Statement for the Record
of Attorney General Janet Reno
FBI Director Louis J. Freeh
Investigation and Prosecution of Dr. Wen Ho Lee
before a joint hearing of
the Senate Judiciary Committee
Senate Select Committee on Intelligence
September 26, 2000
Chronology of Significant Events Between 12/23/98 and 2/10/99
Nuclear Weapons Restricted Data Downloaded by Dr. Lee onto Portable Tape
Steps Required to Down-Partition, Download, and Create Tapes
Good morning, Chairman Hatch, Chairman Shelby, Senator Leahy, Senator Bryan and members of the Committees. We thank you for the opportunity to appear today to discuss the investigation and prosecution of Dr. Wen Ho Lee.
At the outset, we want to express our appreciation to the Committees for the manner in which you have conducted your important oversight. This case has raised extraordinarily sensitive national security issues, and you have consistently worked with us to ensure that these issues are addressed thoughtfully and responsibly. In particular, we would like to thank Senators Hatch and Specter for delaying scheduled hearings last year on the Wen Ho Lee case. It was a difficult decision, but that postponement was in the national interest.
Frankly, we have serious concerns about testifying here today. Not because we are reluctant to answer your questions. To the contrary, we remain convinced that we made the right decisions, for the right reasons, at the right time. Our concerns arise instead out of fear that we may say something in this room, or that subsequent communications will be made to Dr. Lee's attorneys, that will impair our ability to find out what happened to the missing tapes, why they were originally made by Dr. Lee , why subsequent copies were made, and with whom, if anyone, those tapes, or the data on them, were shared. Our goal is to provide you and the American people as much information as possible, without impairing our ability to get answers to these vital questions. We hope that you agree that every other consideration pales in comparison to our ability to achieve these objectives. We begin by emphasizing that Dr. Wen Ho Lee has been convicted of a very serious crime. He stood before a federal court judge, admitted his wrongdoing, and pleaded guilty to a felony. Contrary to some reports, there is nothing minor or insignificant about that crime. Dr. Lee was entrusted with our nation's most sensitive nuclear weapons design and testing secrets, and he has publicly admitted violating that trust in a highly dangerous way.
As you know, Dr. Lee worked for the X Division at Los Alamos National Laboratory. The X Division is responsible for the research, design and development of thermonuclear weapons, and requires the highest level of security of any division at Los Alamos. Dr. Lee pleaded guilty to illegally transferring Secret Restricted Data from the classified computer system within X Division, and then downloading this information onto a portable computer tape, at a location that he knew was unsecure.
"Restricted Data" refers to information relating to the design, manufacture or utilization of atomic weapons that has not been authorized for release by the Department of Energy. The Restricted Data that Dr. Lee downloaded onto ten portable computer tapes included the electronic blueprints of the exact dimensions and geometry of this nation's nuclear weapons.
The crime to which Dr. Lee pleaded guilty was part of a much larger series of related crimes that were charged in the grand jury's indictment. While some have now questioned our decision to charge all of those related crimes in the indictment, let us say as emphatically and as forcefully as possible -- the Department of Justice and the FBI stand by each and every one of the 59 counts in the indictment of Dr. Lee. Each of those counts could be proven in December 1999, and each of them could be proven today. The facts of this case have not changed, although as we explain below, recent rulings by the trial court posed serious obstacles to proving those facts without revealing nuclear secrets in open court.
But while the facts of the case had not changed, there was one key change that made this plea possible: Dr. Lee's willingness finally to come forward, to admit his criminal conduct, and to agree to cooperate. This is the result we had sought from Dr. Lee from before the indictment was returned.
It is critical to understand that Dr. Lee's conduct was not inadvertent, it was not careless, and it was not innocent. Over a period of years, Dr. Lee used an elaborate scheme to move the equivalent of 400,000 pages of extremely sensitive nuclear weapons files from a secure part of the Los Alamos computer system to an unclassified, unsecure part of the system, which could be accessed from outside of Los Alamos - indeed, from anywhere in the world. Dr. Lee then downloaded those files onto portable computer tapes and still later made additional copies of some or all of those tapes. In order to achieve his ends, Dr. Lee had to override default mechanisms that were designed to prevent any accidental or inadvertent movement of those files. His downloading process consumed nearly 40 hours over 70 different days.
Nor was this all. Dr. Lee carefully and methodically removed classification markings from documents; he attempted repeatedly to enter secure areas of Los Alamos after his access had been revoked -- including one attempt at 3:30 a.m. on Christmas Eve; and he deleted files in an attempt to cover his tracks before he was caught.
Dr. Lee created his own secret, portable, personal electronic library of this nation's nuclear weapons secrets. At the very least, in doing so, he placed these secrets at extraordinary risk. And make no mistake about the scope of this offense, and the danger it presents to our nation's security. As an expert from Los Alamos testified in this case, the material downloaded and copied by Dr. Lee represented the complete nuclear weapons design capability of Los Alamos at that time -- approximately 50 years of nuclear weapons development, at the expense of hundreds of billions of dollars. Quoting from Dr. Younger's testimony:
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. They enable the possessor to design the only objects that could result in the military defeat of America's conventional forces. The only threat, for example, to our carrier battle groups. They represent the gravest possible security risk to the United States, what the President and most other Presidents have described as the supreme national interest of the United States, the supreme national interest.
Before Dr. Lee created these tapes, only two sites in the world held this complete design portfolio: the secure computer inside the highest security division at Los Alamos and the secure computer system inside the highest-security division of another of our national laboratories.
