[Senate Hearing 106-1040]
[From the U.S. Government Publishing Office]
S. Hrg. 106-1040
CONTINUATION OF OVERSIGHT OF THE
WEN HO LEE CASE
=======================================================================
HEARINGS
before the
SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 27 AND OCTOBER 3, 2000
__________
Serial No. J-106-109
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
74-193 WASHINGTON : 2001
_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
------
Subcommittee on Administrative Oversight and the Courts
CHARLES E. GRASSLEY, Iowa, Chairman
JEFF SESSIONS, Alabama ROBERT G. TORRICELLI, New Jersey
STROM THURMOND, South Carolina RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan CHARLES E. SCHUMER, New York
Kolan Davis, Chief Counsel
Matt Tanielian, Minority Chief Counsel
C O N T E N T S
----------
WEDNESDAY, SEPTEMBER 27, 2000
STATEMENT OF COMMITTEE MEMBER
Page
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Bay, Norman, U.S. Attorney, District of New Mexico, Albuquerque,
NM............................................................. 2
Curran, Edward, Security Chief, Department of Energy, Washington,
DC............................................................. 2
Parkinson, Larry, General Counsel, Federal Bureau of
Investigation, Department of Justice, Washington, DC........... 2
Robinson, James, Assistant Attorney General, Criminal Division,
Department Justice, Washington, DC............................. 2
TUESDAY, OCTOBER 3, 2000
STATEMENTS OF COMMITTEE MEMBERS
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 36
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 35
WITNESSES
Richter, John, Scientist, Department of Energy.................. 37
Trulock, Notra, III, Former Intelligence Chief, Department of
Energy, accompanied by Larry Klayman, Counsel.................. 51
Vrooman, Robert, Former Counterintelligence Officer, Department
of Energy...................................................... 49
Wilkins, Ron, Computer Network Specialist, Los Alamos Laboratory. 63
Younger, Stephen, Scientist, Department of Energy................ 40
SUBMISSIONS FOR THE RECORD
Barreras, Lawrence, Senior Warden, Cornell Corrections, Inc.,
Santa Fe County Correctional Facility, Santa Fe, NM:
memorandum, December 10, 1999................................ 200
memorandum, January 4, 2000.................................. 210
Bryant, Daniel J., Assistant Attorney General, Office of
Legislative Affairs, Department of Justice, Washington, DC:
June 22, 2001, letter........................................ 75
letter to Senator Leahy, June 28, 2001....................... 278
Capps, Michael H., Deputy Director for Developmental Programs,
Defense Security Service, Department of Defense, Alexandria,
VA, letter to Senator Specter, June 25, 2001................... 268
Chronology of Significant Events, chart.......................... 68
Cline, John D., Freedman, Boyd, Daniels, Hollander, Goldberg &
Cline, P.A., letter to Robert J. Gorence, Esq.................. 216
Collingwood, John E., Assistant Director, Office of Public and
Congressional Affairs, Federal Bureau of Investigation,
Washington, DC, letter with enclosures to Senator Specter...... 93
Committee on the Judiciary, United States Senate, Washington, DC,
Executive Business Meeting:
October 14, 1999, summary and attachments.................... 301
November 17, 1999, summary and attachments................... 309
Cunningham, Charles J., Jr., Director, Defense Security Service,
Department of Defense, Alexandria, VA, letter, with attachment,
to Senator Specter, February 14, 2000.......................... 264
Curran, Edward J., Director, Office of Counterintelligence,
Department of Energy, Washington, DC, letter, with attachments,
to Senator Specter, January 31, 2000........................... 258
Department of Energy Chronology, May 6, 1999..................... 64
Department of Energy, news release:
August 12, 1999.............................................. 279
January 19, 2000............................................. 287
Deposition of Supervisory Special Agent Craig Schmidt, July 29,
1999........................................................... 99
District Court of New Mexico, news release, December 10, 1999.... 282
Failed Attempts by Wen Ho Lee to Enter LANL X Division After His
Access Had Been Terminated, table.............................. 72
Federal Bureau of Investigation, document, August 29, 1995....... 97
Federation of American Scientists, Washington, DC:
Affidavit In Support of a Search Warrant for Wen Ho Lee's
House, declassified FBI affidavit.......................... 78
Motion for Discovery of Materials Related to Selective
Prosecution, United States District Court for the District
of New Mexico, document appearing on FAS website:.......... 154
Declaration of Robert Vrooman................................ 197
