberman Statement, 6-7.
70. X-Division Open LAN Rules of Use, Executed by Dr. Wen
Ho Lee on April 19, 1995.
71. United States Senate, Senate Select Committee on
Intelligence, testimony of FBI Director Louis J. Freeh at a
"Closed Hearing," May 19, 1999: 34.
72. Thompson and Lieberman Statement, 9.
73. "Richardson Announces Results of Inquiries Related to
Espionage Investigation," Department of Energy News Release,
August 12, 1999.
74. Thompson and Lieberman Statement, 9.
75. This list has been extracted from the August 5, 1999,
Statement by Senate Governmental Affairs Committee Chairman
Fred Thompson and Ranking Minority Member Joseph Lieberman,
Department of Energy, FBI, and Department of Justice Handling
of Espionage Investigation into the Compromise of Design
Information on the W-88 Warhead, 14-17.
76. Hydrodynamics is a science that is relevant to the
development of nuclear weapons designs.
77. See Redacted Transcript, 35 and 88.
78. Bellows Report, 482.
79. Redacted Transcript, 118-119.
80. Redacted Transcript, 52. In a March 6, 2000 letter from
Assistant Attorney General Robert Rabin to Senator Hatch, the
Department of Justice takes issue with this statement, and
quotes Senator Kyl's testimony on the subject: "So it would
be your view that [the language quoted in the draft report]
is a summary that probably overstates the Justice
Department's requirements for the FBI? The Attorney General
responded: "That is correct." Transcript of June 8, 1999 at
49." [sic] For the actual exchange, see page 53 of the June
8, 1999 transcript.
81. Redacted Transcript, 52.
82. Redacted Transcript, 52.
83. Unclassified excerpt of Mr. Seikaly's testimony before
the Senate Select Committee on Intelligence, May 1999.
84. Bellows Report, 548.
85. Redacted Transcript, 49.
86. Redacted Transcript, 49.
87. Redacted Transcript, 24-25.
88. Redacted Transcript, 39.
89. Redacted Transcript, 39.
90. Bellows Report, 549.
91. Redacted Transcript, 40.
92. Redacted Transcript, 36.
93. Redacted Transcript, 56.
94. Redacted Transcript, 117.
95. Redacted Transcript, 117.
96. Bellows Report, 541.
97. Motion Hearing, 85. See also Pete Carey, "Los Alamos
Suspect May Have Been Doing His Job: Rerouting Files Common
at Lab," Florida Times-Union, June 20, 1999, G-8.
98. "With Intent to Injure the U.S." Washington Times,
editorial, December 4 1999, A16.
99. United States of America, "Response to Defendant Wen
Ho Lee's Motion to Revoke Judge Svet's Order of Detention,"
December 23, 1999, 3-4.
100. Hoffman.
101. Thompson and Lieberman Statement, 23-24.
102. Unclassified summary of the December 19, 1997, FBIHQ
teletype to Albuquerque, provided by FBI Office of Public and
Congressional Affairs, December 3, 1999.
103. FISA Request, November 10, 1998: 11.
104. FISA Request, November 10, 1998: 11.
105. FISA Request, November 10, 1998: 11.
106. FISA Request, November 10, 1998: 11.
107. FISA Request, November 10, 1998: 11.
108. FISA Request, November 10, 1998: 11-12.
109. FISA Request, November 10, 1998: 12.
110. FBI memorandum, [title redacted], from FBI National
Security Division to FBI-AQ, dated December 10, 1998: 1-2.
111. PFIAB, 34.
112. See the undated, unsigned memorandum provided to the
subcommittee by the FBI Office of Congressional Affairs in
December 1999.
113. See the undated, unsigned memorandum provided to the
subcommittee by the FBI Office of Congressional Affairs in
December 1999.
114. See the undated, unsigned memorandum provided to the
subcommittee by the FBI Office of Congressional Affairs in
December 1999.
115. FBI EC from Albuquerque to FBIHQ, dated December 8,
1998: 1.
116. See the letter of DOE Assistant Secretary for
Congressional and Intergovernmental Affairs John Angell to
Senator Arlen Specter of December 20, 2000, which encloses
answers prepared by Mr. Curran to follow-up questions from
the September 27, 2000 hearings of the Judiciary Subcommittee
on Administrative Oversight and the Courts.
117. It is troubling that the level of attention paid to
Dr. Lee's activities in 1998 was so low, and the coordination
between DOE and FBI was so poor, that counterintelligence
personnel did not even learn of his previous trip to Taiwan,
in March-April 1998, until after he was already out of the
United States.
118. See the letter of DOE Assistant Secretary for
Congressional and Intergovernmental Affairs John Angell to
Senator Arlen Specter of December 20, 2000, which encloses
answers prepared by Mr. Curran to follow-up questions from
the September 27, 2000 hearing of the Judiciary Subcommittee
on Administrative Oversight and the Courts.
119. See the letter of DOE Assistant Secretary for
Congressional and Intergovernmental Affairs John Angell to
Senator Arlen Specter of December 20, 2000, which encloses
answers prepared by Mr. Curran to follow-up questions from
the September 27, 2000 hearing of the Judiciary Subcommittee
on Administrative Oversight and the Courts.
120. See 1999 Report of DOE Inspector General regarding Dr.
Lee's clearance and access, 101.
121. At the December 14, 1999 meeting in which Director
Freeh asked the subcommittee to suspend its oversight of the
Wen Ho Lee case, Mr. Curran was asked about an FBI memo from
February 1999 which claimed that Mr. Curran had instructed
his personnel not to share the charts and videotape of the
December 1998 polygraph with the FBI. After seeing an early
draft of the interim report. Mr. Curran wrote a letter on
January 31, 2000, denying the information in the FBI report.
He also sent a copy of a letter he had received from FBI
Assistant Director Neil Gallagher, which described the memo
in question as a "blind memo", not intended to capture
actual witness statements.
122. Ed Curran, Director, DOE Office of
Counterintelligence, letter to Senator Arlen Specter, January
31, 2000: 2-3.
123. See the letter of 20 December 2000 from John C.
Angell, Assistant Secretary of Congressional and
Intergovernmental Affairs, Department of Energy to Senator
Charles Grassley, which enclosed responses from Mr. Curran to
22 questions from Senator Specter.
Wackenhut is a private company that has a contract with DOE
to perform security related polygraphs.
125. Matthew Purdy, "The Making of a Suspect: The Case of
Wen Ho Lee," New York Times, February 4, 2001, online
edition.
126. "Department of Energy Chronology," May 6, 1999: 7-8.
127. United States Senate, Subcommittee on Administrative
Oversight and the Courts of the Committee on the Judiciary,
"Continuation of Oversight of the Wen Ho Lee Case," 106th
Congress, 2nd Session, 27 September 2000: 62. [Hereafter, 27
September 2000 hearing]
128. 27 September 2000 hearing: 62-63.
129. FBI Assistant Director for National Security Neil
Gallagher, Memorandum of 18 December 1998: 1.
130. 27 September 2000 hearing: 32.
131. United States Senate, Senate Select Committee on
Intelligence, "Closed Hearing," 106th Congress, 2nd
Session, May 19, 1999: 7.
132. FBI Supervisory Special Agent C.H. Middleton to Ms.
Horan, dated January 21, 1999: 2.
133. DOE IG Gregory H. Friedman, letter to Senator Arlen
Specter of October 2, 2000, enclosing a declassified segment
of a 1999 Report by the IG. This information comes from page
113 of the full report.
134. DOE IG Gregory H. Friedman, letter to Senator Arlen
Specter of October 2, 2000, enclosing a declassified segment
of a 1999 Report by the IG. This information comes from page
115 of the full report.
135. DOE IG Gregory H. Friedman, letter to Senator Arlen
Specter of October 2, 2000, enclosing a declassified segment
of a 1999 Report by the IG. This information comes from page
116 of the full report.
136. Deposition of Supervisory Special Agent Craig Schmidt
by Mr. Eric George of the Senate Committee on the Judiciary
staff, 29 July 1999: 91.
137. U.S. Department of Energy Psychophysiological
Detection of Deception (PDD) Examination Report, File #99-2A-
003, December 23, 1998, statement of Wolfgang Vinskey.
138. U.S. Department of Energy Psychophysiological
Detection of Deception (PDD) Examination Report, File #99-2A-
003, December 23, 1998, statement of John P. Mata.
139. John P. Mata, memorandum "Psychophysiological
Detection of Deception (PDD) Examination of Wen Ho Lee," for
Edward Curran, December 28, 1998: 3-4.
140. This memo was undoubtedly after Mr. Mata received a
call from Ed Curran who was
[[Page S13819]]
told on December 14, 1999 of an FBI document which said that
the FBI had not initially been able to get access to the
charts, per instructions from Ed Curran.
141. John P. Mata, Memorandum for the Record,
"Recollection of Events Regarding DOE Polygraph Examination
of Wen Ho Lee, December 23, 1998," December 21, 1999: 2.
142. John P. Mata, Memorandum for the Record,
"Recollection of Events Regarding DOE Polygraph Examination
of Wen Ho Lee, December 23, 1998," December 21, 1999: 2.
143. John P. Mata, Memorandum for the Record,
"Recollection of Events Regarding DOE Polygraph Examination
of Wen Ho Lee, December 23, 1998," December 21, 1999: 2.
144. OCI Polygraph Program Manager David M. Renzleman,
Polygraph Program Record of Quality Assurance, undated, 1.
145. OCI Polygraph Program Manager David M. Renzleman,
Polygraph Program Record of Quality Assurance, undated, 2.
146. See FBI Headquarters internal memo dated February 2,
1999 and or February 6, 1999 on the same subject.
147. United States Senate, Committee on Governmental
Affairs, Testimony from June 9, 1999 closed hearing: 145.
148. Undated FBI response to questions for the record
submitted by Senator Arlen Specter following the Senate
Judiciary Subcommittee on Department of Justice Oversight
hearing, "Continuation of Oversight on the Wen Ho Lee
Case," on September 27, 2000: 1.
149. FBI ASAC William Lueckenhoff, memorandum to DAD Sheila
Horan, February 26, 1999: 1.
150. DOE IG Gregory H. Friedman, letter to Senator Arlen
Specter of October 2, 2000, enclosing a declassified segment
of a 1999 Report by the IG. This information comes from page
116 of the full report.
151. FBI Assistant Director Neil J. Gallagher, letter to
Mr. Edward J. Curran of January 4, 2000: 1.
152. Ian Hoffman, "Lee Denied Bail; Court Cites Risk,"
Albuquerque Journal, December 30, 1999: A1.
153. Sharyl Attkisson, "Wen Ho Lee's Problematic
Polygraph," February 4, 2000, accessed at http://
www.cbsnews.com/now/story/0,1597,157220-412,00.shtml.
[Hereafter, "Wen Ho Lee's Problematic Polygraph"]
154. "Wen Ho Lee's Problematic Polygraph."
155. "Wen Ho Lee's Problematic Polygraph."
156. "Wen Ho Lee's Problematic Polygraph."
157. Dr. Michael Capps, Deputy Director of Developmental
Programs, Defense Security Service, letter to Senator Arlen
Specter of June 25, 2001: 1. [Hereafter, Capps letter]
158. Capps letter, 2-3.
159. Capps letter, 3.
160. Capps letter, 4.
161. Richard W. Keifer, letter to Senator Arlen Specter of
June 26, 2001, "Your letter of May 22, 2001 regarding the
Dr. Wen Ho Lee polygraph Examination on December 23, 1998,"
1. [Hereafter, Keifer letter.]
162. Keifer letter, 3.
163. Keifer letter, 3.
164. Keifer letter, 5.
165. Assistant Attorney General Daniel J. Bryant, letter to
Senator Patrick Leahy and Senator Arlen Specter of June 28,
2001.
166. FBI "Chronology of Significant Events Between 12/23/
98 and 2/10/99," prepared for use by FBI Director Louis
Freeh at a joint hearing of the Senate Select Committee on
Intelligence and the Senate Judiciary Committee on September
26, 2000: 1. [Hereafter, FBI Unclassified Chronology.]
167. DOE IG Gregory H. Friedman, letter to Senator Arlen
Specter of October 2, 2000, enclosing a declassified segment
of a 1999 Report by the IG. This information comes from page
116 of the full report.
168. Assistant Secretary of Energy for Congressional and
Intergovernmental Affairs John Angell, letter to Senator
Grassley responding to questions from Senator Arlen Specter
after a hearing before the Judiciary Subcommittee on
Administrative Oversight and the Courts on September 27,
2000: 17.
169. Undated FBI response to questions for the record from
Senator Arlen Specter following a hearing of the Senate
Judiciary Subcommittee on Department of Justice Oversight,
"Continuation of Oversight on the Wen Ho Lee Case," of
September 27, 2000: 1.
170. FBI Chronology of Wen Ho Lee Investigation 1999-2000:
12.
171. Transcript of Proceedings, 118.
172. For a detailed discussion of Dr. Lee's deletions and
his call to the computer help line, see "Transcript of
Proceedings, Motion Hearing, December 27, 1999," United
States of America vs. Wen Ho Lee, pages 132-138.
173. Transcript of Proceedings, 146.
174. Thompson and Lieberman Statement, 26.
175. For a detailed discussion of the computer code issue,
see the transcript of Attorney General Reno's testimony
before the Senate Judiciary Committee on June 8, 1999, 108-
109 {as numbered in the lower-right-hand corner .
176. Matthew Purdy and James Sterngold, "The Prosecution
Unravels: The Case of Wen Ho Lee," New York Times, February
5, 2001, online edition.
177. Matthew Purdy, "The Making of a Suspect: The Case of
Wen Ho Lee," New York Times, February 4, 2001, online
edition. Unless otherwise noted, the description of the
government's actions in the first week of March 1999 is taken
from this article.