Recently there has been substantial publicity suggesting that this information may not be as sensitive or classified as the government first represented. Prior to the decision to seek an indictment of Dr. Lee, there was considerable discussion among DOE, DOJ, and the FBI concerning the sensitivity, significance and classification of the information Dr. Lee had placed on the missing tapes. At the time, DOJ and FBI were informed by DOE that this was significant and sensitive nuclear weapon design and testing information that was classified at the Secret Restricted Data level. In fact, there was a final meeting at the National Security Council precisely on this point, in order to ensure that in pursuing a prosecution we would not put this sensitive information at further risk. The sensitivity, significance, and classification of this information has not changed. The current assessment of the classification and sensitivity of the design and testing information is the same as it was when the meeting with the leadership of government occurred at the National Security Council.
Many have recently asked, "If Dr. Lee's conduct was so bad, why did the government negotiate a plea agreement and agree to release him?" That is an understandable question, but it has a simple answer. The Department of Justice and the FBI concluded that this guilty plea, coupled with Lee's agreement to submit to questioning under oath and to a polygraph, was our best opportunity to protect the national security by finding out what happened to the seven missing tapes, as well as to the additional copies of the tapes that Dr. Lee has now admitted to having made.
This is not to say that it was an easy call. This was an extraordinarily difficult decision to make. However, it is important to keep in mind that this is not an ordinary criminal matter. It never was. This is a national security matter of paramount importance. At least seven -- and possibly 14 or more -- tapes containing vast amounts of our nation's nuclear secrets remain unaccounted for. This is not rhetoric; it is a simple, frightening fact.
From the moment we learned last year that our nation's nuclear secrets were on missing portable tapes, we have had a central goal in this matter: to find out what happened to the tapes. This was not just an FBI goal, or a Department of Justice goal, or a Department of Energy goal -- it was the goal of the entire national security leadership of our government. But, in pursuing that goal, we were always mindful of the need to protect constitutional rights.
Before any charges were brought against Dr. Lee, this matter was analyzed by the highest levels of our government. Working together, we carefully considered the substantial risks to our national security of proceeding with a public prosecution of Dr. Lee, counterbalanced against the risks of foregoing such a prosecution.
The decision to prosecute Dr. Lee was made only after repeated attempts to gain his cooperation before indictment. The Government repeatedly told Dr. Lee and his attorneys that, in order to avoid indictment, Dr. Lee would have to provide a full and credible explanation - an explanation we could verify - establishing the complete chain of custody of the tapes from the moment he created them. Those efforts repeatedly failed because Dr. Lee attempted to impose unacceptable conditions upon his cooperation. Thus, it is not true, as some have suggested, that the Government could have had the same plea prior to indictment it has obtained now. To the contrary, the decision to prosecute was reached only after we had concluded that there was no realistic hope of obtaining a reasonable and credible cooperation agreement - one that would provide the investigative means of determining exactly why Dr. Lee did what he did.
Once the charges against Dr. Lee had been brought, it was still our hope that we could reach a cooperation agreement. Serious discussions about a possible plea agreement began during the late summer, when Judge Parker - immediately after taking over the case - strongly encouraged the parties to engage in mediation and enlisted Senior Judge Leavy as a mediator. Although mediation is most unusual in a criminal case, the government entered into the discussions in good faith, and worked hard to reach an acceptable solution. After difficult negotiations, the prosecutors handling the case consulted Washington and presented possible plea offers. Ultimately a consensus was achieved within the Department of Justice and a plea agreement was reached. We - the Attorney General and the Director of the FBI - are in total agreement on this decision.
It bears repeating that the government made this agreement for one overarching reason: to find out what happened to the missing tapes. There were other factors that figured in the determination of whether a plea agreement at this time made sense, and we do not intend to gloss over them. They included the following:
- First, as noted above, Judge Parker had, upon taking over the case, strongly suggested that this case was an appropriate one for mediation. In and of itself, this was a signal that the new trial judge viewed this case in a far different manner than his predecessor.
- Second, and even more critically, Judge Parker then ruled in favor of the defendant in initial proceedings under the Classified Information Procedures Act. It appeared from this ruling that defendant would succeed in his attempt at graymail. Although the prosecutors were still litigating those CIPA issues, the Judge's reasoning left little room to expect that the Government would prevail. The court's ruling would have exposed extremely sensitive nuclear weapons information during a public trial, crossing an exposure threshold we had already determined posed an unacceptable risk. We note, in this regard, that while Judge Parker's ruling was a significant factor in our decision whether to enter into the plea agreement, that ruling in no way undermined our view that we were right to bring this indictment in the first place. Indeed, proceedings under CIPA, which can be held only after indictment and before trial, are the only means for the Government to determine precisely how much sensitive information it will have to reveal publicly at trial, and whether such disclosure would create an unacceptable risk.
- Third, Judge Parker had ruled after the August detention hearing that Dr. Lee should be released from his pretrial confinement. While this ruling was stayed by the 10th Circuit Court of Appeals, which was scheduled to hear the bail matter de novo, we faced the very real prospect that Dr. Lee would soon be released in any event, under conditions that we had pointed out to the Court were inadequate to prevent Dr. Lee's communications with others. Thus, those who question how the Government could argue that Dr. Lee should be confined pretrial one day, and agree to his release the next, misunderstand the situation as it existed immediately before the plea: the Government's arguments against release already had been rejected by the trial court.
- Fourth, as Judge Parker's August detention hearing also made clear, the trial threatened to become a battle of the experts.' Indeed, notwithstanding that defendant's experts conceded that they had not actually reviewed the tapes - and notwithstanding the weaknesses in their positions that were explored in the closed portion of the hearing - the Court still gave weight to their testimony. Furthermore, it was clear from the Court's rulings that it would have been necessary to disclose still more classified information at trial in order to disprove defense claims that the material in issue - which again, they had not reviewed - was already in the public domain.
