Denise Woo, the J.J. Smith Factor, and the Spirit of '99

This has certainly been the week for chickens coming home to roost in FBI mismanagement of China-related counterintelligence operations.

Wen Ho Lee settled his invasion of privacy case against the US government and five media organizations relating to the botched espionage prosecution (for an in-depth backgrounder, please see the previous post, One Bad Espionage Case).

Today’s LA Times announced that Denise Woo had accepted a plea bargain in her case.

Ms. Woo was an FBI agent indicted for “allegedly tipping off a family friend that he was suspected of spying for the Chinese” in 1999. If the government proved its case, she could have gotten 15 years; instead she got one year’s probation and a $1,000 fine.

The LA Times’ account by Tanya Caldwell, (Ex-FBI Agent Enters Plea in Espionage Case, LA Times print edition, June 8, 2006) is relatively murky as to why the government was unable to throw the book at an FBI agent who allegedly not only tipped off her friend but revealed the identity of a confidential informant.

The case was apparently garbage and the target wasn’t a spy. No big shock there—and nothing exculpatory that would seem to justify Ms. Woo’s escape (albeit after a nightmarish 7 years) from the clutches of the law.

Fortunately, The American Lawyer weighed in on June 1 with a colossal 7600 word stemwinder The Deception of Denise Woo, written by Alison Frankel, who obtained the unstinting assistance of Woo’s lawyers at O’Melveny and Myers.

They even obligingly identified the innocent target of the investigation, previously known only as “JW”, as Jeffrey Wang, an engineer at Raytheon who lost his job as a result of the allegations. Mr. Wang has perhaps decided that anonymity is no longer necessary since he is apparently preparing his own lawsuit against the government.

The takeaway is this:

Woo was an exemplary FBI agent working on white-collar crime and Internet predators against children.

She happened to be a good friend of a woman married to Jeffrey Wang, an ethnic-Chinese engineer who fell under suspicion of espionage during the notorious reign of FBI China counter-intelligence guru J.J. Smith, (who was forced to resign after it was revealed he had concealed an affair with his key counter-intelligence asset—Katrina Leung—who turned out to be a double agent who was stealing documents from his briefcase).

Although Woo was not trained in counter-intelligence, she was put on the case in 1999 as a covert operative, instructed to present herself to Wang as a sympathetic family friend who just happened to work in the FBI, even as she collected evidence against him.

To quote Frankel’s article:

Wang was a member of Woo's extended family network, the husband of a woman she grew up with and the son-in-law of a couple whose close friendship with Woo's mother dates back more than 40 years. Woo was dragged into the Wang investigation, despite voicing misgivings, by superiors at the FBI who were eager to exploit her friendship with their suspect. She was compelled to deceive her family and friends for months, living like an undercover agent in her own life, though without benefit of the training and supervision the FBI is supposed to provide to undercover agents.

She played the role for months, but finding no evidence of his guilt and determining that the investigation was unfounded, an opinion that she insistently brought to the attention of her superiors, who disregarded her.

Though her lawyers are coy on this matter, it appears that Ms. Woo finally blabbed to Mr. Wang that he was being wiretapped and also revealed (in a taped conversation) the name or clues to the identity of the tainted informant.

Then the FBI and Justice Department attempted to throw the book at her and, to paraphrase a classic Chinese metaphor, only succeeded in dropping it on their own feet.

The defense strategy was clearly telegraphed in Frankel’s article:

First, that Ms. Woo was not properly trained for the greasy and equivocal role of a counterintelligence operative, particularly one who was explicitly recruited to perform the repellent task of trying to build a case against a family friend she believed to be innocent.

