-Caveat Lector-
U.S. Blunders Undermined Lee Case
By Walter Pincus and David A. Vise
Washington Post Staff Writers
Sunday , September 24, 2000 ; A01
On the top floor of the Justice Department, behind a locked door
in a windowless conference room, FBI Director Louis J. Freeh
argued that it was time for the government to cut a deal with Wen
Ho Lee.
It was Sept. 5, the day after the long Labor Day weekend, and
everyone seated around the table had cause for concern, according
to participants. Attorney General Janet Reno came with a list of
about nine questions, including the potential damage to the
government's case from an FBI agent's inaccurate testimony.
Prosecutors from Albuquerque were worried that the trial judge
was leaning against them and might require them to disclose
nuclear secrets in open court.
Freeh wanted to head off courtroom disclosure of FBI internal
memos critical of the lead agent on the case, memos that still
have not been made public. The FBI director also feared that,
even if the government won a conviction, it might never learn why
the Los Alamos physicist had transferred nuclear secrets to
computer tapes, seven of which were missing.
"What I care about more than punishing this guy," Freeh declared,
"is finding out where those tapes are."
Since months earlier Freeh had been one of the original advocates
of an aggressive prosecution of Lee, his words had a profound
impact on Reno and others at the meeting. Five days later, the
attorney general, Freeh and federal prosecutors in New Mexico
unanimously blessed a plea bargain that set Lee free in exchange
for a guilty plea to a single felony count and a requirement that
he explain, under oath, why he made the tapes and exactly what he
did with them.
After months of arguing that Lee should not even be released on
bail, the government's turnaround seemed sudden and unexplained.
"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," President Clinton said after Lee's
release.
By the time Freeh urged prosecutors to make a deal, however, the
government's case was in far deeper trouble than senior officials
have ever acknowledged. Beginning with what some lawyers now
view as a fundamental miscalculation--charging Lee with intent to
harm the nation's security, when his motives remain cloudy to
this day--prosecutors made a series of tactical missteps that
alienated the judge and undermined the government's key
arguments.
The prosecution may go down in history as a failure by federal
authorities to balance the rights of a frail, 60-year-old
scientist against national security, pressure from Capitol Hill
and key officials' own political ambitions.
This week, Congress will begin hearings on the case. Reno and
Freeh have ordered internal investigations to determine whether
prosecutors or FBI agents bungled their responsibilities. Asian
American groups have demanded an inquiry and asked Clinton to
pardon Lee.
FBI spokesman John Collingwood says the FBI and prosecutors
remain convinced that Lee committed an egregious security breach
and that if they had gone to trial, they would have won. But
lawyers and officials connected with the case reluctantly
acknowledged in interviews last week that the prosecution had
made telling blunders and was suffering the consequences in
court:
* Even though there was no evidence of espionage, Reno, Freeh and
Energy Secretary Bill Richardson approved bringing felony charges
under the Atomic Energy Act that required prosecutors to prove
Lee acted with intent to harm the United States and to aid a
foreign power.
* After persuading U.S. District Judge James A. Parker to hold
Lee without bail, prosecutors ignored the judge's entreaties to
soften the conditions of Lee's incarceration, earning the judge's
ire.
* Less than a month after Lee's indictment, U.S. Attorney John
J. Kelly, a college classmate and longtime friend of Clinton,
resigned to run for Congress. A few months later, the lead
prosecutor changed when Robert J. Gorence was removed from the
case because of a personal indiscretion.
* Gorence's successor altered the prosecution's basic theory of
the case, arguing that Lee's motive for making the tapes might
have been to impress prospective employers in Taiwan, Australia,
France, Germany, Hong Kong, Singapore or Switzerland, rather than
to help China's nuclear weapons program.
* The FBI's lead investigator conceded that key testimony he gave
at Lee's first bail hearing about the scientist's "deceptive"
behavior had been inaccurate, raising the judge's hackles and
making senior officials worry about the damage that might result
if internal memos about the agent's conduct came out in court.
* Prosecutors were blindsided when the defense came up with
expert witnesses who questioned the secrecy and importance of the
information Lee had downloaded onto tapes.
