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Secrecy & Government Bulletin

Issue Number 78
May 1999


Chinese Espionage in Perspective

The scandal over allegations of Chinese espionage against U.S. nuclear weapons laboratories will probably have a momentous impact on future secrecy and security policies. So it is important to see how those allegations have been exaggerated, exploited and misconstrued.

The actions of Los Alamos scientist Wen Ho Lee "jeopardized secrets to virtually the entire United States nuclear arsenal," according to the New York Times. China stole "the crown jewels of our nuclear arsenal," said Rep. Christopher Cox, chairman of a select committee on Chinese espionage whose declassified report will be released this month. The situation "confirms my worst fears," said Senator Richard Shelby, chairman of the Senate Intelligence Committee.

This fog of vague, ominous warnings was briefly dispelled by the report of an expert panel assembled by the CIA to assess the role of U.S. information in the development of Chinese nuclear weapons. The panel, chaired by Admiral David Jeremiah, found that espionage against the United States was one of several factors that have contributed to the Chinese nuclear program over the years, but not necessarily the most important one.

"China's technical advances have been made on the basis of classified and unclassified information derived from espionage, contact with US and other countries' scientists, conferences and publications, unauthorized media disclosures, declassified US weapons information, and Chinese indigenous development," according to the CIA panel report. "The relative contribution of each cannot be determined."

In other words, "unauthorized media disclosures" and routine access to unclassified or declassified information may have had more of an impact on the Chinese nuclear program than did espionage against the U.S.

Whatever the case may be, the decisive bottom line is that "the aggressive Chinese collection effort has not resulted in any apparent modernization of their deployed strategic force or any new nuclear weapons development," the CIA Jeremiah panel found. This is remarkable, considering that the alleged theft of nuclear secrets concerning the W88 warhead took place more than ten years ago!

And to put matters in further perspective, "China has had the technical capability to develop a multiple independently targetable reentry vehicle (MIRV) system for its large, currently deployed ICBM for many years, but has not done so."

Some argue that the glacial pace of Chinese modernization may itself be part of a fiendishly clever plot: "China's military modernization is deceptive and measured in order to avoid arousing international attention," wrote Bill Gertz of the Washington Times in his new book Betrayal (discussed below). Adopting a measured pace of modernization, however, tends to squander the advantage gained by espionage.

A copy of the unclassified Jeremiah panel assessment, released on April 21, is posted at www.fas.org/sgp/news/dci042199.html.

The New York Times reported on April 28 that Wen Ho Lee had improperly transferred classified "legacy codes" to an unclassified computer system, thereby "compromising virtually every nuclear weapon in the United States nuclear arsenal." But ‘compromise' seems a poor choice of words here. It is not clear that the codes themselves were acquired by the Chinese, much less that the security or potency of "every weapon in the United States nuclear arsenal" was in any way reduced. Nor did the Times pause to consider why the codes are termed "legacy" codes.

"In computer talk, ‘legacy' means ‘old," observed John Pike of FAS. Vernon Loeb of the Washington Post reported on April 30 that "The legacy codes Lee transferred from Los Alamos's classified network to its unclassified system are an older generation of programs ... that produce two-dimensional models of a nuclear detonation" -- not the more sophisticated three-dimensional models. (However, "Two-dimensional doesn't necessarily bespeak obsolescence," one official cautioned.)

Meanwhile, the U.S. Attorney in charge of the case rebuked government officials and news reporters for declaring that an arrest of Wen Ho Lee was imminent. "To date, Dr. Lee and his counsel are cooperating with the FBI and the Department of Justice," John J. Kelly told the Los Angeles Times (4/30/99). This is highly unusual behavior for an unindicted espionage suspect.

There is obviously plenty of room for improvement in security procedures at the national laboratories and elsewhere. A recent safeguards and security review found that security was "marginal" at three DOE facilities.

Under the best of circumstances, however, classification is only a temporary fix when it comes to the protection of technological secrets. It is in the nature of things that objective secrets-- scientific discoveries and technological processes-- cannot be indefinitely protected, but will be acquired over time by a determined and resourceful adversary.

It is already true that "Access to classified information is not necessary for a potential proliferator to construct a nuclear weapon," according to a 1995 report of the National Research Council.

More generally, "It is unlikely that classified information will remain secure for periods as long as five years," according to a classic 1970 Defense Science Board report on secrecy, "and it is more reasonable to assume that it will become known to others in periods as short as one year."


The Pentagon vs. The Constitution

Can a provision of the U.S. Constitution be nullified by an executive order? The textbooks say no. The Pentagon is saying yes.

At issue is the question of whether or not the Pentagon must acknowledge the true size of its budget. The published appropriation figure is false, since it includes unacknowledged funding for the Central Intelligence Agency.

This practice of deceptive reporting seems to violate Article I of the Constitution, which requires that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time."

The concealment of CIA funding within the Pentagon budget is believed to be the sole instance where funding for one agency is concealed within another independent agency. Correcting this one anomaly would make it possible to "get right" with the Constitution.

Yet a Freedom of Information Act request from the Federation of American Scientists for an accurate statement of Defense Department expenditures was denied by the Pentagon, on grounds that it is properly classified by executive order.