One has to believe she didn’t enjoy the scene when Wang reached out to her to stand by him and his family while the FBI tossed their house:

At some point that day Wang told Gil Cordova, the FBI agent in charge of his case, that he had a friend who was an FBI agent. Cordova said Wang could call her, not telling Wang, of course, that Woo had actually been part of the investigation team for months. Denise Woo arrived at the Wangs' house that night during the search, and sat with Jeff and Diane Wang in their living room. Wang, who was relieved she was there, started talking to Woo about the investigation. "From their perspective," says Wang's lawyer, Rawitz, "they had a friend who was going to work out this situation." Adds Brian Sun: "They had no idea that she knew about the case beforehand."

Second, her admissions to Wang could be defended as trust-building revelations concerning facts Wang already knew or suspected.

Third, Woo found evidence of an unrevealed nature exonerating Wang which the FBI refused to accept, forcing her to continue in an effort she found highly stressful, unnecessary, and morally and legally repugnant.

Fourth, the guy was innocent for Pete’s sake. No harm no foul!

Fifth, and perhaps most crucially, Woo could claim botched supervision by J.J. Smith, whose record of fornication with Chinese double agents, rule-bending, and general over the cliff disastrous mismanagement of the FBI’s China counterintelligence efforts in LA could be contrasted most unfavorably with Woo’s diligence, ethics, and overall punctillio.

The article provides a taste of what might have transpired in the courtroom if the case had gone to trial:

Two days after the search, Wang went to see Sarah Woo, Denise's mother and his financial adviser. She was stunned at the FBI's accusations. …Wang asked Sarah Woo… to call the FBI on his behalf. He handed her the business card J.J. Smith had given him the night before. Then Sarah Woo called Smith. It was a surpassingly bizarre moment: The unsuspecting mother of an FBI agent who'd spent several months assisting the investigation of her mother's client was on the phone with the agent supervising the investigation her daughter was secretly a part of. "Jeff would like for me to come in and meet with you to clear this up," Sarah Woo recalls telling Smith. Smith, she says, dismissed her, rudely. "He said, 'I know all about the Chinese. I know he's a spy.' "

The J.J. Smith factor has already sunk one government case—the biggee, the Katrina Leung investigation. In the generous plea bargain the Feds gave Smith (one count of lying, retirement, no jail time), they specified that he could not speak to Leung or her attorneys, hopelessly compromising her defense and resulting in most of the serious charges being thrown out.

And it doesn’t seem that the government’s throw it at the wall and hope it sticks approach to counter-espionage prosecutions has changed.

In fact, it appears to be built into the system.

Frankel provides a good description of the quasi-legal counterintelligence strategies pursued by the FBI:

Many of the people China tried to win over were Chinese Americans, so that's where the FBI concentrated its counterespionage efforts in the 1980s and 1990s. Counterintelligence agents developed informants among Chinese Americans and Chinese citizens living in the U.S., relying on them to supply information on people with contacts, either professional or personal, in China. The goal was to identify and neutralize Chinese agents, not necessarily to prosecute them; more often, according to Moore, suspects would find their security clearance quietly revoked or FBI agents dogging their travels. Chinese counterintelligence attracted agents who preferred to work in the shadows.

The question is, how far can the government go into the grey area of using informants, entrapment, and creative employment of the legal process to interdict genuine espionage before it starts harassing and intimidating innocent Chinese in the United States who have limited ability to protect their reputations and livelihoods from sloppy government hit jobs?

Answer: I don’t think the government worries too much about the question.

On the same page of the LA Times that announced Woo’s plea on June 8, 2006 is an article by H.G. Reza entitled “Pair Are Indicted in Chinese Spy Case”.

It refers to the case of the Mak family, who were nailed trying to take some computer disks relating to submarine propulsion systems to China.

Open and shut case? Maybe not.

To quote from the article, “[Espionage] charges were dropped when prosecutors revealed that most of the information they were accused of stealing was publicly available.”

The Maks are not being tried as spies. They are now being tried as “unregistered agents of the Chinese government.”

I would suspect that “the Spirit of ‘99”—the year of Cox Report and the inception of the Wen Ho Lee and Denise Woo cases—is still alive and well at the FBI.