- Fifth, the loss of the NEST hard drives at LANL, and the ensuing investigation, posed the possibility of further damage to the Government's case, since it might have suggested that LANL security was lax - even though in fact there was no comparability or connection between the two matters.
- Finally, the FBI's lead case agent had had to correct erroneous testimony from the initial detention hearing. The agent acknowledged that he had misstated what one of Dr. Lee's colleagues had told the FBI about Dr. Lee's explanation of the purpose for which he wanted to use that colleague's computer. The agent also volunteered that he overstated certain evidence relating to whether Dr. Lee had sent letters to find employment outside Los Alamos - although there is in fact other evidence that shows that Dr. Lee did send such letters, as the agent originally had testified. With regard to the agent's first misstatement, while the agent stated that he had made an honest mistake as he tried to make the point that Dr. Lee had not disclosed that his true purpose was to download classified nuclear weapons data onto portable tapes, this was a serious matter. It prompted detailed reviews of his testimony by the Agent's supervisors and the U.S. Attorney's Office. While we do not believe this error significantly undercut the overall evidence against Dr. Lee, it did affect the agent's credibility and thereby damaged the prosecution. His supervisor believed that. The prosecutors believed that. And those of us in Washington faced with the difficult decision whether to enter into the plea believed it as well. Probably more damaging, it created an unmistakable public perception that the government's case against Dr. Lee was "crumbling." That perception was erroneous then and we believe it remains erroneous now. Nonetheless, it was a factor that we had no choice but to consider.
Yet the decision to enter into the plea agreement was still a difficult one, for despite these setbacks, the case against Dr. Lee remained strong. It should be pointed out that while there were many charges in the indictment because of Dr. Lee's many acts of improper conduct, all of the charges flowed from a common scheme: the improper transfer and downloading of the classified Restricted Data. Long before he was ever charged, Dr. Lee through his attorneys, after initially denying the existence of the tapes, admitted that he had made the improper transfers; he was simply denying that he had the required criminal intent when he did it. Under the circumstances, notwithstanding Judge Parker's adverse rulings and the other problems, we remained confident about the prospects for conviction on all counts of the indictment - assuming, of course, that CIPA considerations did not make it impossible to go to trial.
Even a conviction on each and every count, however, would not have guaranteed the cooperation of Dr. Lee. Dr. Lee's truthful and full cooperation was the one thing the government most needed to protect the national security of the United States.
Our paramount concern remained the same: would this plea agreement assist us in finding out what happened to the missing tapes? In the end, we - the Attorney General and the Director of the FBI - agreed that accepting the plea agreement was the correct national security decision. As we stated earlier, the unique national security interests of this case outweigh the criminal prosecution interests.
As you already know from press accounts, the plea agreement was jeopardized near the end of the negotiations. As you may recall, the plea proceeding was rescheduled at the last moment and the parties went back to their negotiations with the assistance of the mediator judge. This delay has been the subject of considerable speculation in the media. In fact, the delay rests with Dr. Lee, who made a startling revelation just before the plea proceeding was supposed to begin. For the very first time, Dr. Lee revealed that he had made copies of the tapes he had illegally created. This was an enormously significant development. What it meant was that instead of seven missing tapes, there could be 14 or more.
As you know, the plea agreement calls for Dr. Lee's complete and truthful cooperation. We are hopeful that he will now be completely truthful and forthcoming. The plea agreement - which requires Dr. Lee's sworn testimony, and requires him to submit to a polygraph - gives him powerful incentives to be completely truthful. If he is not, the plea agreement provides that he may be prosecuted. It should be noted, as well, that Dr. Lee must continue to respond to the Government's inquiries for up to a year; and he cannot travel outside the country during that time period without the permission of the Mediator Judge.
Before turning to a detailed description of the evidence and unclassified information about this case, we want to discuss two additional matters that have received considerable attention in the press: the conditions of Dr. Lee's confinement and the allegations relating to selective prosecution or racial profiling.
With respect to Dr. Lee's incarceration, the government properly moved for pretrial detention under the applicable federal statutes. After a three-day hearing in which several witnesses testified at length about the extraordinary danger presented by the missing tapes, Judge Parker appropriately concluded that Dr. Lee should be held in jail pending his trial. A three judge panel of the Tenth Circuit Court of Appeals upheld that ruling.
The Department of Justice, the Department of Energy, and the FBI also believed strongly that Dr. Lee had to be restricted from freely communicating with outsiders during the period of his pretrial detention, given the uncertain location of the missing tapes. Following a request from the United States Attorney and Secretary Richardson -- a request the FBI fully supported -- the Attorney General authorized certain Special Administrative Measures to be imposed upon Dr. Lee. These Special Administrative Measures were requested for one reason and one reason only: to restrict Dr. Lee's ability to pass information through intermediaries that could have the devastating consequence of disseminating the nuclear secrets he had stolen from Los Alamos. Whether the tapes were missing for five years or missing for one day, they were still missing and unaccounted for, an unacceptable national security risk. This was not an idle fear by the government. As set forth below, Dr. Lee has in this very case been shown to tamper with or destroy evidence after being told he was under investigation.
More generally, we would like to emphasize that we sought to be responsive to complaints brought to our attention by Dr. Lee's attorneys concerning the conditions of his confinement. For example, we arranged for a Mandarin language-speaking FBI agent to be present, so that Dr. Lee could speak to his family in that language. Similarly, we made special food arrangements for Dr. Lee, arranged for exercise on weekends, and built, at significant government expense, a special secure facility in the courthouse where he could consult with his lawyers - and where, in fact, he spent up to six hours per day on over 90 days of his incarceration. In numerous respects, then, Dr. Lee was treated better than others who were also held in administrative segregation at this facility.