178. Matthew Purdy, "The Making of a Suspect: The Case of
Wen Ho Lee," New York Times, February 4, 2001, online
edition.
179. In his written statement to the Joint Hearing of the
Senate Select Committee on Intelligence and the Judiciary
Committee on September 26, 2000, Director Freeh said, "One
approach that was taken during that interview was not
consistent with the conduct expected of agents during an
interview. Specifically, Dr. Lee was reminded of the fate of
Julius and Ethel Rosenberg, who were executed for espionage.
Confrontational interviews often call for tough statements by
investigators, but that implication was inappropriate. Again,
Dr. Lee ended the interview without providing any useful
information and without giving any indication of the actions
to which he has now pled guilty." When asked by Senator
Specter at the September 26 hearing about the Rosenberg
reference and the harsh conditions of confinement and the
inference that these measures might be intended to coerce a
confession, Director Freeh responded, "I would disagree very
strongly with the suggestion or the notion that anything was
done with respect to confinement, or anything else in this
case, to improperly or unfairly treat Dr. Lee." See hearing
transcript, 81.
180. For a discussion of the issue of how Dr. Lee's name
was leaked to the press, see pages 53, 54, 64 and 65 of the
transcript of the Senate Judiciary Subcommittee on Department
of Justice Oversight hearing on October 3, 2000, during which
Mr. Trulock says that NYT reporter James Risen told him that
Energy Secretary Richardson leaked Dr. Lee's name to the
media. Secretary Richardson vehemently denied being the
source of the leak, both in a letter to Senator Hatch on
October 3, 2000, in which he said he had received a letter
from Senator Specter requesting a hearing on the basis of Mr.
Trulock's statement. In reply, Secretary Richardson said,
"Mr. Risen has denied that he made this statement to Mr.
Trulock, and I categorically deny that I shared Mr. Lee's
name with Mr. Risen." Secretary Richardson made the same
denials to Senator Specter in a meeting on October 5, 2000,
but a review of the articles in question shows that Secretary
Richardson gave an on the record interview in which he named
Dr. Lee and made several comments about his lack of
cooperation. Although Dr. Lee's name had first appeared in
the press in an AP article the day before, Secretary
Richardson confirmed on the record that Dr. Lee was the
individual who had been fired for security violations.
181. See, for example, the September 28, 1999 press release
from the FBI National Press Office which states that Special
Agent in Charge Steve Dillard "has been appointed as
Inspector in Charge of a task force composed of FBI Special
Agents and analysts that will investigate the possible theft
or compromise of classified information from United States
nuclear laboratories. . . ." The full text of the press
release is available at http://www.fbi.gov/pressrm/pressrel/
dillard.htm.
182. Attorney General Janet Reno and FBI Director Louis
Freeh, letter to Senator Orrin Hatch, October 1, 1999: 1.
183. FBI Albuquerque EC to FBI HQ of January 22, 1999: 2.
184. FBI Albuquerque EC to FBI HQ of January 22, 1999: 3-4.
185. He made similar representations in other briefings
provided to Senate staff.
186. Gallagher, letter of November 10, 1.
187. Gallagher, letter of November 10, 2.
188. Robert H. Hast, Managing Director of the General
Accounting Office's Office of Special Investigations, letter
to Senators Arlen Specter, Charles Grassley and Robert
Torricelli, "Subject: FBI Official's Congressional Testimony
Was Inaccurate Because He Failed to Present Certain
Information That Had Been Made Available to Him About the Wen
Ho Lee Investigation," of June 28, 2001: 1.
189. FBI Albuquerque, "Changed: FBI-DOE National
Laboratory Assessment. . . ." July 9, 1999: 6.
190. FBI Albuquerque, "Changed: FBI-DOE National
Laboratory Assessment. . . ." August 26, 1999: 6-7.
191. See "DCI Statement on Damage Assessment," at http://
www.cia.gov/cia/public__affairs/ press__release/
ps042199.html, and the "Key Findings" at http://
www.cia.gov/cia/public__affairs/ press__release/0421kf.html.
192. Cox Committee Report, Vol 1, 68.
193. Cox Committee Report, Vol 1, 83-84.
194. According to a chronology prepared by the Justice
Department, the discovery occurred on March 23, 1999. That it
took more than two weeks after Dr. Lee had been dismissed
from LANL (and nearly three weeks after he gave permission to
search his office) to find this document is very troubling.
195. United States Senate, Joint Hearing of the Senate
Select Committee on Intelligence and the Senate Judiciary
Committee, "Joint Hearing on the Wen Ho Lee Case," 106th
Congress, 2nd Session, September 26, 2000: 52.
196. FBI Director Louis J. Freeh, "STATEMENT BY FBI
DIRECTOR LOUIS J. FREEH," September 13, 2000: 2.
197. Transcript of Proceedings, United States v. Wen Ho
Lee, September 13, 2000: 34-37.
198. Transcript of Proceedings, United States v. Wen Ho
Lee, September 13, 2000: 48-50.
199. Although the subcommittee has not had access to the
files from the criminal case against Dr. Lee, it should be
noted that none of the information otherwise available
suggests that the government applied for a Title III wiretap
between March and December 1999. If the government was
concerned that
[[Page S13820]]
he might somehow communicate the existence of the tapes to a
third party, it should have requested a wiretap. It may be
that the wiretap was requested and received, but the absence
of any such request would strongly undermine the government's
claim that restricting his communications was necessary to
protect the tapes.
200. Unless otherwise noted, all the information in this
section is drawn from a chronology prepared by the Department
of Justice and forwarded to the Senate Judiciary Committee on
June 22, 2001.
201. Mark Holscher, letter to Robert Gorence and John
Hudenko, of March 10, 1999: 1. [DOJ-WHL-00001-00002]
202. FBI Chronology of Wen Ho Lee investigation from 1999-
2000: 2.
203. Mark Holscher, letter to John Kelly, of March 19,
1999: 1-2. [DOJ-WHL-00005-00006]
204. The Chronology of Wen Ho Lee investigation from 1999-
2000 says this is discovered on March 21, 1999. See
Chronology, 2.
205. Mark Holscher, letter to John Kelly, of March 23,
1999: 1-2. [DOJ-WHL-00009-00010]
206. Mark Holscher, letter to FBI Director Louis J. Freeh,
of March 23, 1999: 1-3. [DOJ-WHL-00011-00013]
207. Mark Holscher, letter to Robert Gorence, of March 29,
1999: 1. [DOJ-WHL-00014]
208. For a discussion of the debate between FBI and DOJ
after Lee's computer was searched, see Thompson and Lieberman
Statement, 27-29.
209. Thompson and Lieberman Statement, 28-29.
210. Thompson and Lieberman Statement, 28.
211. In view of DOJ's assertion that it never had any sort
of wiretap on Dr. Lee, this likely refers to FISA material
from the investigation of the other scientist to whom Dr. Lee
spoke by telephone in December 1982.
212. John Kelly and Robert Gorence, letter to Mark Holscher
of April 16, 1999: 1-2. [DOJ-WHL-00015-00016]
213. FBI Chronology of Wen Ho Lee investigation from 1999-
2000: 5.
214. FBI Chronology of Wen Ho Lee Investigation from 1999-
2000: 6.
215. John Kelly and Paula Burnett, letter to Brian Sun, of
May 5, 1999: 1-2. [DOJ-WHL-0017-0018]
216. Brian Sun, letter to John Kelly and Paula Burnett, of
May 6, 1999: 1-2. [DOJ-WHL-00021-00022]
217. FBI Chronology of Wen Ho Lee investigation from 1999-
2000: 7.
218. John Kelly, letter to Mark Holscher, of June 15, 1999:
1-2. [DOJ-WHL-00030-00031]
219. FBI Chronology of Wen Ho Lee investigation from 1999-
2000: 8-9.
220. No subpoenas were issued pursuant to these resolutions
because the investigation into the Wen Ho Lee case was
suspended in December at the request of Director Freeh and
the Department of Justice. The resolutions were intended as
temporary measures to ensure that the subcommittee could
continue its work during the congressional recess. When the
Senate returned the following January, several other
individual subpoenas on matters under investigation by the
subcommittee were, in fact, debated and voted on. No
subpoena requested by the subcommittee was defeated in the
full committee.
221. Walter Pincus and David A. Vise, "Blunders Undermined
Lee Case," Washington Post, September 24, 2000: Al.
222. Senator Arlen Specter, letter to FBI Director Louis J.
Freeh of December 7, 1999. 1-2.
223. FBI Director Louis J. Freeh, letter to Senator Arlen
Specter of December 10, 1999: 1.
224. Director Freeh letter of December 10, 1999: 1-2.
225. United States Senate, Joint Hearing before the Senate
Select Committee on Intelligence and the Senate Judiciary
Committee, "Joint Hearing on the Wen Ho Lee Case," 106th
Congress, 2nd Session, September 26, 2000: 63.
226. There are a number of other issues that raise
questions as to whether the government fully pursued all the
information it had available during the course of its
investigation. These questions were identified in a June 27,
2001 letter from senators Patrick Leahy and Arlen Specter to
Attorney General Ashcroft. With the exception of confirming
that Dr. Lee has told investigators that the tapes were still
in his office as of December 23, 1998, however, the
Department continues to refuse to answer these questions on
the ground that the case is still open.
227. United States Senate, Joint Hearing before the Senate
Select Committee on Intelligence and the Senate Judiciary
Committee, "Joint Hearing on the Wen Ho Lee Case," 106th
Congress, 2nd Session, September 26, 2000: 83.
228. In response to a question from staff on July 5, 2001,
Sheryl Walter of DOJ's Office of Legislative Affairs
confirmed that Dr. Lee had never been the target of
electronic surveillance.
229. Transcript of a closed Detention hearing on December
29, 1999, United States v. Wen Ho Lee, 59.
230. FBI Chronology of Investigation from 1999-2000: 6.
231. Judge James A. Parker, "MEMORANDUM OPINION AND
ORDER," United States v. Wen Ho Lee, December 30, 1999: 7.
232. Judge James A. Parker, "MEMORANDUM OPINION AND
ORDER," United States v. Wen Ho Lee, December 30, 1999: 7.
233. Robert J. Gorence, "RESPONSE TO DEFENDANT WEN HO
LEE'S MOTION TO REVOKE JUDGE SVET'S ORDER OF DETENTION,"
United States v. Wen Ho Lee, December 23, 1999: 18.
234. Robert J. Gorence, "RESPONSE TO DEFENDANT WEN HO
LEE'S MOTION TO REVOKE JUDGE SVET'S ORDER OF DETENTION,"
United States v. Wen Ho Lee, December 23, 1999: 7-8.
235. Robert J. Gorence, "RESPONSE TO DEFENDANT WEN HO
LEE'S MOTION TO REVOKE JUDGE SVET'S ORDER OF DETENTION,"
United States v. Wen Ho Lee, December 23, 1999: 14.
236. Judge James A. Parker, "MEMORANDUM OPINION AND
ORDER," United States v. Wen Ho Lee, December 30, 1999: 1.
237. Judge James A. Parker, "MEMORANDUM OPINION AND
ORDER," United States v. Wen Ho Lee, December 30, 1999: 10.
238. Judge James A. Parker, "MEMORANDUM OPINION AND
ORDER," United States v. Wen Ho Lee, December 30, 1999: 10-
11.
239. Judge James A. Parker, "MEMORANDUM OPINION AND
ORDER," United States v. Wen Ho Lee, December 30, 1999: 12-
13.
240. Judge James A. Parker, "MEMORANDUM OPINION AND
ORDER," United States v. Wen Ho Lee, December 30, 1999: 13.
241. Judge James A. Parker, "MEMORANDUM OPINION AND
ORDER," United States v. Wen Ho Lee, December 30, 1999: 14.
242. Judge James A. Parker, "MEMORANDUM OPINION AND
ORDER," United States v. Wen Ho Lee, December 30, 1999: 14.
243. Judge James A. Parker, "MEMORANDUM OPINION AND
ORDER," United States v. Wen Ho Lee, December 30, 1999: 16.
244. Judge James A. Parker, "MEMORANDUM OPINION AND
ORDER," United States v. Wen Ho Lee, December 30, 1999: 19.
245. Taken from the "Overview" section of the website,
http://wenholee.org/
246. Memorandum from Lawrence Barreras, Senior Warden to
Rick Ploof, Supervisor Deputy United States Marshal For
Prisoner Operations dated December 14, 1999 re: High Security
Supervision.
247. Memorandum from Lawrence Barreras, Senior Warden to
Rick Ploof dated January 4, 2000 re: Segregation Inmates.
248. Mark Holscher, letter to John Kelly and Robert
Gorence, "Re: Dr. Wen Ho Les," of December 21, 1999: 1.
249. Energy Secretary William Richardson, letter to
Attorney General Janet Reno, "Re: United States v. Wen Ho
Lee," of December 27, 1999: 1.
250. United States Marshal John S. Sanchez, letter to
Warden Lawrence Barreras, "Re: Federal Inmate Wen Ho Lee,"
of January 6, 2000: 1-2.
251. Mr. John D. Cline, letter to Mr. Robert Gorence, "Re:
United States v. Wen Ho Lee," of January 6, 2000: 1.
252. Principal Associate Deputy Attorney General Gary G.
Grindler, "MEMORANDUM FOR THE ATTORNEY GENERAL and THE
DEPUTY ATTORNEY GENERAL," January 12, 2000: 1.
253. See Attorney General Janet Reno, "MEMORANDUM FOR JOHN
W. MARSHALL, SUBJECT: Origination of Special Administrative
Measures of Confinement Conditions on Federal Government Pre-
Trial Detainee Wen Ho Lee," of January 13, 2000: 1.