* After a string of adverse rulings by the judge, prosecutors
were afraid that Parker would be swayed by the defense's
ingenious argument that the data downloaded by Lee contained
significant flaws and would not be much help to a foreign power.
Officials all the way up the line to Reno worried that the judge
would allow Lee's lawyers to introduce the classified data in
open court, forcing the government to choose between revealing
national secrets and abandoning the case.
Intense Political Pressure
On the chilly morning in March 1999 when Energy Secretary
Richardson directed the University of California to fire Wen Ho
Lee from Los Alamos National Laboratory, where Lee had worked for
nearly 20 years, the FBI's three-year investigation into
suspected espionage at the nuclear weapons lab was winding down.
The FBI had found no evidence that Lee, or anyone else at Los
Alamos, had passed secrets to China. But Richardson, a former
congressman from New Mexico with vice presidential aspirations,
was under intense political pressure to tighten security and make
an example of Lee.
A House select committee chaired by Rep. Christopher Cox
(R-Calif.) had written a dire report on Chinese nuclear spying,
and congressional Republicans accused the Clinton administration
of dragging its feet. The ranking Democrat on Cox's committee,
Rep. Norman D. Dicks (Wash.), had gone to Richardson's office
to warn him privately that the allegations were serious and that
as secretary of energy he had to act.
The grounds for Lee's dismissal were a series of minor security
breaches, including his failure to report fully on his contacts
with Chinese scientists. Then, a week after his firing, FBI
agents and lab security officers searched Lee's office computers
and discovered that he had downloaded 806 megabytes of classified
information--the equivalent of 430,000 pages--from Los Alamos's
secure computer network to an unsecure desktop and portable
tapes.
Energy officials, FBI agents and federal prosecutors saw the
massive downloads as confirming all their worst fears about Lee's
"deceptive" behavior, which they had tracked in the long but
inconclusive espionage probe, code-named "Kindred Spirit."
But even then, prosecutors were left wrestling with the question
of exactly what law Lee might have violated. No government
employee, at that point, had ever been criminally charged for
transferring data from a classified to an unclassified computer.
Kelly, the U.S. attorney in New Mexico, put Gorence, a tenacious
prosecutor and the son-in-law of Sen. Pete V. Domenici
(R-N.M.), in charge of the downloading case, code-named "Sea
Change." In a key memo in May, Gorence and his colleagues
recommended that Lee be the first person ever charged with
mishandling nuclear secrets under the 1954 Atomic Energy Act,
which carried a possible sentence of life imprisonment.
As the prosecutors saw it, the 1954 law "fit like a glove"
because it was written in the McCarthy era specifically to cover
cases in which government insiders exposed nuclear secrets but
there was no proof of espionage.
To convict Lee under the Atomic Energy Act would require the
government to show that he acted "with intent to injure the
United States or . . . to secure an advantage to any foreign
nation." But the U.S. attorney's office felt it could meet that
burden because the law defines "injury" as any action that denies
the U.S. government "exclusive use" of classified nuclear
information. Thus, taking the information for any unofficial
purpose--whether to give to China, or to help get a new job at a
university, or even for a private archive--legally could be
considered injuring the nation.
The prosecutors could not proceed, however, until the Department
of Energy reviewed all of Lee's downloads and determined how much
of the secret information could be made public in court without
damaging national security. That took all summer and continued
into the fall.
Finally, Kelly and Gorence took seven copies of a detailed
prosecution memo to Washington in early November. Their
aggressive recommendations prompted Reno to summon John C.
Browne, the director of Los Alamos, and Stephen M. Younger, the
lab's chief nuclear weapons official. The attorney general
wanted to make doubly sure that Lee's downloads really did
represent a major threat to national security. Both officials
assured her that they did.
"We wouldn't have [sought the indictment] if we thought it would
come down to a battle of experts," said one government official.
"It always hinged on the value of the information."
In hindsight, some government lawyers wonder whether they looked
hard enough for dissenters at the lab and in the scientific
community. "Going straight to the lab's top brass was kind of a
tactical blunder, in my opinion," said John Richter, a veteran
nuclear weapons designer who dealt a severe blow to the
government's case by testifying at a bail hearing in August that
99 percent of the information Lee downloaded was available in
open literature.