And let me clear up some misconceptions: Dr. Lee was held in solitary while in the facility, but - as I have just noted - in fact he spent a good part of over 90 days outside the facility, with his lawyers. He was not shackled in his cell, but only when he was transported or was otherwise outside his cell - as were others in similar circumstances. As to the claim that a light was kept on in his cell, we would like to point out that this claim first surfaced, so far as we are aware, after the plea. To the best of our knowledge, no complaint was made to us by Dr. Lee's lawyers about the lighting conditions in his cell. Significantly, we informed Dr. Lee's attorneys that we would respond to any reasonable requests regarding the conditions of his confinement - and that is precisely what we did.
We would like to move now to the disturbing allegations that the government engaged in selective prosecution or racial profiling in the investigation and prosecution of Dr. Lee. There is simply no truth to these allegations. Dr. Lee was not investigated because he is an American of Asian descent, he was not indicted because he is an American of Asian descent, and he was not incarcerated because he is an American of Asian descent.
As the Attorney General and the Director of the FBI, we are honored to head organizations that pride themselves on fair and impartial law enforcement. We would never tolerate racial profiling or selective prosecution, and we are committed to equal justice under the law. Dr. Lee was investigated and prosecuted based on his actions, not his race; and he has been convicted based solely on those actions. We will turn to those facts next
FBI COUNTERINTELLIGENCE INVESTIGATIONS OF WEN HO LEE
Dr. Lee has been known to the FBI since 1982. At the time, he worked in Los Alamos in X Division. His name surfaced when he contacted a suspected agent of a foreign power who was the subject of an ongoing FBI counterintelligence investigation. He offered to help that person identify who had brought him to the attention of the authorities. When Dr. Lee was first confronted by the FBI in November, 1983, he denied having contacted the individual. In fact, he denied even knowing the person. Only after Dr. Lee learned that the FBI had indisputable proof that the contact took place did he finally admit it. After providing an explanation of the reasons for the contact, he agreed to cooperate with the FBI regarding the individual being investigated for passing classified information. After he provided limited cooperation, the FBI ultimately closed that first inquiry into Dr. Lee because nothing else developed.
A decade later, in 1994, Dr. Lee again came under investigation because of his actions. Dr. Lee met with a senior foreign government nuclear weapons designer who was part of an officially approved delegation visiting the United States. The circumstances of the encounter clearly indicated that they knew one another, even though Dr. Lee had never reported meeting this weapons designer on prior trips abroad, as he was required by the conditions of his employment to do. As in the 1982 case, Dr. Lee did not reveal his relationship with this individual. Classified information about the details of this encounter which further heightened our investigative interest in Dr. Lee have previously been provided to the Committees.
The FBI's investigation into this 1994 matter was still ongoing when Dr. Lee emerged as a potential subject in the 1996 Administrative Inquiry by the Department of Energy (DOE) into the possible compromise of information related to the W-88 nuclear warhead. Being aware of the potential interest in Dr. Lee, and not wanting to take any steps that would interfere with that inquiry or expose the FBI's interest in Dr. Lee, FBI Headquarters and FBI Albuquerque agreed to hold the investigation of the 1994 incident in abeyance. Ultimately it was closed in favor of the larger W-88 investigation that began to be focused on Dr. Lee.
On May 26, 1996, DOE's Administrative Inquiry identified possible potential candidates for the leak but concluded that "Wen Ho Lee appears to have opportunity, means and motivation" to have compromised the W-88 information. The FBI opened an investigation of Dr. Lee in May 1996 based on this predicate. Clearly, the FBI should have conducted an additional, independent investigation to verify what was reflected in the Administrative Inquiry. The same should have been done to eliminate other suspects and to validate the conclusion that Dr. Lee was the most likely individual to have compromised the W-88 information. Nevertheless, when his name surfaced in the DOE investigation, Dr. Lee already had a history with the FBI. He already had demonstrated his willingness to lie to the government about his contacts with a suspected espionage subject in 1982 and to not report the relationship Dr. Lee had with a high-ranking foreign official that became known in 1994. He also had twice traveled abroad to meet nuclear scientists. Given those circumstances, the FBI began an investigation of the person who DOE concluded to be the most probable candidate for the W-88 leak. Additional classified information has been provided to the Committees about this episode.
As of December 1998, the FBI had not been able to verify that Dr. Lee was responsible for the possible compromise of the W-88 information. However, in subsequent months the investigation led to the discovery of the secret nuclear weapons information that Dr. Lee had been accumulating over a period of years from Los Alamos, as explained in greater detail below, in the section dealing with the criminal investigation.
After opening the investigation into Dr. Lee's possible involvement in the W-88 matter, the FBI sought to develop sufficient indicia of probable cause for a warrant under the Foreign Intelligence Surveillance Act (FISA) to conduct surveillance of Dr. Lee. The initial FISA application was submitted in 1997 but was not presented to the Court. The Department of Justice and the FBI had a good faith disagreement as to whether the application alleged sufficient probable cause to support a FISA warrant. The FBI's subsequent efforts to enhance probable cause, which admittedly could and should have been more aggressive, were ultimately unsuccessful. Additional classified information about this portion of the investigation has been provided to the Committees.
In March 1998, Dr. Lee traveled to Taiwan. In later investigation it was determined he consulted with the Los Alamos computer "Help Desk" to determine if he could access the secure Los Alamos computer system from overseas. He was told he could not.