254. Energy Secretary Bill Richardson, letter to Attorney
General Janet Reno of May 4, 2000: 1.
255. FBI Special Agent in Charge David V. Kitchen, letter
to Norman C. Bay of May 2, 2000: 1.
256. See the letter of Warden Barreras to Mr. Stamboulidis
of July 18, 2000, in which he notes that per their telephone
conversation and the letter of July 17 from Mr. Stamboulidis,
the Warden has removed Dr. Lee's restraints during exercise,
but has declined to allow weekend recreation time as it will
involve additional staff costs.
257. See, for example, the letter of Mr. John Cline to Mr.
Stamboulidis of July 26, 2000, in which Mr. John Kline says
that in the two weeks since Mr. Stamboulidis claimed in open
court that Dr. Lee would be permitted to exercise without
restraints, Dr. Lee had not, in fact been allowed to do so.
258. Warden Lawrence Barreras, letter to Mel George
Stamboulidis of August 1, 2000.
259. United States Attorney Norman C. Bay, letter to
Attorney General Janet Reno of September 7, 2000: 2.
260. United States Senate, Joint Hearing of the Senate
Select Committee on Intelligence and the Senate Judiciary
Committee, "Joint Hearing on the Wen Ho Lee Case," 106th
Congress, 2nd Session, September 26, 2000: 75.
261. United States Senate, Judiciary Subcommittee on
Department of Justice Oversight, "Continuation of Oversight
on the Wen Ho Lee Case," 106th Congress, 2nd Session,
October 3, 2000: 73.
See United States Senate, Joint Hearing of the Senate
Select Committee on Intelligence and the Senate Judiciary
Committee, "Joint Hearing of the Wen H. Lee Case," 106th
Congress, 2nd Session, September 26, 2000: 79-80, where
Attorney General Reno read Mr. Cisneros' letter into the
record.
263. Assistant Attorney General Robert Raben, letter to
Senators Leahy, Graham, Hatch And Shelby, of January 20,
2001: 1.
264. Assistant Attorney General Robert Ruben, letter to
Senators Leahy, Graham, Hatch and Shelby, of January 20,
2001: 2.
265. Assistant Attorney General Robert Ruben, letter to
Senators Leahy, Graham, Hatch and Shelby, of January 20,
2001: 2.
66. Plea Hearing transcript, September 13, 2000: 55.
[[Page S13821]]
267. Transcript of Proceedings, United States v. Wen Ho
Lee, August 16, 2000: 13.
268. Transcript of Proceedings, United States v. Wen Ho
Lee, August 17, 2000: 12.
269. Transcript of Proceedings, United States v. Wen Ho
Lee, August 17, 2000: 92.
270. Judge James A. Parker, "MEMORANDUM OPINION," United
States v. Wen Ho Lee, August 31, 2000: 3.
271. Judge James A. Parker, "MEMORANDUM OPINION," United
States v. Wen Ho Lee, August 31, 2000: 10.
272. Judge James A. Parker, "MEMORANDUM OPINION," United
States v. Wen Ho Lee, August 31, 2000: 14-15.
273. "STATEMENT OF THE FACTS," from the Government's
public filing in response to the defense appeal of Judge
Parker's initial denial of bail, undated, 3-6.
274. Transcript of Proceedings, United States v. Wen Ho
Lee, August 16, 2000: 142.
275. Transcript of Proceedings, United States v. Wen Ho
Lee, August 16, 2000: 150.
276. United States Senate, Hearing before the Senate
Judiciary Subcommittee on Department of Justice Oversight,
"Continuation of Oversight on the Wen Ho Lee Case," 106th
Congress, 2nd Session, October 3, 2000: 17.
277. United States Senate, Hearing before the Senate
Judiciary Subcommittee on Department of Justice Oversight,
"Continuation of Oversight on the Wen Ho Lee Case," 106th
Congress, 2nd Session, October 3, 2000: 24.
278. United States Senate, Hearing before the Senate
Judiciary Subcommittee on Department of Justice Oversight,
"Continuation of Oversight on the Wen Ho Lee Case," 106th
Congress, 2nd Session, October 3, 2000: 26.
279. Matthew Purdy and James Sterngold, "The Prosecution
Unravels: The Case of Wen Ho Lee," New York Times, February
4, 2001: online edition.
280. Matthew Purdy and James Sterngold, "The Prosecution
Unravels: The Case of Wen Ho Lee," New York Times, February
4, 2001: online edition.
281. United States Senate, Hearing before the Judiciary
Subcommittee on Department of Justice Oversight,
"Continuation of Oversight on the Wen Ho Lee Case," 106th
Congress, 2nd Session, September 27, 2000: 57.
282. United States Senate, Hearing before the Judiciary
Subcommittee on Department of Justice Oversight,
"Continuation of Oversight on the Wen Ho Lee Case," 106th
Congress, 2nd Session, September 27, 2000: 58.
283. Matthew Purdy and James Sterngold, "The Prosecution
Unravels: The Case of Wen Ho Lee," New York Times, February
5, 2001, online edition. See also, MEMORANDUM CONCERNING THE
USE, RELEVANCE, AND ADMISSIBILITY OF THE INFORMATION LISTED
IN DR. WEN HO LEE'S FIRST NOTICE UNDER SECTION 5 OF THE
CLASSIFIED INFORMATION PROCEDURES ACT.
284 Judge James A. Parker, "COURT DETERMINATIONS AND ORDER
ON FIRST NOTICE OF DR. WEN HO LEE UNDER SECTION 5 OF THE
CLASSIFIED INFORMATION PROCEDURES ACT," August 1, 2000: 3.
285. Judge James A. Parker, "COURT DETERMINATIONS AND
ORDER ON FIRST NOTICE OF DR. WEN HO LEE UNDER SECTION 5 OF
THE CLASSIFIED INFORMATION PROCEDURES ACT," August 1, 2000:
4.
286. Judge James A. Parker, "COURT DETERMINATIONS AND
ORDER ON FIRST NOTICE OF DR. WEN HO LEE UNDER SECTION 5 OF
THE CLASSIFIED INFORMATION PROCEDURES ACT," AUGUST 1, 2000:
5.
287. MOTION FOR DISCOVERY OF MATERIALS RELATED TO SELECTIVE
PROSECUTION, United States v. Wen Ho Lee, June 25, 2000: 1.
288. MEMORANDUM IN SUPPORT OF MOTION FOR DISCOVERY OF
MATERIALS RELATED TO SELECTIVE PROSECUTION, United States v.
Wen Ho Lee, June 25, 2000: 1. [Hereafter Selective
Prosecution Memorandum]
289. Selective Prosecution Memorandum, 2.
290. Selective Prosecution Memorandum, 2-3.
291. Plea Hearing, September 13, 2000: 50.
292. See DOE press release, "Richardson Releases Task
Force Against Racial Profiling Report and Announces 8
Immediate Actions," January 19, 2001. Richardson said that
the Task Force had made several general observations,
including "that some employees believed that
counterintelligence efforts were targeting employees of
Chinese ethnicity," but offered no direct proof of any such
profiling.
293. Department of Energy Inspector General Gregory
Friedman, Memorandum for the Secretary, "Special Review of
Profiling Concerns at the Department of Energy," April 3,
2001: 1.
294. Selective Prosecution Memorandum, 5.
295. Selective Prosecution Memorandum, 5.
296. For a discussion of the timing and reasons for Mr.
Trulock's departure from DOE, see James Risen, "Official Who
Led Inquiry Into China's Reputed Theft of Nuclear Secrets
Quits," New York Times, August 24, 1999, online edition.
297. Selective Prosecution Memorandum, 6.
298. Matthew Purdy and James Sterngold, "The Prosecution
Unravels: The Case of Wen Ho Lee," New York Times, February
5, 2001, online edition.
299. When questioned in an October 3, 2000 hearing about an
August 1995 FBI document quoting Mr. Vrooman as saying that
"a `smoking gun' had been found," Mr. Vrooman testified
that he did not know what the memo referred to. After the
hearing, Mr. Vrooman refreshed his recollection and wrote to
me that the "smoking gun" quote referred to the analytical
team headed by Mr. Michael Henderson, otherwise known as the
Kindred Spirit Analytical Group.
300. United States Senate, Hearing before the Senate
Judiciary Subcommittee on Department of Justice Oversight,
"Continuation of Oversight on the Wen Ho Lee Case," October
3, 2000: 65.
301. United States Senate, Hearing before the Senate
Judiciary Subcommittee on Department of Justice Oversight,
"Continuation of Oversight on the Wen Ho Lee Case," October
3, 2000: 66.
302. Mr. Vrooman furnished this retirement date in his
written testimony to the subcommittee on October 3, 2000. He
obviously stayed in touch with the lab and may have consulted
on certain security issues, but his contact with the case
would have been less than during his tenure at the lab.
303. See Department of Energy Press Release, "Richardson
Announces Results of Inquiries Related to Espionage
Investigation," August 12, 1999. The release says that a DOE
counterintelligence official had been told in October 1997
that an espionage suspect [Dr. Lee] should be moved but
decided to leave the suspect in place without consulting with
senior management. The DOE press release does not name Mr.
Vrooman or the others who were disciplined, but an August 13,
1999 story by Vernon Loeb in the Washington Post identifies
the three officials as Sig Hecker, Robert Vrooman, and Terry
Craig. See Vernon Loeb, "Richardson Recommends Discipline
for 3 in Los Alamos Case," Washington Post, August 13, 1999:
A9.
304. United States Senate, Subcommittee on Administrative
Oversight and the Courts of the Committee on the Judiciary,
"Continuation of Oversight on the Wen Ho Lee Case," October
3, 2000: 52-53.
305. FBI memorandum from Albuquerque Division to FBI HQ,
"Request for: (1) FISA Court Order authorizing the
interception of signals emanating from the residence of
captioned subject; (2) Application for ELSUR (FISA and MISUR
coverage) at subject's residence and business location,"
November 10, 1998: 4. [Hereafter, FISA Request, November 10,
1998]
306. FISA Request, November 10, 1998: 4.
307. FISA Request, November 10, 1998: 5.
308. FISA Request, November 10, 1998: 5.
309. FISA Request, November 10, 1998: 5.
310. Selective Prosecution Memorandum, 7.
311. FBI Special Agent Michael W. Lowe, "APPLICATION AND
AFFADIVIT FOR SEARCH WARRANT," April 9, 1999: 1.
312. See RESPONSE TO DEFENDANT WEN HO LEE'S MOTION FOR
DISCOVERY OF MATERIALS RELATED TO SELECTIVE PROSECUTION,
United States v. Wen Ho Lee, July 21, 2000: 11-12.
313. "A Reply to Misleading Press Reports Concerning Dr.
Wen Ho Lee," May 6, 2000.
314. This is item D. of the "Memorandum in Support of
Motion to Compel Discovery on Issues other Than Selective
Prosecution," filed May 10, 2000. Note that the declassified
version of this document redacts must of Item D, including
the header, but the Government's response spells out the
materials in question.
315. "Memorandum in Support of Motion to Compel Discovery
on Issues Other Than Selective Prosecution," United States
v. Wen Ho Lee, May 10, 20001: 14.
316. "Response to Defendant Wen Ho Lee's Motion to Compel
Discovery on Issues Other than Selective Prosecution, United
States v. Wen Ho Lee, June 9, 2000: 6.
317. Judge James A. Parker, "ORDER," July 13, 2000: 3.
[Docket number 107 on the case docket]
318. Judge James A. Parker, "ORDER," August 9, 2000: 1-2.
[Docket number 130]
319. Matthew Purdy, "The Making of a Suspect: The Case of
Wen Ho Lee," New York Times, February 4, 2001: online
edition.
320. Transcript of Proceedings, Plea Hearing, United States
v. Wen Ho Lee, September 13, 2000: 34.
321. Transcript of Proceedings, Plea Hearing, United States
v. Wen Ho Lee, September 13, 2000: 34-36.
322. Transcript of Proceedings, Plea Hearing, United States
v. Wen Ho Lee, September 13, 2000: 36.
323. Transcript of Proceedings, Plea Hearing, United States
v. Wen Ho Lee, September 13, 2000: 37.
324. Transcript of Proceedings, Plea Hearing, United States
v. Wen Ho Lee, September 13, 2000: 37.
325. Plea Hearing transcript, September 13, 2000: 56-57,
326. United States, Joint Hearing Before the Senate Select
Committee on Intelligence and the Judiciary Committee,
"Joint Hearing on the Wen Ho Lee Case," 106th Congress, 2nd
Session, September 26, 2000: 41.
327. United States Senate, Joint Hearing Before the Senate
Select Committee on Intelligence and the Judiciary Committee,
"Joint Hearing on the Wen Ho Lee Case," 106th Congress, 2nd
Session, September 26, 2000: 41-43.
Mr. SPECTER. Mr. President, I now turn to the report on the handling
of the espionage case against Dr. Peter H. Lee: Again, I intend to read
only a sentence or two, as I have been advised that a sentence or two
would be sufficient to have the remainder of the report printed in the
Record.