The distortion of the publicly reported budget is a relatively new phenomenon, although merely confidential spending has always been an option. "From the very start," wrote Louis Fisher, a constitutional scholar at the Congressional Research Service, "it was the practice of Congress to provide the President with a fund over which he had complete control." (L. Fisher, Presidential Spending Power, Princeton University Press, 1975). Thus, in 1790, Congress provided President Washington with a $40,000 account "for such expenditures as he may think it advisable not to specify." While the purposes of such funds remained confidential with congressional consent, they were overtly appropriated without any deception of the public.

In contrast, public deception in budgetary matters became standard practice during the cold war. Instead of the openly appropriated contingency funds available to President Washington or even the opaque Manhattan Project line items hidden in the Army budget (where they arguably belonged), funding for the Central Intelligence Agency became both secret and deceptive. Because secret CIA funding was concealed in the unclassified accounts of other agencies, it rendered those accounts deceptive and false. It is a measure of the impact of the cold war on American governance that we have come to take this deception for granted.

A previous effort to directly challenge secret CIA spending failed when the Supreme Court found in 1974 that a mere taxpayer lacked "standing" to raise the issue (U.S. v. Richardson). The question of whether or not secret spending is unconstitutional was left unanswered. As the DC Circuit Court of Appeals wrote a few years later, "there may be illegal or unconstitutional actions which will go unchallenged in a federal court due to the lack of a proper party to sue."

FAS is attempting to break this impasse with a FOIA request that seeks not the secret amount of CIA spending but the "true" amount of defense spending. The Pentagon denied the request on April 13, claiming that the information was classified under executive order 12958. But an executive order should not be able to override the constitutional requirement for a regular statement and account of the expenditures of all public money. This creates an opening to argue that the true defense budget is not "properly classified" under the executive order, an argument that any FOIA requester has the standing to present.

"It's a novel legal theory," said Kate Martin of the FAS approach. Ms. Martin, director of the Center for National Security Studies, successfully represented FAS in winning disclosure of the total intelligence budget in 1997 and 1998.

The Pentagon's denial of the FAS request was promptly appealed and will lead in good time to a court challenge.


Patriotic Leaks

If the President of the United States betrays his country, then it follows that those who oppose him by leaking highly classified documents must be... patriots.

That is the audacious claim of Bill Gertz in his new book Betrayal: How the Clinton Administration Undermined National Security (Regnery Publishing, Inc., 1999). Mr. Gertz is a national security reporter for the Washington Times who during much of the past decade has been a leading journalistic conduit for transmitting classified information into the public domain.

"The [Clinton] administration's policies have endangered not only the United States, but the peace and security of the entire world," he writes. "This betrayal of American national security so angered some intelligence, defense, and foreign policy officials that they responded in the only way they knew how: by disclosing to the press some of the nation's most secret intelligence."

In an astonishing appendix to his book, Mr. Gertz presents over fifty pages of highly classified documents. Anyone who has never seen a currently classified report marked "TOP SECRET UMBRA NOFORN ORCON GAMMA" can now find a couple of such items in Mr. Gertz' book, including a CIA report on "Prospects for Unsanctioned Use of Russian Nuclear Weapons." Also included are the complete Secret text of Presidential Decision Directive 17 on "U.S. Policy on Ballistic Missile Defenses and the Future of the ABM Treaty," and several other classified gems.

The rest of Mr. Gertz' book boils down to two essential claims, traced through numerous unhappy episodes: (1) the recurring unwillingness on the part of Administration spokesmen to publicly embrace a worst-case interpretation of foreign threats-- weaknesses in Russian nuclear command and control, North Korean nuclear proliferation, etc.-- constitutes deception of the American people, says Mr. Gertz, and probably reflects some kind of financial corruption ("In the Clinton Administration, all national security policies were subordinated to business interests"); and (2) anything short of the most forceful, direct and public confrontation of U.S. adversaries amounts to appeasement. Mr. Gertz also seems to believe that the primary obstacle to an effective national missile defense system is ideological, not technological.

In any case, what makes the book extraordinary is its wholesale replication of classified documents-- which goes beyond even what Gertz has previously published in the Washington Times-- and the defiant spirit with which the leakers are praised.

"The fact that these unsung heroes have jeopardized their careers to expose wrongdoing only underlines the great danger to our country brought about by the Clinton Administration," writes Mr. Gertz. "I regard them as both dissidents and patriots."

But these right-wing Ellsbergs, unlike the original, remain anonymous and unaccountable. And as a reporter for a politically conservative newspaper, Mr. Gertz himself is effectively insulated from any criticism for his repeated disclosures of highly classified information. If a left-wing publication were to engage in a similar pattern of activity, one can safely assume that it would be vilified by several of the current and former government officials who contributed congratulatory blurbs for Mr. Gertz' book jacket.


Bulletins


Secrecy & Government Bulletin is written by Steven Aftergood and published by the Federation of American Scientists.

The FAS Project on Government Secrecy is supported by grants from the John S. and James L. Knight Foundation, the Rockefeller Family Fund, and the HKH Foundation.




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