Looking back at the Wen Ho Lee case, it clearly demonstrates the need for the Patriot Act and warrantless NSA spying on American citizens—at least for our national security apparatus.
Because the exercise of unlimited, unaccountable police powers is the final refuge of overzealous and incompetent investigators.
A brief overview of the Wen Ho Lee case (I am indebted an excellent detailed discussion of the case and the technical and security issues involved in Dan Stober and Ian Hoffman’s A Convenient Spy, Simon and Schuster, New York, 2001, hereinafter ACS) provides some background:
Wen Ho Lee worked on fluid dynamics simulations as a computer programmer at Los Alamos. A technical mediocrity perpetually on the RIF (reduction in force) bubble, he scouted around for consulting work overseas and sought to boost his profile by inserting himself into the ongoing exchanges between Chinese and US weapons scientists during the Reagan and Clinton years.
He was also a dingbat who downloaded sensitive files in his specialty, first to an unsecure network and then to tapes, perhaps as personal trophies or as a resource for a second career. When his misdeeds came to light, he panicked, lied, and destroyed evidence in an effort to cover his tracks.
Wen Ho Lee should have been terminated for his security violations and he probably should have suffered criminal penalties for obstruction of justice.
Instead, he ran afoul of Department of Intelligence counterintelligence chief Notra Trulock, whose national security jihad paradoxically provided Lee with redemptive incarceration, book and movie deals, and a big settlement from the government and news organizations for the invasion of his privacy.
Trulock was determined to unearth “one good espionage case” that would lead to an overhaul of lax security procedures, indifferent management, and excessive accommodation of Chinese visitors that he believed plagued America’s nuclear weapons facilities under the Clinton administration.
Unfortunately, he became obsessed with one bad espionage case, a mistaken attempt to pin China’s acquisition of information about America’s W88 warhead on Wen Hou Lee.
In 1992 China detonated a nuclear device that resembled the W88 in yield and—according to an espionage report—in general shape. In 1995, a defector delivered documents that indicated that China had some classified information on the W88 and other warheads.
The W88 is a tricky, neat little package, very difficult to make and represents the pinnacle of US weapons design and manufacturing. Notra Trulock seized upon the fragmentary intelligence to assert that Chinese espionage had delivered a devastating blow to American nuclear superiority and security.
When Los Alamos experts refused to endorse a conclusion that the Chinese device was a W88 duplicate achieved by theft of US nuclear secrets, Trulock suppressed their report (it was claimed he said he’d wipe his ass with the report, which he denied, but he did hide it in his safe) and pulled the FBI in on a spy hunt centered on Wen Hou Lee and his wife.
A fitful FBI investigation found sufficient grounds to question Lee’s frankness and judgment, but nothing incriminating on the espionage front.
Frustrated, Trulock briefed fanatically—more than sixty times by his count--to a broad range of bureaucrats including Sandy Berger, Louis Freeh, Janet Reno, and William Cohen on the alleged theft of W88 secrets, alleging the existence of a Chinese mole.
In 1998, he finally found a receptive audience in the “House Select Committee on U.S. National Security and Military Commerical Concerns with the People’s Republic of China, a.k.a. the Cox Committee.
The committee had originally been convened for the noble but relatively modest purpose of embarrassing the Clinton administration and top management of Loral and Hughes (who happened to supply campaign contributions and government appointees to the Clinton administration) for their excessive cooperation with China to resolve technical problems with China’s launch vehicles that were blowing up with American satellites inside.
Trulock electrified the commission.
Cox himself said, “I saw the look on their faces, I listened to the expression of emotion when we heard these things, and our hearts were in our mouths”. [ACS, p.169]
One member said:
“The Cox Committee had been cranked up expecting to find some significant lapse of security in the satellite launches…Instead we went into the fall with a ho-hum set of findings that weren’t going to alarm anybody. And then Notra Trulock comes along with a story of nuclear espionage.” [ACS, p.170]
The denouement was the Cox Report (abridged version, ed. Kenneth Degraffenreid, Regnery Publishing Co. Washington D.C., 1999 hereinafter CR).