In December 1998, Dr. Lee again traveled to Taiwan for three weeks. He returned on December 21, 1998. DOE, which oversees Los Alamos, conducted a polygraph examination of Dr. Lee with the concurrence of the FBI on December 23, 1998. To avoid alerting Dr. Lee of the FBI's interest in him, DOE characterized the examination as a standard, post-travel polygraph, combined with his five-year reinvestigation for security clearance purposes.
The DOE polygraph examination, done by a contract polygrapher, focused on whether Dr. Lee had any unauthorized contacts or shared any classified information with unauthorized persons. During the polygraph, Dr. Lee admitted for the first time that he had been approached in 1988 by PRC nuclear weapons scientists, one of whom became the head of the PRC nuclear weapons development program, in an effort to obtain classified information about U.S. nuclear weapons. At the conclusion of the DOE contract polygraph on December 23, 1998, FBI agents on the scene were told that Dr. Lee had passed the examination. This was an opinion that FBI and polygraph experts from another agency later concluded was mistaken.
Immediately after the December 23 polygraph, based on admissions by Dr. Lee about unreported contacts that he had had during foreign travel, Los Alamos officials informed him that for the next 30 days his access to the section of X Division where he worked would be denied. He was instructed to report to unsecure space in T Division. Dr. Lee's section within X Division was one of the most secure portions of Los Alamos and a location where research into nuclear weapons design takes place. Despite being informed that his access was removed, and that he could no longer enter X Division space without an escort, Dr. Lee improperly attempted, without success, to enter his section within X Division five different times on the evening of December 23, 1998. He then tried again on Christmas Eve, December 24, 1998, at 3:30 in the morning. In addition to those six attempted entries, Dr. Lee made 12 other attempts to enter X Division between Christmas Eve, 1998 and February 10, 1999. All such attempts were improper.
Records also indicate that when Dr. Lee officially reported to T Division on January 4, 1999, after the Christmas holiday, he sought assistance from the Los Alamos computer "Help Desk" to revive his X Division secure computing privileges. In making this request, Dr. Lee did not disclose that DOE officials had removed his access to the Division X server. Being unaware that Dr. Lee's access to Division X's server had been blocked for security reasons, the computer Help Desk reactivated his account. Once he regained access to his account, Dr. Lee deleted files from his X Division server.
In the meantime, after being informed on December 23, 1998 that Dr. Lee had passed the DOE polygraph, the Albuquerque Division of the FBI arranged an interview of Dr. Lee in preparation for closing out the pending FBI investigation of him on the W-88 matter. The FBI conducted this interview on January 17, 1999. Throughout the four-hour interview, Dr. Lee sought to appear cooperative and forthcoming. He provided new and additional details about contacts he had with foreign scientists, one of whom was related to information causing the FBI's 1994 investigation. Dr. Lee denied any involvement with the loss of the W-88 information. On January 21, 1999, at the request of the FBI, Dr. Lee signed, under oath, a statement that memorialized this interview. At that point, Albuquerque FBI, believing that Dr. Lee had passed the polygraph and was cooperating, advised FBI Headquarters that it had serious doubts that Dr. Lee was the appropriate suspect in the W-88 investigation. Consideration was given to closing the case.
The FBI had requested and later received from DOE copies of the charts from Dr. Lee's polygraph examination of December 23, 1998. These were submitted to FBI Headquarters for review by the polygraph experts who do quality control for the FBI. The Polygraph Unit at FBI Headquarters did not receive the copies until January 28, 1999, because the FBI did not aggressively pursue receipt of the charts from DOE. After completing the internal review of the polygraph results on February 2, 1999, the FBI polygraphers who conducted a "blind" review concluded that Dr. Lee's response to the question whether he had ever committed espionage against the United States was at best inconclusive. Review by experts at another agency of government reached a similar conclusion. The FBI shared the FBI results with DOE immediately.
As a result of this development, Dr. Lee was asked to submit to a polygraph administered by the FBI. On February 10, 1999, the FBI conducted a polygraph examination of Dr. Lee, after advising him of his rights. During this examination, the FBI asked Dr. Lee whether he had provided "these two sensitive [nuclear weapon] codes" to any unauthorized person and whether he had deliberately obtained any W-88 documents. The examiner found Dr. Lee's responses to be inconclusive. After discussion between the examiner and Dr. Lee about exactly what was being asked, the examiner rephrased the questions by asking Dr. Lee: "Have you ever given any of those two codes to an unauthorized person?" Answer: "No." "Have you ever provided W-88 information to any unauthorized person?" Answer: "No." The polygraph examiner concluded that Dr. Lee's responses to these two questions were deceptive. In a post-polygraph interview, Dr. Lee admitted helping nuclear weapons scientists from the People's Republic of China to solve a mathematical problem that they had previously been unable to solve. Dr. Lee conceded that the solution he had provided could easily be used in developing nuclear weapons, but he stated that he had not given up any classified information.
On March 5, 1999, the FBI interviewed Dr. Lee again. During this interview, he consented to a search of his X Division and T Division offices at Los Alamos. On March 7, 1999, the FBI questioned Dr. Lee one last time in an attempt to secure information about his involvement in the compromise of the W-88 information. Unfortunately, by that time, the investigation concerning Dr. Lee had been leaked to the press. This effectively eliminated any possibility of the normal, structured counterintelligence interview by specifically trained agents fitting for this circumstance. The interview was rushed, an inappropriate level of aggressiveness was applied, and the interview was unsuccessful. Dr. Lee did not admit or discuss what is now known to have happened. He gave no indication of having made any tapes or having done anything improper or illegal.
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. Meanwhile, however, the search of Dr. Lee's office at Los Alamos was underway. That search disclosed evidence that led eventually to his indictment.