A Serious Blow
The decision to prosecute Lee was made at a meeting in Reno's
conference room shortly before Thanksgiving. Despite lingering
questions 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 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.
Six days after the meeting, Lee was indicted and arrested on 39
counts of violating the Atomic Energy Act and 20 counts of
unlawfully retaining classified information. The Atomic Energy
Act violations, carrying maximum life sentences, enabled Kelly
and Gorence to ask for Lee to be held in jail while awaiting
trial.
Richardson, as secretary of energy, sent Reno a certification
that also enabled the Justice Department to direct jail
authorities to keep Lee in solitary confinement, segregated from
other inmates through whom he might be able to communicate with
the outside world.
Richardson and other senior administration officials contended at
the time, and still contend today, that it was necessary to hold
Lee without bail because he posed a danger to national security.
But some officials also acknowledge that they threw the book at
Lee and kept him in solitary confinement to squeeze him into
confessing why he had downloaded the data and what he had done
with the missing tapes.
"We pushed for solitary confinement to make life as difficult as
possible, because if he were sent home, there would not be a lot
of incentive for him to come clean," said one senior official,
speaking on condition of anonymity.
Lawyers who are not involved in the case have questioned that
decision, saying it is unethical to deny bail in an effort to
coerce a confession.
"I truly understand the concern that the Justice Department and
the intelligence community have over the potential ramifications
of the loss of that information," said E. Lawrence Barcella Jr.,
a former federal prosecutor. "But that is not an excuse for
using a law in a way that it wasn't intended to be used, and
abusing a defendant's rights along with it."
Judge Denies Bail
After a magistrate initially ordered Lee to be kept in jail,
Parker held a three-day bail hearing in late December.
The government called three key witnesses. Richard Krajcik,
deputy director of Los Alamos's top-secret X Division, testified
that Lee had downloaded the "crown jewels" of America's nuclear
weapons program. Paul Robinson, president of Sandia National
Laboratories, testified that Lee's downloads could change the
global strategic balance, if they were to fall into the wrong
hands. And Robert Messemer, the FBI's lead agent, testified that
Lee had repeatedly deceived both the FBI and his colleagues at
Los Alamos about his computer downloads and his contacts with
Chinese weapons scientists.
At one point, according to Messemer, Lee told a colleague that he
wanted to borrow some equipment in order to download a "resume"
onto a tape. The testimony would come back to haunt the
government in August, when Messemer admitted in court that Lee
had never said anything about a resume and, in fact, told his
colleague that he wanted to download "some files."
Kelly personally summed up the government's case in a lengthy
closing argument, calling for "extraordinary measures" to keep
Lee in solitary confinement and limit his communications. A few
days later, on the heels of the biggest indictment of his career,
Kelly resigned to run for Congress.
Parker, meanwhile, denied bail. But the judge was troubled by
the harsh conditions of Lee's incarceration and urged prosecutors
to consider loosening them. He also urged the government to
accept Lee's standing offer to take a polygraph examination on
the question of what became of the tapes.
Gorence and other prosecutors ignored Parker's exhortations.
Indeed, Gorence has told friends that his "single greatest
mistake" in handling the case was not insisting that Lee receive
more humane treatment while in custody.
The Santa Fe jail where Lee spent nine months is run by a
private, Houston-based firm, the Cornell Companies Inc. A
spokesman for Cornell said the Justice Department requested that
Lee be placed in the facility's "administrative segregation
unit," which is usually reserved for "disruptive or dangerous
detainees." Like others in that unit, Lee was required to wear
leg shackles during his daily hour of exercise, and a dimmed
light was kept burning over the sink in his cell so that he could
be watched at all times, said the spokesman, Paul Doucette.
"Because of the high profile nature of the Wen Ho Lee case,
Cornell Companies received a special administrative management
order (SAM) from the Justice Department prescribing Dr. Lee's
conditions of confinement. Those requirements were met," the
firm said in a written response to questions from The Washington
Post. "During the period of Dr. Lee's confinement, the Justice
Department periodically sent changes to the SAM and those changes
were implemented immediately," Cornell added.