The Overview of the unclassified version begins:
The People’s Republic of China (PRC) has stolen classified design information on the United States’ most advanced thermonuclear weapons…The stolen U.S. nuclear secrets give the PRC design information on thermonuclear weapons on a par with our own. [CR, p.1]
It gave full weight to the worst-case scenario that stolen US secrets had saved the Chinese “years of effort and resources” in developing the “next generation intercontinental ballistic missiles” that would, among other things, “enable PRC ballistic missile submarines to strike the U.S. from within PRC waters”.
Caspar Weinberger, ironically basking in a presidential pardon for his own foreign policy malfeasance, later wrote in the foreword of the Regnery edition of the Cox Report to connect the dots for the partisan-minded:
“…when one looks at the evidence…it appears that the main Clinton-Gore foreign policy is appeasement…The great mystery when we look at the actions of the Clinton Gore administration is trying to explain why? Why would the administration so cavalierly endanger American security? Is it really a matter so simple, so sordid, so base as campaign contributions?…the Clinton-Gore administration stands condemned of some of the worst and most damaging national security decisions of this century.” [CR foreword]
However, history has not treated the Cox Report particularly kindly.
“They cherry picked, and they disregarded the larger body of analysis,” said one former CIA analyst. “It seemed fairly clear from both the process and the outcome that they went in with a set of conclusions already in hand and the cherry picking was to support that. The predetermined finding was: The Clinton administration is full of incompetents at best and willfully negligent on national security at worst, and all these things were sort of purchased with campaign contributions.” [ACS, p. 222]
Wen Ho Lee appeared incognito in Chapter 2 of the report, identified as a “suspect” in the theft of W88 design information identified in spring 1995 who “At the date of the Select Committee’s January 3, 1999 classified Final Report…continues to work at the Los Alamos National Laboratory, and continues to have access to classified information.” [CR, p. 120]
Lee did not remain anonymous—or employed--for long.
When the Clinton administration tried to suppress the report by abuse of the classification process, Trulock pulled an end-around and found another receptive audience: James Risen at the New York Times.
Risen’s scoop packaged Trulock’s alarmist assumptions—that the Chinese had stolen W88 secrets, there was a suspect at Los Alamos who stood out like “a sore thumb”, and that the Clinton administration was stalling the investigation—as fact and stampeded the Clinton administration into first leaking Wen Ho Lee’s name to the press and then firing him.
Then government investigators stumbled across evidence of Lee’s massive, illicit downloads of computer code—the first real evidence of malfeasance.
The only problem was that by that time the central pillar of any espionage case against Lee—the walk-in spy data that supposedly linked Los Alamos and by implication Lee to China’s “W88” knock-off—then crumbled.
A team reviewed the data and determined that the Chinese defector’s documents only covered the exterior dimensions of the W88 nuclear package—which was information provided to contractors working on the physical interface between the package and the nosecone. It was data Lee had no access to.
Nevertheless, the government brought a 59-count indictment against Lee, passed the word that he had committed espionage as damaging as the Rosenberg and Aldrich Ames, and maneuvered to deny him bail and incarcerate him in shackles in solitary confinement so he could neither communicate with nor be rescued by his presumed co-conspirators, hoping the onerous conditions would press him to confess.
When the case came to trial, government witnesses testified that a hostile power could reverse-engineer not only the W88 but virtually the entire US nuclear arsenal by examining Lee’s tape.
But this crucial testimony was fatally undermined by incensed experts from Los Alamos testifying for the defense, who declared that the tapes would be useless to the bomb in the basement gang and at best of only reference interest to the more sophisticated nuclear powers like China, which already have the infrastructure, man-centuries of experience, and modeling software of their own to apply to nuclear weapons design.
With no proof of espionage, no plausible consensus as to the importance of Lee’s downloads, and various government miscues, the case fell apart.