THE CRIMINAL INVESTIGATION OF WEN HO LEE
The search of Dr. Lee's X Division office produced a notebook containing a one-page, computer-generated document that listed all of the files on a directory that Dr. Lee had created within the computer Common File System (CFS) at Los Alamos. An X Division physicist examined this list of files (given the name "kf1" by Dr. Lee) and determined that the files listed in Dr. Lee's "kf1" directory were contained in the open or unclassified part of the CFS. The physicist then confirmed that the file descriptions appeared to refer to highly classified information concerning thermonuclear weapons design and testing - information that under no circumstances should have been in an unclassified directory.
This discovery caused Los Alamos scientists to search the X Division portion of the Common File System. The physicist who reviewed the list found in Dr. Lee's notebook logged on to the system and tried to access the files listed in Dr. Lee's "kf1" directory. He discovered that the majority of the files had recently been deleted. Examination of all of Dr. Lee's directories showed that Dr. Lee had deleted more than 360 files and two complete directories between January 20, 1999 (three days after being interviewed by the FBI) and February 10, 1999 (the day he was polygraphed by the FBI). The Government was able to determine that the deleted files contained highly classified nuclear weapons data.
As an indication of Dr. Lee's criminal intent, and his awareness of the classified nature of the files, the following circumstances, among others, are relevant:
- Dr. Lee started improperly manipulating and moving the files in question from the classified to the unclassified system in 1993. He did not begin to delete those files until January 20, 1999. They remained on the unclassified system for as long as six years before Dr. Lee began deleting them. The deletions started three days after the FBI's January 17 interview.
- In addition, two days after the deletions began, Dr. Lee contacted the "Help Desk" at Los Alamos and asked for help in deleting files. Specifically, he was concerned that despite his best deletion efforts, the files were "not going away." The help desk explained to Dr. Lee that this was a safeguard built into the system in case a file was accidentally deleted. This safeguard ensured that a backup copy of the deleted file remained in the system for a period of days. Dr. Lee inquired whether there was a way to delete these backup copies, and after being instructed how to do so, he deleted the backup files that had been automatically created by the system as a result of his deleting the original files.
- On February 1, 1999, Dr. Lee again contacted the Help Desk for assistance because he was connecting to the Los Alamos computer system from home but he kept getting disconnected.
- Finally, Dr. Lee deleted files again on February 10, 1999, the day he failed the FBI polygraph examination. On that day, Dr. Lee deleted 310 of the 470 files that he had improperly moved from the classified to the unclassified system after being informed he failed the polygraph and admitting that he had been approached by scientists at night in his hotel room and had helped nuclear weapons scientists from the People's Republic of China.
After discovering the list of files and their apparent deletion from the system, Los Alamos officials immediately undertook the highly time-intensive process of recovering Dr. Lee's deleted "kf1" files from the archival portion of the Common File System. By the end of March 1999, experts at Los Alamos had retrieved the entire contents of the "kf1" files and confirmed that Dr. Lee had indeed moved highly sensitive nuclear weapons information from the classified to the unclassified side of the Los Alamos computer system. As exhaustive computer forensic efforts later established, effecting these transfers required numerous deliberate steps. There was no accidental or inadvertent method for completing the transfers.
First, as with any authorized Los Alamos user, Dr. Lee was required to log onto the computer system with his password and his "Z" number. For audit purposes, the system was designed to provide an audit trail that was traceable to the user's unique Z number. According to Los Alamos officials, the tracking capabilities of the computing system were not widely known.
The computing environment at Los Alamos in 1993 and 1994 consisted of four partitions, two of which are relevant to the charges against Dr. Lee: the Open (green) partition and the Secure (red) partition. The Open partition allowed only unclassified computing, and users were not required to have any type of security clearance. The Secure partition allowed both classified and unclassified computing, but only by personnel with Q-clearances, which, of course, Dr. Lee had. Q-clearance is a security clearance required to access classified nuclear weapons data. It is the highest security level at Los Alamos.
The Common File System (CFS) spanned the partitions and operated as a hierarchical system. That is, it allowed work to be performed at lower classification levels in higher security partitions but not the reverse. In order to lower the classification marking of a file, the file had to be down-partitioned and saved as a new file to CFS at the lower classification level. The computer used to down-partition a file was called "Machine C."
Because of the expanded computing power of the Secure partition, it was not uncommon for an X Division scientist to up-partition unclassified material from the Open to the Secure partition; after computing was completed in the Secure partition, the scientist could then legitimately down-partition the unclassified material back to the Open partition. This was the purpose of Machine C.
As previously mentioned, Dr. Lee was assigned a unique "Z" number that allowed him access to the Secure partition and to Machine C, which was used for down-partitioning. By tracing this Z number, the precise steps Dr. Lee took could be recreated, through forensic analysis.
After logging onto the Secure (red) partition, Dr. Lee would identify the classified material he desired, then save it in a secure directory by physically typing into the keyboard "SAVE" and then typing "CL =U," which means "classification level equals unclassified." By making these deliberate keystrokes, Dr. Lee was able to move material to the unclassified level, even though the material itself was actually classified. He would then use Machine C to down-partition the material from the secure partition to an open partition. Dr. Lee would then save the material to an open (green) directory. The material, which of course remained classified, was then available in electronic form in the open side of the computer and, therefore, could be accessed by any machine connected to the Internet. The material was available from any computer in the world, to any user who had or has Dr. Lee's Z number and password or through hacker intrusions. It was also available for copying onto portable media such as magnetic tapes.