On October 7th and 8th, 1997, Dr. Peter Hoong-Yee Lee
confessed to the FBI that he
[[Page S13822]]
had provided classified nuclear weapons design and testing
information to scientists of the People's Republic of China
on two occasions in 1985 and had given classified
antisubmarine information to the Chinese in May of 1997. The
1985 revelations, which occurred during discussions with,
and lectures to, PRC scientists in Beijing hotel rooms,
involved his work on hohlraums, devices used to simulate
nuclear detonations in a process called Inertial
Confinement Fusion, or ICF.\1\ According to a 17 February
1998 "Impact Statement" prepared by experts from the
Department of Energy,
"the ICF data provided by Dr. Lee was of significant
material assistance to the PRC in their nuclear weapons
development program. . . . For that reason, this analysis
indicates that Dr. Lee's activities have directly enhanced
the PRC nuclear weapons program to the detriment of U.S.
national security." \2\
The "Impact Statement" further notes that "the ICF
Program, when developed in conjunction with an already
existing nuclear program, could assist in the design of more
sophisticated nuclear weapons." \3\
Dr. Lee's 1997 disclosures came in two lectures to PRC
scientists, again in China, where he discussed his work on
the joint U.S./U.K. Radar Ocean Imaging (ROI) project. The
objective of the project, which has been carried out over
several years at the cost of more than $100 million, is to
study the feasibility of using radars to detect submerged
submarines. After viewing videotapes of Dr. Lee's confession,
Dr. Richard Twogood, former Technical Program Leader for the
ROI project, stated that Dr. Lee's disclosures contained
classified information at the SECRET level which went right
to the heart of the most significant technical achievement of
the U.S./U.K. program up until 1995.\4\ Although Dr. Lee was
not charged for the 1997 disclosures of classified
information, a 9 March 2000 review by the Department of
Defense concluded that Dr. Lee's anti-submarine warfare
revelations were classified at the CONFIDENTIAL level,\5\
which, by definition, would damage U.S. national security.\6\
According to the Cox Committee Report, "this research, if
successfully completed, could enable the [Chinese military]
to threaten previously invulnerable U.S. nuclear
submarines." \7\
Dr. Lee's confessed crimes caused serious harm to U.S.
national security, yet he was offered a plea bargain which
resulted in a sentence amounting to one year in a half-way
house, 3,000 hours of community service and a $20,000 fine.
Considering the magnitude of Dr. Lee's offenses and his
failure to adhere to the terms of the plea agreement which
called for complete cooperation and truthfulness, the
interests of the United States were not well served by this
outcome.
During the 106th Congress, I chaired a special subcommittee
of the Senate Judiciary Committee for the purposes of
conducting oversight on the Department of Justice's handling
of this case and several other matters. The Subcommittee's
review of the Dr. Peter Lee case identified a number of
shortcomings in existing procedures for handling espionage
investigations and prosecutions, particularly in cases
where highly technical classified information is revealed
verbally rather than through the transfer of documents.
Communications between and within the Department of
Justice and other Executive Branch organizations appear to
have broken down at critical points during the Peter Lee
case, with the result that several key decisions were made
on the basis of incomplete or incorrect information. Had
this case been handled more formally and deliberately,
with more of the critical information being communicated
in writing, the opportunities for misunderstandings would
have been greatly reduced, and the chances of Dr. Lee
receiving a long prison sentence commensurate with his
crimes would have been greatly increased. Specifically,
the Subcommittee's investigation showed that:
The classified nuclear weapons design and anti-submarine
warfare information that Dr. Lee revealed in 1985, 1997, and
on other occasions may have merited prosecution under 18 USC
794, the most serious of the espionage statutes.
Senior DoJ officials, including the Attorney General and
the Deputy Attorney General, were not sufficiently involved
in or aware of the case. Principal Deputy Assistant Attorney
General John Keeney, the official with final approval
authority in the case, advised that he would not have
approved the plea bargain had he known the trial prosecutor
would ask for only a short period of incarceration and would
charge only an attempt to transmit classified information.\8\
The Department of Justice's ability to seek a tougher plea
agreement or to prosecute Dr. Lee under section 794 was
hampered by its failure to fully understand the
classification level of, and the damage to national security
from, Dr. Lee's nuclear weapons design revelations prior to
offering him a plea agreement.
DoJ failed to inform the court that Dr. Lee repeatedly
confessed to disclosing classified information to the PRC in
1997, allowing the defense to convince the judge during
sentencing that the only time Dr. Lee intentionally passed
classified information was more than 13 years prior.
DoJ did not have the DoE's "Impact Statement," which
stated that Dr. Lee had provided significant material
assistance to the PRC nuclear weapons program, until February
1998, well after the plea agreement was concluded.
The reluctance of the Department of Defense, and the Navy
in particular, to support the prosecution of Dr. Lee for his
anti-submarine warfare revelations had an adverse impact on
the case.
The ambiguity of the 14 November 1997 memorandum authored
by Mr. J.G. Schuster, head of the Navy's Science and
Technology Branch, seriously undermined DoJ efforts to
prosecute Dr. Lee. This memorandum was based on incomplete
information, without knowing the details of what Dr. Lee
confessed to disclosing to PRC scientists.
DoJ prematurely determined that Dr. Lee could not be
prosecuted for the 1997 revelations, and the explanation that
the information Dr. Lee revealed was already in the public
domain is contradicted by two classified memoranda from
Lawrence Livermore National Laboratory which show that the
disclosures extended beyond what was publicly available.
DoJ's failure to prosecute on the 1997 disclosures, or at
least to add them as a separate count to the plea agreement,
had a material adverse effect on the disposition of the case.
Coupling the 1997 disclosures with the 1985 revelations would
have demonstrated that Dr. Lee's classified disclosures were
not limited to a single incident long ago, but were ongoing.
Obtaining a conviction on the 1997 disclosures would not have
been a foregone conclusion--pushing the matter risked
disclosing certain information that the FBI and the
prosecutor wanted very much to protect, and the Navy was
reluctant to assist in the prosecution--but these were not
insurmountable obstacles. At a minimum, an effort should have
been made to add a separate count to the plea agreement to
address these disclosures.
DoJ communications were confused on the critical question
of what authority the trial prosecutor had with regard to a
charge under Section 794. DoJ officials advised that the
Internal Security Section would have reconsidered a
prosecution under Section 794 if the plea agreement broke
down,\9\ which was unknown to the trial prosecutor who
thought he could only take the watered-down plea bargain or
get nothing at all.\10\
The fact that Dr. Lee was an espionage suspect while
working on the Joint U.S./U.K. Radar Ocean Imaging project
was not disclosed to the program's sponsors within the Office
of the Assistant Secretary of Defense/Command, Control,
Communications and Intelligence (OASD/C3I).\11\
Electronic surveillance under the Foreign Intelligence
Surveillance Act was terminated at a critical juncture in
September 1997, just when the FBI was stepping up its
activity with regard to Dr. Lee and electronic surveillance
could have yielded important counter-intelligence
information. Although the listening device in Dr. Lee's
home had been discovered in July, thereby decreasing the
utility of that particular device, the FBI Field Office
felt strongly enough about the need for continued
surveillance to make a verbal renewal request to FBI
Headquarters in August, but not strongly enough to ensure
the request was granted.
The problems which affected this case were serious enough
to require remedial steps. The Counterintelligence Reform Act
of 2000 (S.2089), which became law on 27 December 2000 as
Title VI of Public Law 106-567 (H.R. 5630), contained a
provision that will address many of the shortcomings in the
way the DoJ handled this case. That provision, Section 607,
amended the Classified Information Procedures Act (CIPA) to
require that the Assistant Attorney General for the Criminal
Division and the appropriate United States attorney provide
briefings to senior agency officials from the victim agency
in cases involving classified information. The section
further required that these briefings occur as soon as
practicable after the Department of Justice and the United
States attorney concerned determine that a prosecution could
result and at such other times thereafter as are necessary to
keep the affected agency fully and currently informed of the
status of the prosecution.
The Subcommittee's investigation revealed other problems
that have not yet been addressed through legislation,
primarily because it was not possible to reach a consensus on
how best to solve them. The Counterintelligence Reform Act
moved through the Judiciary Committee and the Senate Select
Committee on Intelligence without a single vote in
opposition. The Judiciary Committee reported the measure
favorably on 23 May 2000 and the Intelligence Committee did
the same on 20 July 2000. As the bill's chief sponsor, I
opted to work toward a consensus measure to ensure that the
important reforms we had identified during oversight on this
case and the Dr. Wen Ho Lee case could be implemented in a
timely fashion. Rather than wait until we could work out
acceptable language on other proposals arising from the Peter
Lee case, I felt it more important to accomplish what could
be done in the time available and address the more difficult
matters later. I also withheld publication of this report
during the last Congress so as not to inject it into the
presidential election. Now that the election is over and the
107th Congress is well underway, it is appropriate to release
this report and begin working on legislation to solve the
other problems identified by our oversight but upon which we
were unable to achieve consensus.
Specifically, I am introducing legislation to require
victim agencies--the agencies whose classified information is
lost--to
[[Page S13823]]
produce a written "damage statement" which specifies the
level of classification of the material alleged to have been
revealed, and justifies the classification level by
describing the potential harm to national security from such
revelations. The legislation further requires the prosecution
team to consider the "damage statement" before any final
decision is made as to whether the case should be taken to
trial or a plea bargain should be offered. I also strongly
believe, but will not attempt to mandate through legislation,
that key instructions from Main Justice (Internal Security
Section, etc.) to the U.S. Attorney's Office with
responsibility for prosecuting the case, including charging
authority and plea bargain authority, should be in writing.
These written instructions should be shared with the
investigating agency or agencies and the victim agency so
they have an opportunity for input before any final
decisions are made.
The findings and recommendations included in this report
are based on a review of more than 6,000 pages of documents
from the FBI, the Department of Defense and its sub-
components, the Department of Justice and information
submitted to the court during the sentencing process. The
Subcommittee conducted three open hearings, three closed
hearings, two "on-the-record" Senators' briefings, and
numerous staff interviews, which resulted in hearing from
more than 30 individuals who played key roles in the conduct
of the case. The information presented here is derived from
unclassified documents and testimony, or relies upon
unclassified extracts from classified documents.
summary of dr. peter h. lee's espionage activities
Dr. Peter Lee is a naturalized U.S. citizen who worked for
TRW Inc., a contractor to Lawrence Livermore National
Laboratory, from 1973 to 1976. Dr. Lee worked at Lawrence
Livermore from 1976 to 1984, and at Los Alamos National
Laboratory from 1984 to 1991. He returned to TRW from 1991
until December 1997, when he was dismissed in the wake of his
plea agreement for passing classified information to the
Chinese.\12\
According to his October 1997 confession to the FBI, Dr.
Lee traveled to China from 22 December 1984 to 19 January
1985 (while he was employed by Los Alamos National
Laboratory).\13\ On 9 January 1985, Dr. Lee met with Chen
Nengkuan, a PRC scientist employed by the China Academy of
Engineering Physics (CAEP), in a hotel room in Beijing. Chen
told Dr. Lee that he had classified questions to ask, and
that Dr. Lee could answer just by nodding his head yes or
no.\14\ Chen drew a diagram of a hohlraum (a device in which
lasers are fired at a glass globe to "create a small nuclear
detonation which is then studied and used in the design of
nuclear weapons)," \15\ and asked the classified questions,
which Dr. Lee, by his own admission, knew were classified but
answered anyway.\16\
The following day, Dr. Lee accompanied Chen to a hotel in
Beijing where another group of PRC scientists was waiting.
These scientists were also from the China Academy of
Engineering Physics, which is "responsible for all aspects
of the PRC's nuclear weapons program." \17\ Among the
scientists Dr. Lee briefed was Yu Min, who has been called
"the `Edward Teller' of the PRC nuclear weapons
program." \18\ For two hours, Dr. Lee answered questions
and drew diagrams, including several hohlraums. Dr. Lee
also "discussed problems the U.S. was having in its
nuclear weapons testing program." \19\ Dr. Lee further
admitted discussing with the Chinese scientists at least
one portion of a classified document he authored in 1982.
Although the document, titled "An Explanation for the
Viewing Angle Dependence of Temperature from Cairn
Targets," was subsequently declassified in 1996,\20\
revealing its contents in 1985 was an illegal act that
could be expected to provide substantial assistance to the
Chinese from 1985 to 1996 and to harm U.S. national
security.
Dr. Lee again visited China, while he was employed by TRW,
from 30 April to 22 May 1997.\21\ Although Dr. Lee claimed on
his travel request form, and in a 25 June 1997 interview with
FBI Agent Gilbert Cordova, that the visit to China had been a
pleasure trip for which he paid all his own expenses, the
truth was that Dr. Lee traveled as a guest of the Chinese
Institute of Applied Physics and Computational Mathematics
(IAPCM), which is part of the China Academy of Engineering
Physics.\22\
During this May 1997 trip, Dr. Lee gave a lecture at the
PRC Institute of Applied Physics and Computational
Mathematics in Beijing. The lecture covered his work for TRW
in support of the Radar Ocean Imaging Project, and was
attended by nearly 30 top PRC scientists.\23\ When asked
about the applicability of his work to anti-submarine
warfare, Dr. Lee showed the scientists a surface ship wake
image (which he had brought from the U.S. to show them), drew
a graph, explained the physics underlying his work, and told
the Chinese where to filter the data within the graph to
enhance the ability to locate the ocean wake of a vessel.\24\
A few days later, Dr. Lee gave the same lecture in another
city, using the graphs that the Chinese had saved from his
first lecture and had brought to the second lecture for his
use.\25\
Upon his return from the PRC, Dr. Lee filled out a TRW
Post-Travel Questionnaire in which he denied that there
"were any requests from Foreign Nationals for technical
information," and denied that there were any attempts to
persuade him to reveal or discuss classified information.\26\
On 5 August and 14 August 1997, Peter Lee was interviewed
by FBI agents at a Santa Barbara, California, hotel. During
these interviews, Dr. Lee admitted that he had lied on his
travel form about the purpose of his trip to China in May,
and that he had lied about receiving requests for technical
information. However, he continued to insist that he had paid
for the trip to the PRC with his own money.\27\
After the two FBI interviews, Dr. Lee contacted a Chinese
official named Gou Hong by e- mail on 25 August 1997, and
requested that Gou provide Lee with receipts indicating that
Lee had paid for the trip to the PRC, that the receipts
contain the names of Lee and his wife in English, and that
they show that Lee paid cash for the trip.\28\ On 3 September
1997, Dr. Lee provided the FBI with copies of hotel and
airline receipts for the May 1997 trip which stated that
Lee had paid for the trip in cash. Based on a review of e-
mail transmissions and telephone conversations between Lee
and Gou, however, the FBI concluded that these receipts
were false.\29\
On 7 October 1997, Dr. Lee was interviewed and polygraphed
by the FBI. The polygraph examiner believed that Lee showed
deception when he answered "no" to the following questions:
(A) Have you ever deliberately been involved in espionage
against the United States? (B) Have you ever provided
classified information to persons unauthorized to receive it?