Robert Vrooman, President Clinton's comments on Wen Ho Lee,
document appearing on FAS website.......................... 294
Freeh, Louis J., Director, Federal Bureau of Investigation,
Department of Justice, Washington, DC, letter to Senator
Specter........................................................ 87
Friedman, Gregory H., Inspector General, Department of Energy,
Washington, DC, memorandum, April 3, 2001...................... 250
Gallagher, Neil J., Assistant Director, National Security
Division, Federal Bureau of Investigation, Department of
Justice, Washington, DC:
letter to Senator Thompson, November 10, 1999................ 254
letter to Edward J. Curran................................... 89
Grindler, Gary G., Principal Associate Deputy Attorney General,
Department of Justice, Washington, DC, and Nicholas M. Gess,
Associate Deputy Attorney General, Department of Justice,
Washington, DC, memorandum and attachments, January 12, 2000... 217
Habiger, Eugene E., Director, Office of Security and Emergency
Operations, Department of Energy, Washington, DC, memorandum,
December 27, 1999.............................................. 207
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
letter to Attorney General Reno, October 8, 1999............... 253
Holscher, Mark, O'Melveny & Myers LLP, Los Angeles, CA:
letter, December 10, 1999.................................... 124
letter and attachment........................................ 203
Hoskins, Carlton, memorandum to Senator Specter, September 26,
2000........................................................... 74
Jennings, John P., Principal Deputy Assistant Attorney General,
Office of Legislative Affairs, Department of Justice,
Washington, DC, letter to Senator Hatch, October 25, 1999...... 255
Kalisch, Eleni P., Special Counsel, Office of Public and
Congressional Affairs, Federal Bureau of Investigation,
Department of Justice, Washington, DC, facsimile............... 90
Keifer, Richard W., Keifer Group Investigations Inc., Apopka, FL,
letter, with an attachment to Senator Specter, June 26, 2001... 272
Nuclear Weapons Restricted Data Downloaded by Dr. Lee Onto
Portable Tapes, chart.......................................... 73
Raben, Robert, Assistant Attorney General, Office of Legislative
Affairs, Department of Justice, Washington, DC:
letter to Senators Leahy, Hatch, Graham and Shelby, January
20, 2001................................................... 265
letter to Senator Hatch, January 19, 2001.................... 266
Robinson, James K., Assistant Attorney General, Criminal
Division, Department of Justice, Washington, DC, letter to
Senator Specter................................................ 88
Sanchez, John S., U.S. Marshal, United States Marshal Service,
District of New Mexico, Department of Justice, Albuquerque, NM,
letter to Lawrence Barreras.................................... 216
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania, letter to Attorney General Reno, September 18,
2000........................................................... 264
Steps Required to Down-Partition, Download, and Create Tapes,
chart.......................................................... 71
Tenet, George J., Director of Central Intelligence, Central
Intelligence Agency, Washington, DC, statement................. 249
Trulock, Notra, National Review article, July 31, 2000........... 290
United States District Court for the District of New Mexico,
Albuquerque, NM:
Response to Defendant Wen Ho Lee's Motion To Revoke Judge
Svet's Order of Detention.................................. 105
Memorandum Opinion and Order................................. 126
Response to Defendant Wen Ho Lee's Motion To Compel Discovery
on Issues Other Than Selective Prosecution................. 145
Renewed Motion of Dr. Wen Ho Lee for Pretrial Release........ 167
Plea and Disposition Agreement............................... 186
CONTINUATION OF OVERSIGHT OF THE WEN HO LEE CASE
----------
WEDNESDAY, SEPTEMBER 27, 2000
U.S. Senate,
Subcommittee on Administrative Oversight
and the Courts,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:03 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen Specter
presiding.
Also present: Senator Torricelli.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Senator Specter. Good morning, ladies and gentlemen. We are
proceeding at 9 o'clock this morning because the objections are
being raised about proceeding beyond 11:30, so we wanted to get
started a little earlier. And since this hearing was scheduled,
Senator Lott and Speaker Hastert have scheduled a meeting on
the appropriations bill for Labor, Health, Human Services, and
Education, a subcommittee which I chair, so I am going to have
to excuse myself shortly before 11 o'clock. And there is quite
a lot of ground to cover, so we are going to start now.