As charged in the indictment, each of the 19 files he down-partitioned were "TAR" files, meaning each was a collection of many smaller files. The audit system tracked not only the movement of the files but the content of the files as well. Two X Division scientists, fully familiar with the material, confirmed that the files transferred to the open system contained the highly sensitive information about the most critical and powerful weapons of the U. S. nuclear arsenal.
The search of Dr. Lee's office also revealed three multi-page documents that did not bear classification markings, as required by regulation, despite the fact that those documents contained classified information. Subsequent forensic investigation revealed that the classification stamps or marks had been removed in several ways: (1) in one, the classified stamp had been covered up while the document had been copied on a copying machine; (2) in another, the classification markings had been physically cut from the top and bottom of each page; and (3) in the third, the classification marking had been deleted by computer command before the document was printed. According to Los Alamos officials, there is no bona fide work-related employment purpose in deleting classification designations or markings from a classified document. In fact, such deletions would constitute a violation of Los Alamos security regulations.
On April 10, 1999, shortly after these discoveries were made, the FBI executed a court-ordered search warrant at Dr. Lee's residence. During the search, agents found a three-ring notebook that indexed 13 portable computer tapes designated by Dr. Lee as Tapes A through M. Dr. Lee's index for Tapes A through M includes a file name and the size in bytes of each file. This index provided independent corroboration that the files Dr. Lee improperly down-partitioned onto the Open side of the computer at Los Alamos were the very same files that he downloaded onto Tapes A through M. The notebook in his residence also contained detailed, step-by-step, keystroke-by-keystroke instructions for downloading the Restricted Data files found in Dr. Lee's "kf1" directory onto the tapes.
Dr. Lee also had a handwritten notation in Chinese in his notebook that there was a Tape N which was the only copy of those particular files and that the files were not in his "kf1" directory. Tapes A through M were created in 1993 and 1994. Tape N was created in 1997 and contained the most up-to-date data on nuclear testing - data that would have greatly enhanced the usefulness of the 1993 and 1994 data. Through painstaking computer forensic and investigative work, the FBI was able to discern the origins of Tape N.
In 1997, when Tape N was downloaded by Dr. Lee, the policy at Los Alamos had changed to allow users to attach tape drives directly to a secure system. During Dr. Lee's earlier downloading in 1993 and 1994, tape drives were not available to individual scientists, and downloading could take place only with the assistance of an X Division computer specialist. By attaching a tape drive in 1997, Dr. Lee did not need to down-partition files and place them on the open system in order to make them available for downloading onto tapes. Instead, in 1997, he could download directly from the secure partition to the tape.
But, as noted above, Dr. Lee had to take more elaborate steps to create Tapes A through M in 1993 and 1994, since he did not then have a tape drive on his own X Division computer. Instead, he went outside of X Division to a computer of another Los Alamos employee in another Division. That employee taught Dr. Lee how to log onto the employee's computer and make tapes by downloading files onto the tape drive. Dr. Lee also obtained that employee's access number. Significantly, because he was outside X Division, this employee's computer could not access the Secure (red) partition. But, again as noted above, Dr. Lee already had defeated that security precaution by using his X Division computer to move the files to the Open (green) partition. He then could download the files onto the tapes from a computer outside X Division - precisely as he did.
CLASSIFICATION LEVEL OF THE DOWNLOADED MATERIAL
"Restricted Data" is statutorily defined in Title 42, United States Code, Section 2014(y) to include all data, not previously released by DOE, 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. Restricted Data is classified at three levels: Top Secret (known as TSRD), Secret (known as SRD) or Confidential (CRD).
The evidence indicates that Dr. Lee downloaded files relating to the design, construction and testing of nuclear weapons, including:
- Input deck/input file information that includes electronic blueprints of the exact dimensions and geometry of this nation's nuclear weapons, beginning with early atomic weapons and up to and including our most sophisticated modern warheads;
- Data files, including: nuclear bomb testing protocol libraries reflecting the data collected from actual tests of nuclear weapons; data concerning nuclear bomb test problems, yield calculations, and other nuclear weapons design and detonation information; and information relating to the physical and radioactive properties of materials used to construct nuclear weapons; and
- Source codes used for determining by simulation the validity of nuclear weapons designs and for comparing bomb test results with predicted results; and computer programs necessary to run the design and testing files.
All of this information was classified at the SRD or CRD level and we now know that Dr. Lee downloaded this information to computer tapes. Some of the downloaded and copied codes were the same codes in two formats. One format is designed to run on Cray supercomputers. The other format is designed to run on non-supercomputers.
During the search of Dr. Lee's office in the T Division, the FBI recovered, among other tapes, three tapes that later were determined to contain classified information. Two of the tapes still had intact classified data remaining on them. The third of these three tapes appeared at first to contain only unclassified data. But subsequent forensic review of that tape revealed that Dr. Lee had "reconfigured" the tape in February 1999, after he learned he was the subject of an FBI espionage investigation. In reconfiguring the tape, Dr. Lee uploaded the tape onto a computer, deleted three classified files while keeping the unclassified data, and then downloaded the unclassified data back to the tape. He then returned it to the shelf in his T Division office. Dr. Lee accomplished the reconfiguration by approaching one of his new T Division colleagues and telling him that he needed to use the colleague's computer tape drive in order to conduct some unclassified work that he had stored on tape; but, as noted above, computer forensics shows that he actually uploaded all of the files from the tape onto the T Division server, deleted the classified files only, and then downloaded the remaining unclassified files back onto the tape..
For the reasons stated above, Dr. Lee could not have inadvertently moved classified information to the unclassified side without knowing that the information was, in fact, classified. When Dr. Lee realized that he was the subject of an FBI investigation, he deleted exactly those downloaded files that were problematic for him. And, again, the classified files he deleted had remained on that open computer for more than five years before he took extraordinary measures to delete them.