(C) Have you deliberately withheld any contacts with any non-
U.S. intelligence service from the FBI? \30\ After being told
that he had failed the polygraph on these questions, Dr. Lee
made a videotaped confession in which he admitted "having
passed classified national defense information to the PRC
twice in 1985, and to lying on his post-travel questionnaire
in 1997." \31\
During this same interview, Dr. Lee also repeatedly
confessed that he intentionally revealed classified
information during his 1997 anti-submarine lectures in China.
Dr. Lee was not prosecuted for these revelations, and the
judge was not adequately informed of these admissions at
sentencing.
On 8 December 1997, Dr. Lee pleaded guilty to a two count
information that he violated: (1) 18 USC 793(d)--Attempt to
communicate national defense information to a person not
entitled to receive it, and (2) 18 USC 1001--False statement
to a government agency.\32\ According to the press release
from the office of U.S. Attorney Nora Manella, Dr. Lee
"admitted that he knew the information was classified, and
that by transmitting the information he intended to help the
Chinese." \33\ The offenses to which Lee pleaded guilty
could have resulted in a maximum sentence of 15 years in
federal prison and a fine of $250,000. Under the terms of the
agreement, the Government asked for a "short period of
incarceration," a formulation that was negotiated by the
trial attorney and approved by Mr. John Dion in the Internal
Security Section, but was not approved by Principal Deputy
Assistant Attorney General Keeney, the DoJ official with
final authority, who advised the Subcommittee that he would
not have approved the plea agreement had he known that it
would request only a short period of incarceration as an
opening position.\34\
On 26 March 1998, Dr. Lee was sentenced by U.S. District
Court Judge Terry Hatter to one year in a community
corrections facility, three years of probation, 3,000 hours
of community service, and a $20,000 fine. The sentence was
based upon a sealed plea agreement from 8 December 1997.\35\
The plea agreement and other key documents in the case were
unsealed at the request of the Subcommittee in late 1999.\36\
Every DoJ official interviewed by the Subcommittee expected
Dr. Lee to receive jail time, during which they planned to
seek his further cooperation. When he received no jail time,
all leverage was lost by the government.
Analysis of the Nuclear Weapons Design Revelations
The importance of Dr. Lee's 1985 disclosures is highlighted
by the 17 February 1998 "Impact Statement" from the
Department of Energy which concludes that:
"the [Inertial Confinement Fusion] data provided by Dr.
Lee was of significant material assistance to the PRC in
their nuclear weapons development program. . . . For that
reason, this analysis indicates that Dr. Lee's activities
have directly enhanced the PRC nuclear weapons program to the
detriment of U.S. national security." \37\
The "Impact Statement" further notes that "the ICF
Program, when developed in conjunction with an already
existing nuclear program, could assist in the design of more
sophisticated nuclear weapons." \38\
The trial attorney wanted to prosecute under Section 794
for the 1985 revelations, but was overruled by Main Justice
as well as his supervising attorney.\39\ In his 12 April 2000
written statement to the Subcommittee, the Internal Security
Section (ISS) line attorney with primary responsibility for
the Peter Lee case, explained why he did not feel it
appropriate to pursue a 794 charge on the 1985 disclosures.
"In my estimation, both then and now, the sole weakness in
the case was the questionable significance of the information
Lee compromised, both in 1985 and in 1997. As to Lee's 1985
disclosure, I knew, for instance, that the Department had
never prosecuted a case under 794 where the compromised
information, as in the case of Lee's 1985 disclosure, had
been declassified prior to the crime
[[Page S13824]]
being discovered. Let me emphasize this: the information Lee
admitted disclosing in 1985 had been declassified." \40\
This analysis may be correct as far as it goes, but there
were other factors and issues that should have been
considered. Dr. Lee's confession, though carefully crafted to
limit his exposure, simply confirmed much, but not all, of
what the FBI already knew about his espionage activities. The
FBI knew well before they confronted Dr. Lee that he had
likely been compromising anti-submarine information since the
early 1990s,\41\ and that in the early 1980s Dr. Lee had
allegedly given the Chinese classified information that
greatly assisted their nuclear weapons program.\42\ One
scientist the FBI consulted in trying to evaluate the extent
of Dr. Lee's revelations said, "It seems likely that Peter
Lee at least partially compromised every project, classified
or unclassified, he was involved with at Livermore, [Los
Alamos National Laboratory], and TRW." \43\
At a later stage of the proceeding, Dr. Lee admitted that
he had given the PRC scientists additional information which
had not been declassified. Had the Internal Security Section
awaited fuller development of the facts, it might not have
declined prosecution under 794 on grounds of subsequent
declassification. The Government would have been able to
corroborate Dr. Lee's confession and to prove that he had
done more than he confessed to. As the prosecuting attorney
noted during his 5 April 2000 appearance before the
Subcommittee, ". . . in the many cases I had with a
cooperating defendant or a defendant who pled guilty who was
debriefed, I never had the kind of information to corroborate
what was said as I did in this case." \44\
The ISS line attorney's statement regarding the
"questionable significance of the information Lee
compromised" in 1985 is flatly contradicted by the DoE
"Impact Statement" of 17 February 1998 which states that
Dr. Lee did serious harm to U.S. national security. Had
the ISS line attorney waited for the experts to evaluate
the case, he would have known that a 794 charge should be
given much greater consideration than it got.
During testimony before the Subcommittee, the ISS line
attorney who handled the case stated that it would have been
impractical to wait for a damage assessment which, in his
experience, normally takes more than a year. In fact,
however, there were two assessments available within less
than 90 days of the start of plea negotiations. Dr. Thomas
Cook's "Declaration of Technical Damage to United States
National Security Assessed in Support of United States v.
Peter Hoong-Yee Lee" was available in February 1998, as was
the Department of Energy "Impact Statement."
The Government had spent six years and considerable amounts
of money investigating Dr. Lee's espionage activities, had
obtained a confession that substantiated much of the
information it already had from other sources, and had not
charged Dr. Lee with a crime and therefore did not have a
speedy trial issue to contend with. Consequently, there was
no reason why the Government could not wait for a complete
analysis by competent experts of Dr. Lee's espionage
activities. The failure to obtain such an analysis prior to
entering a plea agreement seriously undermined the
Government's ability to prosecute Dr. Lee under section 794,
and was a major factor in the unsatisfactory disposition of
the case.
In his testimony before the Subcommittee on 12 April 2000,
the ISS line attorney who handled the Lee case further argued
that the Government would have had a hard time proving that
the classified nuclear weapons design information that Dr.
Lee provided to the Chinese was related to the national
defense, an element of proof that would have been necessary
to sustain a charge under 18 USC 794. In response to a
question from Senator Sessions, the attorney said that the
information Dr. Lee revealed in 1985 "was classified SECRET,
but I'm not sure it would have been ultimately found to be
national defense information at the time he compromised it."
When pressed by Senator Sessions to explain how nuclear
weapons design information could be deemed not related to the
national defense, the attorney referred to the Supreme
Court's opinion in Gorin v. United States.\46\ Any reliance
on the Gorin decision in the context of the Peter Lee case is
misplaced. The Gorin case was decided in January 1941, well
before the advent of nuclear weapons. The Court's opinion,
written by Justice Reed, makes clear that the information in
the Lee case would have been found to be "national defense
information." In the words of the Court:
"National defense, the Government maintains, "is a
generic concept of broad connotations, referring to the
military and naval establishments and the related activities
of national preparedness." We agree that the words
"national defense" in the Espionage Act carry that
meaning." \47\
When the Supreme Court held, as it did in Gorin, that
reports "as to the movements of fishing boats, suspected of
espionage and as to the taking of photographs of American war
vessels" \48\ constituted national defense information,
there can be no doubt that nuclear weapons design information
would be encompassed by the term.
The DoJ attorney also cited the decision of the Second
Circuit Court of Appeals in United States v. Heine.\49\ That
case has no applicability to this matter since all the
information given to a German automobile corporation was
publicly available at the time of disclosure.\50\
During the sentencing hearing, Dr. Lee's lawyer, Mr. James
Henderson, tried to downplay the significance of the 1985
revelations through character witnesses who claimed that the
disclosures were not related to nuclear weapons but to energy
production.\51\ These witnesses did not have access to the
text or tape of Dr. Lee's confession which detailed the
extent of his revelations.\52\ Dr. Cook and the authors of
the 17 February 1998 DoE "Impact Statement" had access to
Dr. Lee's confession and were in a position to evaluate the
extent of damage and of the espionage. In view of these facts
it was surprising that the ISS attorney advanced the
argument:
"that Lee could claim that he made the disclosures to
encourage China not to conduct nuclear weapons tests in the
field, and he would likely be supported by internal
Government documents or even testimony of former U.S.
Government or Livermore officials that that was actually one
of the reasons the U.S. Government declassified the
information beginning in 1990.
"In other words, Lee would have been able to credibly
argue that his actions were in the national interest." \53\
Any claim by Dr. Lee that his actions were in the national
interest would be totally unfounded. Individual scientists do
not have the latitude to make determinations--during the
course of lectures in Beijing hotel rooms--as to whether or
not it is in the national interest to help the Chinese
develop more sophisticated nuclear weapons.
The prosecuting attorney made this very point at the
sentencing hearing when he said, "It is not up to the whim
of an individual scientist to determine if something is
classified. . . . This is one of the nation's top scientists
from one of the nation's top research nuclear weapons
facilities giving a two hour lecture regarding classified
information to the top nuclear scientists of China." \54\
Dr. Lee very likely could have been prosecuted under 18 USC
794, the harshest of the espionage statutes, for his nuclear
weapons design revelations. As Senator Sessions said at the
Subcommittee's 5 April 2000 hearing:
"I don't think [the prosecuting attorney] would have had a
problem getting a conviction on that. [Dr. Lee] confessed to
it, number one. Number two, I don't think any jury is going
to believe that he was there for his health and a casual
conversation to have two different meetings in Beijing hotel
rooms with top Chinese scientists. There is no business for
that, and anyone with common sense would understand it."
\55\
In the context of the prosecuting attorney's efforts to
proceed under 794 and Senator Sessions' strongly expressed
views, there is a strong argument that a 794 prosecution
should have been brought.
Internal DoJ Mis-communication and a Lack of High Level
Supervision
Unfortunately, the case never went to trial. By late
November 1997, the Internal Security Section attorney had
completed his analysis of the case, concluding that Dr. Lee
should be offered a plea under 18 USC 793 or section 224(b)
of the Atomic Energy Act of 1954 for the 1985 compromise, in
combination with a charge under section 1001 for the false
statements on his travel form.\56\ When it became apparent
that "Lee was balking at a plea with a potential 10-year
exposure for the 1985 incident," the attorney recommended
to Mr. Dion that "although the section 794 case for that
incident in 1985 had problems, it was sufficiently robust
that we could ethically use it as leverage." \57\ Mr.
Dion testified that he called the prosecuting attorney and
authorized him to:
"seek a plea of guilty by Lee to a violation of 18 USC
Section 793(d) for his 1985 disclosures and to a violation of
the false statement statute, 18 USC Section 1001. As such a
plea would require Lee to waive the 10-year statute of
limitations, [the prosecuting attorney] was authorized to
advise counsel that no final decision had been made as to the
prospect of charging Lee with a violation of Section 794."
\58\
The prosecutor, who was emphatic in his testimony that his
instructions were to accept a plea under 793 and 1001, or
nothing,\59\ obtained a plea on both counts, but had to
concede to only a "short period of incarceration" to secure
Dr. Lee's agreement.\60\ Principal Deputy Assistant Attorney
General John Keeney told the Subcommittee that, ". . . I was
not aware, so far as I recall, that it would call for only a
short period of incarceration or would charge only an
attempted 793 charge. Had this been our opening position in
plea negotiations, I doubt that I would have approved it,
particularly, the `short period of incarceration.' " \61\ He
then tried to justify DoJ's handling of the case by saying
that "this was the best that could be hoped for given the
sentencing practices of the courts in the Central District of
California." \62\
Had Dr. Lee cooperated, as he was required to do under the
plea agreement, it might have been possible to achieve an
acceptable disposition in the case even with the weak plea
agreement. Had Dr. Lee told the whole truth and provided
whatever counter-intelligence information he knew, that would
mitigate the need to punish him with a long sentence. It
might have been acceptable to balance counterintelligence
information gained from a cooperating defendant against the
need to punish wrongdoing. However, there is no benefit in
accepting a plea contingent upon the defendant's cooperation
[[Page S13825]]
and then not getting that cooperation. Dr. Lee did not live
up to his obligation to be truthful. The "Position with
Respect to Sentencing Factors" that the Government submitted
to the court acknowledged "concerns that defendant has still
not been completely forthcoming about the nature, quality and
extent of his improper contacts with scientists of the PRC."