As you all know, this is, in effect, a continuation of the
hearing from yesterday, and we are going to be looking at a
fair number of issues. At the outset, I think it is important
to note the difference in issues between what Dr. Wen Ho Lee
did as to downloading and to the guilt which that evidence
shows and to which he has pleaded guilty, contrasted with the
kind of treatment which was afforded to him. Whether he was
treated fairly or not does not really impact on this guilt, and
we all know that in our society due process requires fair
treatment for those who are guilty of the most heinous
offenses.
We are going to want to pursue the details of this early
offer which was referred to by Judge Parker, which we got into
yesterday with Mr. Bay to an extent, to examine the specifics
as to what the differences were between what was offered pre-
indictment and what was obtained on September 13.
We are going to get into the details of why action was not
taken against Dr. Lee earlier, with the evidence of downloading
back in 1993 and 1994, and then what was found in April 1999
with the search warrant. Director Freeh testified about this,
saying it was a very complicated case and could not have been
acted upon until the indictment in December. We are going to
want to explore that in detail as to why not.
And then the elements of the offense, the question of the
intent to injure the United States, is something we are going
to want to take up in detail as to what constituted that, and
then the issue of the restraints, the manacles, the references
to the Rosenbergs, the erroneous testimony given, and an
inference which may arise--I say ``may''; I haven't reached a
conclusion on it--an inference which may arise as to pressure
to get Dr. Lee to plead guilty.
On our examination of the Dr. Peter Lee case, we had
evidence that the Government wanted a jail sentence there to
make him talk, put him in custody. And unless and until there
are some very solid reasons to explain the treatment for Dr.
Lee, that inference remains a distinct possibility. But that is
what these oversight hearings are about to try to determine.
So with that very brief introduction, we will proceed with
the witnesses, and we appreciate all of your coming. The
witness list has Mr. Edward Curran first, so we will start with
you. And in accordance with our practice, we are going to seek
to limit opening statements to 5 minutes, leaving the maximum
amount of time for dialog, questions and answers.
Mr. Curran, welcome, and the floor is yours.
Mr. Curran. Thank you, Mr. Specter. I have no opening
statement.
Senator Specter. Mr. Parkinson.
Mr. Parkinson. Mr. Chairman, as you know, the Director
submitted a lengthy opening statement yesterday, so I don't
intend to have an opening statement here, but I am happy to
answer any questions.
Senator Specter. Mr. Bay.
Mr. Bay. Mr. Chairman, I don't have an opening statement
either. As you know, the statement yesterday was a joint
submission between the Department and the FBI.
Senator Specter. Mr. Robinson.
Mr. Robinson. I have no opening statement. We are happy to
try to answer your questions, Senator.
Senator Specter. Let us start with the statement made by
Judge Parker on September 13, ``Before the executive branch
obtained your indictment''--he was speaking to Dr. Lee--``on
the 59 charges last December, your attorney, Mr. Holscher, made
a written offer to the Office of the U.S. Attorney to have you
explain the missing tapes under polygraph examination.''
Now, Mr. Bay, what more did you get on September 13 than an
agreement to explain the missing tapes with the check of a
polygraph examination?
Mr. Bay. If I could, Mr. Chairman, I would first like to
explain that Judge Parker qualified that remark at the
sentencing hearing because the lead prosecutor, George
Stamboulidis, corrected him, saying, you know, the Government
responded and it is not just like there is the December 10
letter and nothing else there in the record. And Judge Parker
admitted that there had been this exchange of correspondence,
so I want to qualify that first.
Senator Specter. What portion of the transcript are you
referring to now?
Mr. Bay. At one point, Mr.----
Senator Specter. Could you be specific?
Mr. Bay. I am sorry. I don't have the transcript in front
of me, but I could find the reference if you like.
Senator Specter. I would like that.
Mr. Bay. OK; if someone could provide me with a copy, I
will look it up for you.
But in any case, what we got in the September 13 plea
agreement was that the defendant admitted his guilt to a
serious felony. He pled to one of the counts in the indictment
which involved the downloading of the classified information in
an unsecure part of Los Alamos; that is, in the T Division, not
in the X Division where he had been a scientist.
Senator Specter. Did that count require as an element of
proof injury to the United States or aiding a foreign
government?