As we enter the debriefing process, we are cognizant of the pattern that has repeated itself during the past 18 years. Beginning in 1982, Dr. Lee's initial response to investigators' questions was a staunch denial of any wrongdoing, followed by admissions when confronted with incontrovertible proof. Not until after his February 1999 polygraph did he admit to the scope of his assistance to nuclear scientists from the People's Republic of China. Similarly, through his counsel in this case, Dr. Lee initially denied creating any tapes of the downloaded information. When confronted with forensic proof, he conceded that he made tapes but maintained that the information on them was unclassified. Now, of course, we have evidence to prove that the information on the tapes was classified. Finally, of course, Dr. Lee has now at last admitted that he made copies of at least some of the tapes he created.
Based on the evidence described above, the government was prepared to prove each of the 59 charges in the indictment of Dr. Lee. The government was prepared to establish beyond a reasonable doubt that:
- Dr. Lee tampered and altered Restricted Data each and every time he removed the security classifications from the files listed in the indictment, a step he took in order to move those files to an Open system;
- When he moved those files to an Open system, he was appropriating the data for his own use;
- Dr. Lee maintained possession and dominion over the files, at least until January and February 1999, when he deleted them from the system.
- In so doing, Dr. Lee acquired the data with intent to injure the United States.
The FBI uncovered no direct evidence that Dr. Lee passed classified information to a foreign government. The circumstantial evidence, however, that Dr. Lee collected the files with the intent to injure the United States or to advantage a foreign nation, includes:
- X Division physicists were prepared to testify that the Secret Restricted Data contained in the files and downloaded tapes represent the most sensitive information collectively possessed within the X Division at Los Alamos. Dr. Lee knowingly and willfully placed America's most sophisticated information regarding the design and construction of nuclear weapons on an open computer system and then copied this information onto portable tapes that are still missing and alleged to have been destroyed.
- It was not a simple task for Dr. Lee to move files from the closed to the open system. The CFS tracking system reveals that Dr. Lee spent hours unsuccessfully trying to move classified files into unclassified space. Dr. Lee eventually worked his way around what was designed to be a cumbersome process. Dr. Lee had to command the computer to "declassify" the files when he was well aware that the files contained some of the most sensitive classified information at Los Alamos.
- Dr. Lee spent many hours assembling the files that he wanted to download. Those files contain entire sets of certain classified information that scientists at Los Alamos would testify are rarely used in their entirety because of their size. Dr. Lee's colleagues were prepared to testify that there was no legitimate work-related reason to assemble the files in the manner Dr. Lee did, much less move it to an open directory. In addition, Dr. Lee was not directly working on a significant amount of the data he collected. His colleagues would have testified that Dr. Lee had little involvement and no direct work-related reason to use the information he assembled.
- X Division scientists most familiar with the downloaded information would have testified that Dr. Lee took every significant piece of information to which a nuclear weapon designer would want access.
- Dr. Lee downloaded this data onto portable tapes, and then also made copies of at least some of those tapes. According to X Division scientists, the information was designed to run on secure Los Alamos computers. There is no legitimate work-related reason for creating tapes of this information. The creation of the tapes further evidences an intent on the part of Dr. Lee to remove the information from the sole control of the United States Government.
- Dr. Lee worked secretly to create the original nine tapes containing classified data in the 1993-94 time period. He made those tapes using a colleague's unsecure computer, as well as the colleague's password, without any legitimate, work-related purpose.
- Dr. Lee's deletion of X Division Secret Restricted Data files (including the backup copies) that he had moved from the closed to the open system at a time when the FBI alerted him to their investigation and his failed polygraph, compellingly demonstrates his consciousness of guilt.
- The evidence also indicated that Dr. Lee had sought employment overseas during this same time period.
The key pieces of evidence in this case - including the file list found in Dr. Lee's office, the classified files themselves that Dr. Lee had deleted from his computer and the detailed outline found in his notebook at his residence - once analyzed, explained and understood in context, establish that Dr. Lee willfully jeopardized the nation's most valuable nuclear secrets. He did so first by removing them from the secure, classified side of the Los Alamos computer system, thereby positioning the files to be electronically transmitted anywhere in the world. And he did so again by physically downloading the files onto tapes, in an unsecure location. Finally, of course, he has now admitted to copying at least some of those tapes.
What he did with those tapes has been, from the moment of discovery, of paramount concern to the government and explains the government's decision to enter into plea negotiations with Dr. Lee. Although we remain convinced that a successful prosecution of Dr. Lee on all 59 counts could have been brought, barring CIPA obstacles, we are equally convinced that a plea agreement provides the best available opportunity to gain the information needed to assess the full extent of the damage done to the national security by Dr. Lee.
This point is driven home by the fact that despite the government's interview of over 1,000 witnesses and review of 20,000 pages of documents in English and Chinese, and the forensic examination of more than one thousand gigabytes containing more than one million computer files, we only recently discovered a very critical piece of information from the defendant himself: the fact that, in addition to the downloaded tapes described in the indictment, Dr. Lee, through his counsel, advised the government that he made copies of at least some of the tapes in question. We learned this fact only as a result of the plea negotiation. Otherwise, we in all likelihood would never have known.
In sum, this has not been an easy case for the Government, for the Court, or for this Country. We welcome and value your oversight, even when it identifies our own shortcomings, because it can bring with it constructive criticism and new solutions. But in exercising this legitimate and valuable oversight function, these Committees should not lose sight of the fundamental point here: the responsibility for this situation rests exclusively with Wen Ho Lee, whose deliberate, unjustifiable, criminal actions put this Country, and the world, at great risk.