\63\ Dr. Lee's lack of cooperation was further highlighted in
the February 1998 DoE "Impact Statement" where the authors
note that:
"[W]e do not believe that Dr. Lee has been fully
cooperative in identifying or describing other classified
information he may have compromised. We believe that Dr. Lee
confessed to compromising selected classified information in
the hope his other, more damaging activities would not be
discovered or fully investigated." \64\
On 26 February 1998, Dr. Lee failed an FBI-administered
polygraph where he was asked whether he had lied to the FBI
since his last polygraph examination regarding passing
classified information.\65\ When interviewed by DoE
scientists in March 1998, Dr. Lee again failed to cooperate
fully. As Dr. Thomas Cook pointed out during his testimony
before the Subcommittee on 29 March 2000, when asked
questions about what he had done, Dr. Lee "repeatedly denied
any knowledge or any interest in classified programs and
publications. He was, however, the author and/or the
technical editor of some of these publications which he
denied knowledge of." \66\ In view of these repeated lies
and lack of cooperation, there should be no doubt that Dr.
Lee did not comply with the terms of the plea agreement, and
the Government could have successfully sought to breach it.
When asked by Senator Specter why he did not breach the
plea agreement in view of this lack of cooperation, the
prosecuting attorney explained that he could not abrogate the
deal because he had nothing to fall back on,\67\ and because
doing so risked exposing extremely sensitive classified
information he had been instructed to protect.\68\ The
prosecutor advised that he was told that if there was a risk
of certain evidence coming out, he would have to drop the
case. As the case unfolded, however, there was no risk of
that evidence being disclosed. In the absence of any problem
as to disclosure of the sensitive information, and had the
prosecutor known he could have, or at least might have been
able to proceed with the 794 prosecution, then the better
course would have been to have abrogated the plea agreement
on the basis of Peter Lee's failure to cooperate which could
have been established without disclosing any classified
information.
Due to the significance of the sensitive information about
which the prosecutor was concerned, and the restrictions it
placed on the prosecution of the case, it is troubling that
at no time during the course of the Subcommittee's review of
the case did Mr. Dion or anyone else from DoJ ever brief
Congress about the information until after the prosecuting
attorney raised the subject in the context of explaining why
he had not sought to abrogate the plea agreement. The
Classified Information Procedures Act (CIPA) specifically
provides procedures whereby the Government can deal with the
risks of exposing such information, even to the extent of
permitting the Attorney General to decline prosecution if the
risk of exposing classified information is too high. There is
no evidence that the Department of Justice formally
considered this sensitive information in the CIPA context.
The prosecutor's understanding of his limited authority was
caused by a breakdown of communications. As he understood his
authority, since Dr. Lee had waived the statute of
limitations on the 793 count to accept the plea, breaching
the plea would leave the Government with only the 1001 count,
which was also in the plea. Therefore, the prosecutor felt he
had to stick with the plea agreement because it was that or
nothing.\69\ Even though the prosecutor knew Dr. Lee was
lying and was not cooperating, he felt he could not abrogate
the plea agreement because he thought he could not charge Dr.
Lee under Section 794 due to constraints imposed by the
Internal Security Section at Main Justice.
Mr. Dion conceded at the Subcommittee's 12 April 2000
hearing that he did not recall discussing with the
prosecuting attorney that he (Dion) might reconsider a 794
prosecution if the proposed plea agreement fell through:
Senator Specter: You say no final decision had been made .
. . as to whether he would be charged with 794?
Mr. Dion: That's correct, sir. . . .
Senator Specter: . . . Mr. Dion, when you say no decision
had been made and I interrupted you at that point as to what
would happen if the plea bargain broke down, [the prosecuting
attorney] testified very emphatically that he wanted to
proceed with 794 but was told that all he could do was do the
best he could under the authorized plea bargain, so that is
why he proceeded as he did, asking for only a short period
of incarceration and not taking action when Dr. Lee lied
on his polygraph and did not give further answers. But are
you suggesting, if that plea bargain had broken down, that
you might have reconsidered and authorized a 794
prosecution?
Mr. Dion: We definitely would have reconsidered our course
of action, sir.
Senator Specter: Well, did you tell [the prosecutor] that?
Mr. Dion: I don't recall specifically if we discussed that
or not. We did discuss that no final decision had been made
on the 794 and that he should proceed with plea negotiations
on that basis.\70\
In the face of the prosecuting attorney's testimony that he
was authorized only to take the weak plea agreement or
nothing, it seems clear that he was correct on what authority
was communicated to him.
The prosecuting attorney was not the only one who did not
understand the Internal Security Section's position with
regard to a charge under Section 794. An FBI e-mail of 25
November 1997, from an attorney in the National Security Law
Unit, to an FBI Supervisory Special Agent in the National
Security Division, noted in relevant part that "According to
[the FBI Supervisory Special Agent], ISS/Dion said that if
[Dr. Lee] doesn't accept the plea proffer, then he gets
charged with 18 USC 794, the heftier charge."
The Secretary of Defense was told the same thing. On 26
November 1997, Colonel Dan Baur prepared a memorandum for the
Secretary of Defense and the Deputy Secretary of Defense, in
which he relayed information on the case he had received from
the FBI. Colonel Baur's memo stated that DoJ had granted the
U.S. Attorney authority to offer to let Lee plead guilty
under 18 USC 793 and 18 USC 1001 to avoid being charged under
Section 794.\72\ Furthermore, the memo noted that "should
Lee decline the offer, the U.S. Attorney will seek an
indictment against him for violation of Section 794." When
read relevant portions of these communications at the
Subcommittee's 12 April 2000 hearing, however, Mr. John Dion
stated that they were incorrect.\73\ Clearly there was a mis-
communication on this very important issue, both within the
Department of Justice and between DoJ and DoD.
It is surprising and disturbing that a critical piece of
information in the case exactly what the Assistant U.S.
Attorney was authorized to do and under what terms he was
authorized to do it could be subject to such differing
interpretations and understandings. In an effort to
understand how such a fundamental point could be
misunderstood, the Subcommittee traced the information that
appeared in Colonel Baur's memo to Secretary Cohen back to
its origins. It appears that Mr. Dion spoke to the
prosecutor, who then spoke to the Los Angles case Agents.
Sometime thereafter, the FBI Supervisory Special Agent in Los
Angles was briefed by one of the two case agents, or by both.
One of these agents relayed the information to the attorney
in National Security Law Unit, who passed it on to the FBIHQ
Supervisory Special Agent, for subsequent relay to Colonel
Baur. Whatever the actual path of the information--and
wherever the mis-communication was introduced--it is clear
that the information did not pass, as one might expect, from
the Internal Security Section to the Department of Defense.
The ISS line attorney handling the case testified that he
never spoke to anyone in DoD about the plea discussions. As a
consequence of this failure to communicate, the victim agency
and officials within the Department of Justice were acting
without a clear understanding of the actual decisions that
had been made.
It is obvious that the case would have benefitted from more
direct supervision by high level Justice Department
officials, which would have likely reduced the confusion
within the Department of Justice and between DoJ and the
Department of Defense. Attorney General Reno was provided
with three "Urgent Reports" informing her of "(1) Peter
Lee's admission on October 7, 1997, (2) his entry of a guilty
plea on December 9, 1997, and (3) the court's imposition of
sentence on March 26, 1998." \75\ On 31 October 1997, as
required by law, she also signed the document authorizing the
use of FISA-derived information for law-enforcement purposes.
She was not otherwise involved in the case, leaving the
matter to subordinates. The Deputy Attorney General, Mr.
Holder, was also uninvolved in the case.
Mr. John Dion was the supervisory attorney in the Internal
Security Section, but one of his subordinates made the
substantive decisions in this case. When questioned about
allegations that Dr. Lee's revelations extended beyond what
he confessed to, for example, Mr. Dion deferred, saying that
one of his subordinate attorneys was "more directly familiar
with that information than I am. . . ." \76\ More direct
supervision by key DoJ personnel may have ensured a better
outcome in this important espionage case.
Analysis of the Anti-Submarine Warfare Revelations
It also appears that Dr. Lee should have been prosecuted in
relation to the information he revealed in his May 11, 1997
briefing of Chinese scientists. Charges should have been
filed under Section 794(a) which applies to "any other major
weapons system or major element of defense strategy." The
U.S. nuclear submarine fleet, which comprises one leg of the
nation's strategic triad, would qualify as a major weapons
system. The potential harm from Dr. Lee's 1997 revelations
was described by the Cox Committee Report:
"Lee admitted to the FBI that, in 1997, he passed to PRC
weapons scientists classified research into the detection of
enemy submarines under water. This research, if successfully
completed, could enable the PLA to threaten previously
invulnerable U.S. nuclear submarines." \77\
To determine whether or not the information Dr. Lee
revealed would qualify for prosecution under section 794, the
Government first needed to get an assessment of that
information. On 14 October 1997, the Assistant
[[Page S13826]]
U.S. Attorney handling the case in Los Angeles contacted a
representative of the Defense Criminal Investigative Service.
He was referred to Dr. Donna Kulla in the Intelligence
Systems Support Office where she dealt with the Radar Ocean
Imaging (ROI) project on which Peter Lee worked. Dr. Kulla
informed the prosecuting attorney that the information that
Dr. Lee had revealed was classified CONFIDENTIAL.\78\
In mid-October, the FBI also contacted Dr. Richard Twogood,
of Lawrence Livermore National Laboratory (LLNL), and asked
for his opinion on the level of classification of Dr. Lee's
revelations. Dr. Twogood was the Deputy Associate Director
for Electronics Engineering at LLNL, and from 1988 until 1996
had been the Program Leader for the Imaging and Detection
Program at LLNL. The Joint U.S./U.K. Radar Ocean Imaging
Program, for which Dr. Twogood was the Technical Program
Leader from 1990 through 1995, was the single largest
component of LLNL's Imaging and Detection Program, and it
was the one where Dr. Peter Lee worked and where he would
have had access at the DoD SECRET level to the important
discoveries and significant advances in the development of
methods to detect submarine signatures with remote sensing
radars.\79\
Dr. Twogood is an authorized derivative classifier, which
means that he can make appropriate judgements about
classification based on guidance written by others. Although
the Navy had primary jurisdiction over the anti-submarine
warfare information that Dr. Lee revealed to the Chinese, Dr.
Twogood had personally written some of the classification
guidance being used in the Joint U.S./U.K. program, and was
therefore familiar with the importance of the information.
When he reviewed the videotaped confession on 15 October
1997, Dr. Twogood noted that Dr. Lee himself admitted that he
had passed CONFIDENTIAL information. Furthermore, Dr. Twogood
informed the FBI that the information was at least
CONFIDENTIAL and likely DoD SECRET. More importantly, in Dr.
Twogood's view, Dr. Lee's disclosures went right to the heart
of the most significant technical achievement of the U.S./
U.K. program up until 1995.\80\
The prosecuting attorney was concerned that Dr. Twogood's
position could be said to have evolved, from saying it was
CONFIDENTIAL when first asked, to the later position that the
information was SECRET. The prosecutor was also aware that
the defense would be able to find competent scientists who
would take a different view about the level of classification
due to the similarity of some of the information to what was
already in the public domain. These are legitimate concerns,
but are not outside the realm of what prosecutors contend
with in all espionage cases. They are, by no means,
sufficient to justify not going forward with the prosecution.
On 28 October 1997, the ISS attorney handling the case
attended a meeting with DoD officials for the purpose of
determining whether there was publicly available information
that could undermine an espionage prosecution for the 1997
compromise.\81\ At the meeting, the DoJ attorney provided DoD
officials with the draft Cordova affidavit, and made them
aware that the confession had been videotaped, but he did not
provide copies of the tapes and no DoD officials asked for
them.\82\ When asked about why he had not provided copies of
the tapes to DoD personnel, the ISS attorney replied:
"Because at that point, at the initial meeting, the
purpose was not to get a final classification determination
or even a preliminary classification determination on this
information. It was only to find out one of two things: what
publicly available information might be out there that could
potentially compromise a Section 794 prosecution on the 1997
compromise, and what could we say about the program
generally, as we have here today, in an open trial setting."
\83\
By 3 November 1997, the Department of Defense had compiled
an extensive list of publicly available information on the
topic of radar ocean imaging and provided it to the
Internal Security Section. Among the documents was a
printout from a LLNL website titled "Radar Ocean
Imaging," and prepared remarks that Dr. Twogood had
presented in open session before the House Armed Services
Committee in April 1994. Both of these documents contained
general information about the use of radars to detect
submarines.\84\ Based on his assessment of these
documents, the ISS attorney concluded that Dr. Lee could
not be prosecuted under section 794 for the 1997
compromise. As he put it in his 12 April 2000 appearance
before the Subcommittee:
"The Web site and Dr. Twogood's testimony, coupled with
the fact that the underlying 1995 document was only
classified under a mosaic theory, convinced me that there was
no section 794 case on the 1997 compromise. In my opinion,
Senators, it was not even a close call."\85\
The ISS line attorney was wrong in concluding that the
information was already publicly available.\86\ Subsequent
analysis showed that Dr. Lee's anti-submarine warfare
revelations extended beyond what was in the public domain and
therefore remained classified.
On 10 November 1997, in response to a 30 October request
from the prosecuting attorney, Lawrence Livermore employee Al
Heiman provided an FBI Special Agent with a copy of the
Security Plan covering the detection results in the U.K./U.S.
Radar Ocean Imaging program. The enclosed memorandum from Dr.
Twogood described the classification guidelines established
for the program. Paragraph 3 of Appendix A of the
classification guideline--indicating that "processing
techniques which, when applied to unclassified or classified
data, yield a significant enhancement in signature
detectability which might apply to the submarine case"
should be classified SECRET--was directly applicable to the
information that Dr. Lee revealed to the Chinese.\87\
On 14 November 1997, Mr. John G. Schuster, Jr., wrote the
following memorandum for Navy Captain Earl Dewispelaere:
"The signal analysis techniques briefed by the subject are
UNCLASSIFIED when applied to environmental data and they have
been presented and published in several unclassified forums.