The presiding judge, James A. Parker pushed the two sides to a plea bargain of guilty on one of the 59 counts and released Lee for time already served. When he dismissed the case, Parker said:
“It is only the top decision makers in the Executive Branch, especially in the Department of Justice and the Department of Energy…who have caused embarrassment by the way this case began and was handled. They did not embarrass me alone. They have embarrassed our entire nation and each of us who is a citizen of it.” [ACS, p. 330]
The government didn’t even recover the tapes. Their deal with Lee was only that he would provide an affidavit and submit to further questioning as to how he disposed of the tapes.
Lee claimed he had tossed them in a dumpster at the lab. Despite an exhaustive search of the landfill, the tapes were never found.
The source of the W88 security breach was never discovered. Thousands of contractors and individuals had access to the information; a Lockheed document seemed to match the data most closely.
An amusing sidelight in Tobin and Hoffman’s book is the Chinese indignation at the American presumption that their advances in weapons design could only be achieved by theft of US nuclear secrets.
A Chinese scientist, Hu Side, had designed the device whose detonation in 1992 triggered the whole W88 crisis. He berated a visiting Los Alamos administrator:
“You have overestimated the scientific and technical capability of the U.S. and seriously underestimated that of China…You have insulted us…We never learned anything from you…We did not need you!”[ACS, p. 226]
One might think Dr. Hu was laying it on a bit thick, since extensive and intensive Chinese intelligence gathering and espionage about the US nuclear weapons program is an acknowledged fact. But the American visitor, a scientist and intelligence officer who had first hand knowledge of the Chinese nuclear program, agreed:
“I think they did it on their own…I don’t think it was espionage.”[ACS, p. 226]
The FBI had floundered with the case for four years. Laughably, they dithered interminably over whether they could search Lee’s computer without his knowledge, even though they could have done so (he had signed a release prepared by his division many years before, but the FBI never asked about it).
They tried to get a warrant from the FISA (Federal Intelligence Surveillance Act) court on national security grounds—ordinarily not an overwhelmingly difficult task.
Writing before the current brouhaha over the Bush administration’s refusal to go through the FISA court and instead engage in warrantless surveillance, Stober and Hoffman wrote:
“The FBI loves FISAs,” said a congressional aide who has followed the bureau. And the FISC [Federal Intelligence Surveillance court] loves to give them, approving an average of roughly 800 a year—or more than two a day including weekends—in the 1990s. [ASC p. 151]
But the case against Lee—prior to the Cox Report cum Notra Turlock firestorm in the New York Times--was so weak that the application didn’t even pass Justice Department internal review.
A government investigation of the debacle also pointed out the gross errors committed by an investigation that was premised on ethnic profiling.
Ethnic factors were not employed to expand the list of possible suspects; instead, the process was used to exclude entire classes of potential spies and eventually narrow the list down to Wen Ho Lee.
In the words of the report:
“The AI [Administrative Inquiry] should have been a sieve resulting in the identification of a number of suspects. Instead, it ended up as a funnel from which only Wen Ho and Sylvia Lee emerged.” [ACS, p. 126]
It remains to see if the Wen Ho Lee case, with its ideas of proportion, due process, and fair play, is remembered as a quaint artifact of 20th century American jurisprudence.
Post 9/11 public opinion has followed government practice and veered toward approval of racial profiling as a “better safe than sorry” national security tool.
Today Wen Ho Lee could be held incommunicado as an enemy combatant and denied the legal recourse and invaluable publicity and sympathy that his plight gained him.
The psychological pressure of indefinite incarceration could be used to break him and provide a false confession enabling the government to make a deeply flawed case.
Apparently, today there would be no FISA gatekeeper, either at the court or the Justice Department, to review a dodgy brief and perhaps put a misguided investigation on hold.
And of course, redress in the form of a lawsuit punishing the government and press for the botched investigation and prosecution by leak would be denied.
Something to remember the next time a China scare comes around.