According to government officials, it was not until May, five
months after Lee's arrest, that Richardson requested the jail to
allow Lee reading materials, longer exercise periods and more
frequent meetings with family members.
By then, defense attorneys were attacking the government's case
on multiple fronts. They alleged that Lee had been singled out
for investigation and prosecution because he is an Asian
American. And they were challenging the legality of a warrant
used to search his home in April 1999.
But their most devastating tactic was a form of "graymail,"
trying to force the government either to reveal classified
information in court or to drop the case.
One of Lee's attorneys, John Cline, a "graymail" expert who had
helped to defend Oliver L. North in the Iran-contra scandal,
first tipped his hand in April, referring obliquely to "flaws" in
the downloaded data in a little noticed court filing. In a
closed hearing on July 12 in Parker's chambers, defense lawyers
fleshed out the argument, contending that much of the data was
available to the public and that the tapes contained significant
mathematical errors.
On Aug. 1, Parker ruled that the content of the tapes was
relevant to Lee's defense, and ordered the government to find a
way to describe to a future jury the nuclear secrets that Lee was
accused of mishandling.
In early September, Cline filed a brief, under seal, arguing that
declassified summaries of the data would not suffice in court,
and that the entire contents of the tapes had to be made public
so that Lee could show jurors precisely how they were flawed.
By the time Reno and Freeh sat down after Labor Day in the
conference room at Justice to review the status of the case,
prosecutors were deeply worried that they could not hold off
Lee's graymail defense.
The judge had already ordered the government to provide
voluminous records in response to Lee's selective-prosecution
motion. Parker also had signaled growing skepticism toward the
government's case when he held another bail hearing and ordered
Lee's release, which the government quickly appealed.
By then, the judge had heard Richter--who was acknowledged even
by the government's witnesses as a preeminent nuclear weapons
designer--testify that the data Lee copied were not America's
"crown jewels" after all. And he had heard Messemer, the FBI
agent, admit to providing inaccurate testimony. He apparently
did not know--and the government did not want him to find
out--that Messemer's supervisor had written a withering critique
of the agent's performance to FBI superiors.
By agreeing to the plea bargain, the government quickly secured a
conviction, albeit on a single count, and averted the risk that
its case might crumble altogether on Sept. 19, when Parker had
scheduled a hearing on the question of what classified material
could be admitted at trial.
It appears to have been a shrewd choice. The depth of Parker's
discontent did not become fully apparent until he spoke from the
bench 11 days ago, as he formally sentenced Lee to the time the
scientist had already served. "I tell you with great sadness,"
the judge said in a profuse apology, "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, who held the office at that time."
Staff writers Susan Schmidt and Vernon Loeb contributed to this
report.
The Lee Trial
March 8, 1999: Energy Department fires scientist Wen Ho Lee from
Los Alamos National Laboratory. He denies having provided
secrets to China.
April 10: FBI agents search Lee's home and remove boxes of
material.
May 26: Congress releases Cox report, which alleges two decades
of Chinese espionage at U.S. nuclear weapons labs.
Dec. 10: A grand jury issues indictment accusing Lee of
downloading secrets from a secure Los Alamos computer, and he is
arrested.
Dec. 20: Lee sues the FBI and Justice and Energy departments,
saying they wrongly portrayed him as a spy.
Dec. 29: U.S. Judge James A. Parker denies bail for Lee,
citing seven missing computer tapes containing nuclear secrets.
Feb. 29, 2000: Federal appeals court denies Lee's request for
bail, citing missing tapes; Lee's lawyers say tapes were
destroyed.
Aug. 17: FBI agent Robert Messemer admits during bail hearing
that he gave false testimony in December.
Aug. 24: Parker agrees to release Lee on $1 million bail.
Sept. 13: Lee is set free after pleading guilty to one of 59
counts against him and agreeing to tell the FBI all he knows
about the materials he downloaded.
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Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF: <[EMAIL PROTECTED]>
*Mike Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~ <[EMAIL PROTECTED]>
The Best Way To Destroy Enemies Is To Change Them To Friends
Shalom, A Salaam Aleikum, and to all, A Good Day.
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