Any application of the technique to submarine wake
signatures, however, would be classified at the SECRET level,
as called out in current classification guides.
"The material that was briefed appears to have been
extracted from a CONFIDENTIAL document. This classification
was applied based on concern that the document, taken as a
whole, might suggest a submarine application even though it
was not explicitly stated. Given that the CONFIDENTIAL
classification cannot be explicitly supported by the
classification guides and that material similar to that
briefed by the subject has been discussed in unclassified
briefings and publications, it is difficult to make a case
that significant damage has occurred. Further, bringing
attention to our sensitivity concerning this subject in a
public forum could cause more damage to national security
than the original disclosure.
"Based on the above, it is recommended that the disclosure
of this material should not be considered as the sole or
primary basis for further legal action." \88\
On 19 November 1997, the Schuster memorandum was sent to
Mr. Dion from Navy General Counsel Steven S. Honigman, who
stated that he and the Vice Chief of Naval Operations
concurred with Mr. Schuster's conclusions. The Schuster memo
has been described by various DoJ officials as a "body
blow" to the prosecution because of their view that it might
be "Brady material" or in some way exculpatory as to Dr.
Lee. At minimum, it seriously complicated DoJ's case.
The ambiguous Schuster memorandum was apparently designed
to later enable the Navy to take virtually any position: the
signal analysis techniques are unclassified; they could be
classified SECRET; the material was extracted from a
CONFIDENTIAL document; significant damage may not be
provable; bringing the issue to a public forum could damage
national security; avoid legal action. When Mr. Schuster was
questioned by the Subcommittee, he was unable to explain why
the memo was written as it was or what it meant. The most
charitable view of the Schuster memo is that it was
misleading and should never have been written.
The Schuster memo was based on incomplete information since
neither Mr. Schuster nor any other Navy or DoD personnel
reviewed the video or audio tapes of Dr. Lee's confession.
When that confession was reviewed at the Subcommittee's
request, Mr. Schuster, along with Dr. Donna Kulla and Wayne
Wilson, signed a memorandum dated 9 March 2000 stating that
Dr. Lee's disclosures should have been classified
CONFIDENTIAL.
Two additional memoranda were made available to the
Department of Justice regarding Dr. Lee's 1997 disclosures,
but were apparently insufficient to change the view of the
ISS line attorney handling the case. A classified 17 November
1997 memorandum, referencing a conversation with Dr. Twogood,
stated that, contrary to Mr. Schuster's opinion, what Dr. Lee
revealed to the Chinese in 1997 should be considered SECRET.
The memo provides substantial technical detail to make the
case that Mr. Schuster was incorrect in his analysis.
Lawrence Livermore followed up with another classified
memorandum on 21 November 1997, citing the opinions of both
Dr. Twogood and Mr. Jim Brase, who was also knowledgeable of
the Radar Ocean Imaging project. Most importantly, these
memoranda explain, in considerable scientific detail, how the
information Dr. Lee provided to the Chinese differed in ways
that made it classified from what had been on the LLNL Web
site, in Dr. Lee's 1995 article, and in Dr. Twogood's April
1994 House Armed Services Committee testimony.
When questioned at a Subcommittee hearing on 29 March 2000,
Mr. Schuster conceded that Dr. Twogood was the person to
accurately evaluate Dr. Lee's disclosures:
Senator Specter: Dr. Twogood testified that [Dr. Lee] gave
away the heart, the core . . . of the information. Would you
disagree with that?
Mr. Schuster: He was talking about the information in the
program. That is not my program and I don't know that I could
speak to the heart or core of that program.
Senator Specter: So that is beyond the purview of your
expertise or knowledge?
Mr. Schuster: Yes, sir, relative to the program.
Senator Specter: So based on your knowledge, you wouldn't
have a basis for disagreeing with what Dr. Twogood said?
Mr. Schuster: Not in that sense. I couldn't comment.\89\
Mr. Schuster sought to explain his 14 November 1997 memo by
saying that it was his intent to give his assessment to
Captain
[[Page S13827]]
Dewispeleare and not to the Department of Justice.\90\
Mr. Schuster testified that he never talked to anyone in
the Department of Justice and had never been briefed as to
how sensitive Navy and DoD information could be protected by
the Classified Information Procedures Act.\91\ This is in
contrast to the prosecuting attorney, who testified, "We
assured the Navy that we could very confidently protect
any classified information primarily because it was my
analysis that the stuff was less classified, less
dangerous." \92\
On 21 May 1999, the Navy again weighed in on the subject,
writing to the Cox Committee to assert that "the draft
report mischaracterizes the substance and significance of the
disclosure made by Lee during his trip to Beijing in 1997."
\93\ The letter further takes issue with the Cox Committee
Report draft for creating the:
"erroneous impression that the technology Lee discussed
during his 1997 Beijing trip was highly sensitive and
previously unknown, and that his disclosure to the PRC caused
grave harm to the national security, imperiling our submarine
forces. In the considered judgement of the Navy, fortunately
that is not the case." \94\
When questioned about this letter, Mr. Preston had no facts
to support his disagreement with the conclusions of the Cox
Committee Report. He conceded that none of the individuals
who had been involved in responding to the Cox Committee
Report had ever had access to the tapes or transcripts of Dr.
Lee's confession, had made no effort to obtain them, and
therefore did not know the full extent of what he
revealed.\95\
FISA Issues
The loss of electronic surveillance on Dr. Lee occurred at
a critical juncture that may have seriously hampered the
Government's ability to collect important counter-
intelligence information. When the Foreign Intelligence
Surveillance Act (FISA) court order expired on 3 September
1997, it was not renewed. The FBI stated during testimony on
29 March 2000 that the FISA had not been renewed for several
reasons, including concerns within the DoJ's Office of
Intelligence Policy and Review (OIPR) that the information on
Dr. Lee was "too stale," \96\ but OIPR disagrees with the
FBI's characterization of what happened.\97\ In view of the
disagreement as to what actually happened with the FISA
request, it is only possible to conclude that the FBI should
have pursued the matter by making a formal written request.
The Counterintelligence Reform Act, which became law at the
end of the 106th Congress, will prevent future disputes over
who is responsible for the loss of FISA coverage by providing
a mechanism for the Director of the FBI to raise the matter
directly with the Attorney General, who will be required to
reply in writing. In this way, senior officials in both the
FBI and the Department of Justice can be held accountable for
their judgements on important espionage cases.
Additional issues
In addition to the disclosures of classified information
for which Dr. Lee was charged, the Government knew that: (1)
Dr. Lee asked for and received falsified travel documents
from the Chinese, which he presented to the FBI on 3
September 1997,\98\ (2) that his travel expenses in China
were paid for by the Chinese,\99\ (3) that he enlisted the
assistance of Chinese officials associated with the CAEP in
his attempt to deceive the FBI, and (4) that he confessed on
videotape to intentionally passing classified information
during his 1997 trip to China." \100\ The only charge
arising from the events of 1997, however, pertained to Dr.
Lee's false statements on his Post-Travel Questionnaire
submitted to TRW.\101\
It seems apparent that obtaining false documents from a
Chinese official would have warranted a separate count under
18 USC 1001, and would have shown that Dr. Lee's 1997
transgressions extended beyond his lies to his employer. The
Government's failure to highlight Dr. Lee's collusion with
officials from the Chinese institutes where he visited
resulted in an inaccurate portrait of his activities, one
that was significantly less sinister than the reality of his
conduct. Had this case enjoyed better communication within
DoJ and better cooperation from the Navy, and a more
aggressive approach by senior DoJ officials, Dr. Lee should
have been charged or required to plead to at least four
counts: (1) a 794 charge for the 1985 hohlraum revelations,
(2) a 794 charge for the 1997 anti-submarine warfare
revelations, (3) a false statements charge under 18 USC 1001
for his lies on the TRW Post-Travel questionnaire, and (4) a
1001 charge for submitting false travel documents that he got
from the Chinese. Had these charges been filed, there is
little doubt that the extent of Dr. Lee's espionage and
attempted cover-up would have been made known. As it
happened, the full range of Dr. Lee's felonious conduct was
never presented to the Court.
It should be noted that Judge Hatter could have requested
additional information to gain a better understanding of the
case, but he did not. DoE witnesses were present and prepared
to testify in camera at the sentencing hearing regarding Dr.
Lee's 1985 revelations. Had the Judge heard from these expert
witnesses, the harm done by Dr. Lee's significant material
assistance to the PRC nuclear weapons program could have been
made clear to the Court.
recommendations
The single greatest problem the Government faced was its
failure to come to terms with the significance of the
information that Dr. Lee revealed to the PRC, both in 1985
and in 1997. Important were decisions were made without an
adequate understanding of exactly what Dr. Lee had revealed
and what were the consequences of those revelations. To
prevent these problems from happening again, I am introducing
legislation that would require victim agencies to produce a
written "damage statement" which states the level of
classification of the material alleged to have been revealed,
and describes in detail the potential harm to national
security from such revelations. The prosecution team should
consider the "damage statement" before any decision is made
as to whether the case should be taken to trial or a plea
bargain should be offered.
The Department of Justice and the victim agency may wish to
consult informally before the damage assessment is reduced to
writing so that the victim agency will not unwittingly and
incorrectly create Brady \102\ problems and hamper any
ultimate prosecution. The risks of creating potential Brady
material--as might happen if an initial classification
assessment were later reviewed and changed--are obvious, but
the risks of proceeding to a plea without a clear written
statement, made by competent officials, as to the level of
classification of the material in question are even greater.
As noted previously, the Counterintelligence Reform Act,
which became law in December 2000, contains a provision
requiring that the Justice Department provide briefings to
victim agency officials regarding the manner in which the
Classified Information Procedures Act enables a
prosecution to go forward without revealing additional
secrets. Contemporaneous written records, particularly the
Schuster memo, make it clear that the Navy was reluctant
to proceed with a prosecution due to sensitivity about a
public discussion of anti-submarine warfare, but the
process established by CIPA could have ensured that no
sensitive information was disclosed. In the absence of any
risk of disclosing classified information, the Navy's
general unwillingness to have anti-submarine warfare
discussed in a public proceeding should have had no
bearing on the Government's decision to proceed with a
prosecution. The briefing process established by the
Counterintelligence Reform Act will ensure that any
legitimate concerns of the victim agency are addressed,
and that the Justice Department will be able to
distinguish between real security concerns and a general
unwillingness to support a prosecution.
Although I do not intend to introduce legislation requiring
it, I believe that key instructions from Main Justice
(Internal Security Section, etc.) to the U.S. Attorney's
Office with responsibility for prosecuting the case,
including charging authority and plea bargain authority,
should be in writing. These written instructions should be
shared with the FBI and the victim agency so they have an
opportunity for input before any final decisions are made.
There can be no doubt that key officials in this case were
operating under severe misunderstandings. The prosecuting
attorney thought his instructions were that he had to accept
a plea under Sections 793 and 1001 or nothing, while the
Internal Security Section claimed that it was still open to a
possible 794 prosecution. Key officials within the Department
of Defense, up to and including the Secretary, were informed
that if Dr. Lee refused the plea agreement, he would be
prosecuted under Section 794. With so much misunderstanding,
it is surprising that the prosecution did not suffer even
more.
conclusion
This was an important espionage case, yet remarkably little
was documented during the key weeks leading up to the plea
agreement in late 1997. Decision-makers within the Department
of Justice and the Department of Defense clearly have
discretion in executing their responsibilities, and should
not be second-guessed at every turn. However, the need to
strike a balance between protecting the national security--
which can conceivably be achieved by not prosecuting in
certain circumstances--and the equal application of the laws
to ensure justice is done, requires that when judgements are
made for which the reasons are not immediately apparent, the
decision-makers must offer some explanation for their
actions. In the absence of such a documented rationale for
what may be necessary exceptions, the result is what appears
to be arbitrary application of the laws, an outcome which
protects neither the national security nor the law. The
Government's handling of the Dr. Peter Lee case demonstrates
clearly that ongoing, thorough congressional oversight is
essential.
Endnotes
1. Gilbert Cordova, "Affidavit in Support of Complaint,
Arrest Warrant and Search Warrants: United States v. Peter
Hoong-Yee Lee," undated: 16.
2. Robin Staffin, Deputy Assistant Secretary for Research
and Development, Office of Defense Programs, Department of
Energy, Notra Trulock III, Senior Intelligence Officer,
Office of Energy Intelligence; and Joseph S. Mahaley,
Director, Office of Security Affairs, "Impact Statement",
17 February 1998: 2. [DoJ Bates number 00116]
3. Robin Staffin, Deputy Assistant Secretary for Research
and Development, Office of Defense Programs, Department of
Energy; Notra Trulock III, Senior Intelligence Officer,
Office of Energy Intelligence; and Joseph S. Mahaley,
Director, Office of Security
[[Page S13828]]
Affairs, "Impact Statement", 17 February 1998: 2. [DoJ
Bates number 00116]
4. Transcript of Proceedings (first draft), hearing before
the Senate Judiciary Subcommittee on Administrative Oversight
and the Courts regarding the Dr. Peter Lee Case, 29 March
2000: 52-53.
5. Wayne Wilson, John G. Schuster, and Donna Kulla,
"MEMORANDUM FOR THE GENERAL COUNSEL OF THE DEPARTMENT OF
DEFENSE," 9 March 2000: 1.
6. According to Section 1.3 of Executive Order 12958 (April
17, 1995, which superseded Executive Order 12356 of April 6,
1982), information is to be classified as "CONFIDENTIAL" if
"the unauthorized disclosure of which reasonable could be
expected to cause damage to the national security. . . ."
7. Cox Committee Report, Vol. 1, 88.
8. John C. Keeney, Principal Deputy Assistant Attorney
General, Criminal Division, Department of Justice, prepared
statement submitted to the Senate Judiciary Subcommittee on
Administrative Oversight and the Courts Concerning the Peter
Lee Espionage Case," 12 April 2000: 6.
9. See Transcript of Proceedings (first draft), Hearing
before the Senate Judiciary Subcommittee on Administrative
Oversight and the Courts regarding the Dr. Peter Lee Case, 12
April 2000: 14, 38-39 and 87-89.
10. Prosecuting Attorney, Transcript of Interview with
Senator Arlen Specter in Los Angeles, CA, 15 February 2000:
73-74.
11. Donna Kulla, interviewed by Charlie Battaglia in
Washington, DC on January 2000.
12. Bruce Lake, e-mail to Dobie McArthur of January 28,
2000. Lists the following as dates of Peter Lee was employed
by TRW: Original hire date: 06/18/73 to 10/08/76 Rehire date:
04/29/91 to 12/08/97 Retired eff.: 12/30/97. See also House
of Representatives, Report of the United States House of
Representatives Select Committee on U.S. National Security
and Military/Commercial Concerns with the People's Republic
of China, May 25, 1999, Vol. 1, 87-88. [Hereinafter, Cox
Committee Report]
13. Gilbert Cordova, Declaration in the Matter of United
States vs. Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27
February 1998: 13. [DoJ Bates number 000085]
14. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 13-
14 [DoJ Bates number 000085-000086]
15. Reporter's Transcript of Proceedings, United States of
America, vs. Peter Lee, 26 March 1998: 20. [DoJ Bates number
000023]
16. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 13-
14. [DoJ Bates number 000085-000086]
17. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 2.
[DoJ Bates number 000074]
18. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 16.
[DoJ Bates number 000088]
19. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 14.
[DoJ Bates number 000086]
20. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 14-
15. [DoJ Bates number 000086-000087]
21. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 7.
[DoJ Bates number 000079]
22. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 7.
[DoJ Bates number 000079]
23. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 16-
17. [DoJ Bates number 000088-000089]
24. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 1.
[DoJ Bates number 000089]
25. See Transcript of Proceedings (first draft), Hearing
before the Senate Judiciary Subcommittee on Administrative
Oversight and the Courts regarding the Dr. Peter Lee Case, 29
March 2000: 39.
26. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 10.
[DoJ Bates number 000082]
27. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 10-
11. [DoJ Bates number 000082-000083]
28. Cordova, Declaration in the Manner of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 11-
12 [DoJ Bates number 000083-000084]
29. Cordova, Declaration in the Manner of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181th-TJH, 27 February 1998:
11-12 [DoJ Bates number 000083-000084]
30. Cordova, Declaration in the Manner of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 12.
[DoJ Bates number 000084]
31. Cordova, Declaration in the Manner of United States vs.
Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27 February 1998: 13.
[DoJ Bates number 000085] See also Government's Response to
Defendant's Position with respect to Sentencing Factors;
Declarations of [Prosecuting Attorney], 23 March 1998: 5.
[DoJ Bates number 000069]
32. INFORMATION, [18 USC 793 (d): Attempt to Communicate
National Defense Information to A Person Not Entitled To
Receive It; 18 USC 1001: False Statement to Government
Agency], undated, 1-3 [DoJ Bates number 000001-000003]
33. Nora M. Manella, Physicist Pleads Guilty to
Transmitting Classified Defense Information to
Representatives of the People's Republic of China, News
Release, 8 December 1997: 1. [DoJ Bates number 000096]
34. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 90.
35. Nora M. Manella, Nuclear Physicist Sentenced to One
Year in Custody for Passing Classified Defense Information to
Scientists of the People's Republic of China, News Release,
26 March 1998: 1. [DoJ Bates number 000098]
36. See, for example, GOVERNMENT'S EX PARTE APPLICATION FOR
ORDER UNSEALING PLEA AGREEMENT, 22 October 1999 [DoJ Bates
number 00235-00240], and GOVERNMENT'S EX PARTE APPLICATION
FOR ORDERING UNSEALING GOVERNMENT'S SENTENCING POSITION AND
GOVERNMENT'S FILING OF DEPARTMENT OF ENERGY "Impact
Statement", 25 October 1999 [DoJ Bates numbers 00252-00260]
37. Robin Staffin, Deputy Assistant Secretary for Research
and Development, Office of Defense Programs, Department of
Energy; Notra Trulock III, Senior Intelligence Officer,
Office of Energy Intelligence; and Joseph S. Mahaley,
Director, Office of Security Affairs, "Impact Statement",
17 February 1998: 2. [DoJ Bates number 00116]
38. Robin Staffin, Deputy Assistant Secretary for Research
and Development, Office of Defense Programs, Department of
Energy; Notra Trulock III, Senior Intelligence Officer,
Office of Energy Intelligence; and Joseph S. Mahaley,
Director, Office of Security Affairs, "Impact Statement",
17 February 1998: 2. [DoJ Bates number 00116]
39. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Court Hearing regarding the Dr. Peter Lee Case, 5 April 2000:
53.
40. ISS Line Attorney, Prepared Statement submitted to the
Senate Judiciary Subcommittee on Administrative Oversight and
the Courts Concerning the Peter Lee Espionage Case, 12 April
2000: 7.
41. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearings regarding the Dr. Peter Lee Case, 29 March
2000: 37.
42. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 29 March
2000: 38.
43. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 29 March
2000: 39.
44. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 5 April
2000: 66.
45. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 67.
46. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 67-68.
47. See the opinion of Mr. Justice Reed, in Gorin v. United
States, 312 U.S. 19; 61 S. Ct. 429, 1941 U.S. Lexis 1033; 85
L. Ed 488: at 14-15.
48. See the opinion of Mr. Justice Reed, in Gorin v. United
States, 312 U.S. 19; 61 S. Ct. 429; 1941 U.S. Lexis 1033; 85
Ed. 488; at 5.
49. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 68.
50. See the opinion of Circuit Judge L. Hand, in United
States v. Heine, 151 F.2nd 813; 1945 U.S. App. Lexis 3049: at
8.
51. Reporter's Transcript or Proceedings, United States of
America, vs. Peter Lee, 26 March 1998: 14. [DOJ Bates number
000017]
52. Reporter's Transcript of Proceedings, United States of
America, vs. Peter Lee, 26 March 1998: 25. [DOJ Bates number
000028]. See also Cordova, Declaration in the Matter of
United States vs. Peter Hoong-Yee Lee CR No. 97-1181-TJH, 27
February 1998: 18. [DOJ Bates number 000090]
53. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 29.
54. Reporters Transcript of Proceedings, United States of
America, vs. Peter Lee, 26 March 1998: 21-22. [DOJ Bates
number 000024-000025]
55. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 5 April
2000: 15. See also Transcript of Proceedings (first draft),
"Senate Judiciary Subcommittee on Administrative Oversight
and the Courts Hearing regarding the Dr. Peter Lee Case, 12
April 2000: 73.
56. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 34-35.
57. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing
[[Page S13829]]
regarding the Dr. Peter Lee Case, 12 April 2000: 36.
58. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 86.
59. Prosecuting Attorney Transcript of Interview with
Senator Arlen Specter in Los Angeles, CA, 15 February 2000:
70-71. See also, Transcript of Proceedings (first draft),
"Senate Judiciary Subcommittee on Administrative Oversight
and the Courts Hearing regarding the Dr. Peter Lee Case, 5
April 2000: 41,48.
60. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 90.
61. John C. Keeney, Principal Deputy Assistant Attorney
General, Criminal Division, Department of Justice, prepared
statement submitted to the Senate Judiciary Subcommittee on
Administrative Oversight and the Courts Concerning the Peter
Lee Espionage Case," 12 April 2000: 6.
62. John C. Keeney, Principal Deputy Assistant Attorney
General, Criminal Division, Department of Justice, prepared
statement submitted to the Senate Judiciary Subcommittee on
Administrative Oversight and the Courts Concerning the Peter
Lee Espionage Case," 12 April 2000: 6.
63. Prosecuting Attorney, "Government's Position With
Respect to Sentencing Factors: Declarations of [Prosecuting
Attorney]," 27 February 1998: 7.
64. Department of Energy, "Impact Statement," 17 February
1998: 3: [DoJ Bates number 00117]
65. Gilbert Cordova, "Declaration of Gilbert R. Cordova,"
23 March 1998; 2.
66. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 61.
67. Prosecuting Attorney, Transcript of Interview with
Senator Arlen Specter in Los Angeles, CA, 15 February 2000:
72.
68. Prosecuting Attorney, Transcript of Interview with
Senator Arlen Specter in Los Angeles, CA, 15 February 2000:
76.
69. Prosecuting Attorney, Transcript of Interview with
Senator Arlen Specter in Los Angeles, CA, 15 February 2000:
72.
70. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 29 March
2000: 87-88.
71. SSA, National Security Law Unit, "Royal Tourist," e-
mail to FBIHQ Supervisory Special Agent, 25 November 1997: 1.
72. Dan Bauer, Colonel, US Army, "Possible Espionage
Arrest Update (U)--INFORMATION MEMORANDUM," MEMORANDUM FOR
THE SECRETARY OF DEFENSE, DEPUTY SECRETARY OF DEFENSE, 26
November 1997: 1.
73. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 92-93.
74. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 40.
75. Jon P. Jennings, letter to Senator Orrin G. Hatch, 18
April 2000: 2.
76. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 93-94.
77. Cox Committee Report, Vol. 1, 88.
78. Defense Criminal Investigative Service, "Report of
Investigation," 11 September 1998: 2. [DoD Bates number
D001003]
79. Transcript of Proceedings (first draft), Hearing before
the Senate Judiciary Subcommittee on Administrative Oversight
and the Courts regarding the Dr. Peter Lee Case, 29 March
2000: 51.
80. Transcript of Proceedings (first draft), Hearing before
the Senate Judiciary Subcommittee on Administrative Oversight
and the Courts regarding the Dr. Peter Lee Case, 29 March
2000: 52-53.
81. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 31.
82. Transcript of Proceedings (first draft), Hearing before
the Senate Judiciary Subcommittee on Administrative Oversight
and the Courts regarding the Dr. Peter Lee Case, 12 April
2000: 58.
83. Transcript of Proceedings (first draft), Hearing before
the Senate Judiciary Subcommittee on Administrative Oversight
and the Courts regarding the Dr. Peter Lee Case, 12 April
2000: 58-59.
84. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 32-33.
85. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 34.
86. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 12 April
2000: 34.
87. See Al Heiman, fax cover sheet of November 10, 1997 to
FBI Special Agent Dave LeSueur, and Dr. Richard Twogood,
memorandum to Bill Cleveland and Al Heiman, "Classification
Guidelines", November 10, 1997.
88. J.G. Schuster, Jr., "REQUEST FOR CLASSIFICATION
GUIDANCE," 14 November 1997.
89. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 29 March
2000: 100.
90. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 29 March
2000: 105-107.
91. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 29 March
2000: 106-107.
92. Prosecuting Attorney, Transcript of Interview with
Senator Arlen Specter in Los Angeles, CA, 15 February 2000:
63.
93 Stephen Preston, General Counsel of the Navy, letter to
the Cox Committee, 21 May 1999: 1.
94 Stephen Preston, General Counsel of the Navy, letter to
the Cox Committee, 21 May 1999: 2.
95. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 29 March
2000: 79.
96. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 29 March
2000: 24-25.
97. Transcript of Proceedings (first draft), "Senate
Judiciary Subcommittee on Administrative Oversight and the
Courts Hearing regarding the Dr. Peter Lee Case, 5 April
2000: 11.
98. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee CR No. 97 1181-TJH, 27 February 1998: 12.
[DoJ Bates number 000084]
99. Cordova, Declaration in the Matter of United States vs.
Peter Hoong-Yee Lee CR No. 97 1181-TJH, 27 February 1998: 7.
[DoJ Bates number 000079]
101. INFORMATION, United States of America v. Peter Lee,
filed 5 December 1997:3. [DoJ Bates number 000003)
102. See Brady v. Maryland 373 U.S. 83 (1963), in which the
Supreme Court declared that, regardless of the good faith or
bad faith of the prosecution, the suppression of evidence
favorable to the accused violated due process where the
evidence is material to either guilt or punishment. This
court ruling imposes an obligation on the Government to
provide to the defense any evidence or information in its
possession which could be favorable to the accused.
Mr. SPECTER. Mr. President, I ask unanimous consent that two letters
from the Justice Department be printed in the Record.
There being no objection, the letters were ordered to be printed in
the Record, as follows:
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, DC, December 19, 2001.
Hon. Arlen Specter,
U.S. Senate, Washington, DC.
Dear Senator Specter: We have no objection on national
security grounds to publication of your final report on the
Wen Ho Lee investigation. We have not reviewed the report for
the accuracy of the facts or conclusions reflected therein.
Sincerely,
John E. Collingwood,
Assistant Director, Officer of Public and Congressional
Affairs.
____
U.S. Department of Justice,
Federal Bureau of Investigation,
Washington, DC, December 20, 2001.
Hon Arlen Specter,
U.S. Senate, Washington, DC.
Dear Senator Specter: We have no objection on national
security grounds to publication of your final report on the
Peter lee investigation. We have not reviewed the report for
the accuracy of the facts or conclusions reflected therein.
Sincerely,
John E. Collingwood,
Assistant Director, Office of Public and Congressional
Affairs.
Mr. SPECTER. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. One minute.
Mr. SPECTER. As promised, I yield back the remainder of my time.