Mr. Bay. It did not, Mr. Chairman. It did, however, require
that he admit that he committed this act willfully and knowing
that it was in violation of the law. So, that was the intent
requirement for that count of the indictment.
So he admitted his guilt and, in addition, he agreed to
fully cooperate with the Government for a year-long period, not
simply to one proffer session. And more than that, the plea
agreement was structured in such a way that there were huge
penalties that could fall upon him if he lied. Put another way,
there were huge incentives for him to tell the truth.
The plea agreement is written in such a way that not only
does he give us this debriefing under oath over a 10-day
period, at least for 3 days over a 3-week period, but we can
also polygraph him.
Senator Specter. Well, you had a polygraph on the offer
pre-indictment, didn't you?
Mr. Bay. That is correct. But, you know, I also want to
point out that that offer did get withdrawn because once the
indictment came down, that offer was no longer on the table. We
counteroffered in a letter in early January, asking to do this
extensive pre-polygraph interview. The defense said----
Senator Specter. Was there any response for their pre-
indictment offer before indictment?
Mr. Bay. I don't think so because what happened--I mean, I
actually just don't know, but I do know that that offer did not
stay on the table. I know that----
Senator Specter. Well, Mr. Bay, the offer was made in the
context of trying to avoid indictment. So would it be
surprising that the offer would be withdrawn once the
indictment was returned?
The point I am coming to is a very direct one, and I think
that is the point Judge Parker made, and that is that in order
to try to seek the avoidance of an indictment, the defense was
prepared to do a fair amount at that stage. After the
indictment was returned, there had been a material change in
circumstances, so it wouldn't be surprising that that offer
would be withdrawn. So my question really goes to whether the
Government responded to that pre-indictment offer before the
indictment.
Mr. Bay. Just to clarify with respect to the portion of the
record where the court noted that there had been this exchange
between counsel, Mr. Chairman, that is on page 57 of the
sentencing transcript, lines 8, 9, and 10, where the court
notes, after Mr. Stamboulidis objects, ``Nothing came of it and
I was saddened by the fact that nothing came of it. I did read
the letters that were sent and exchanged.''
Senator Specter. Well, what in what you just read suggests
a difference between the portion of Judge Parker's statement
that I read at the outset?
Mr. Bay. Well, what it shows is that there was a response
by the Government, that it wasn't simply a case where there was
a letter sent on December 10 and the Government, you know,
never responded. And you have to keep in mind the history of
the discussions between----
Senator Specter. When did the Government respond?
Mr. Bay. The Government responded, I believe, in early
January.
Senator Specter. Well, that was after the indictment.
Mr. Bay. It was after the indictment, but my understanding
is that the defense took this offer off the table once the
indictment came down. They weren't willing to let their client
submit to a polygraph. They weren't willing to provide the kind
of proffer that we had been seeking all along.
Senator Specter. Well, I could understand that, but I come
back to the suggestion I made earlier as to a material change.
If Dr. Lee could avoid indictment, he was prepared to do
certain things. Once the indictment was returned, then he was
not prepared to do that.
I have just been handed a transcript which purports to be
at page 57 where the court says, ``Nothing came of it and I was
saddened by the fact that nothing came of it. I did read the
letters that were sent and exchanged. I think I commented one
time that I think both sides prepared their letters primarily
for use by the media, not by me. Notwithstanding that, I
thought my request was not taken seriously into
consideration.''
Did Judge Parker say anything beyond that which would
support your contention that the judge was really not faulting
the Government for not taking the deal pre-indictment which was
essentially the same that they got onSeptember 13, 2000?
Mr. Bay. I think in those comments there, the judge
realizes that the parties had discussed this issue and that
there had been this exchange of letters, but the----
Senator Specter. Well, this language that I just read back
to you--frankly, Mr. Bay, I don't see anything there which
undercuts in any way what the judge had said earlier that the
deal could have been obtained pre-indictment with an
explanation of the missing tapes and a polygraph.
Mr. Bay. But, Mr. Chairman, that December 10 letter does
not contain an offer to resolve the charges. All it does is to
say that he is willing to provide a proffer and take a
polygraph. But this was an illusory offer. You have to keep in
mind the context of the discussions.
Senator Specter. Well, was the judge wrong when he said
that the offer was to explain the missing tapes?
Mr. Bay. I don't believe that the judge was wrong, but--and
let me say this: I have got great respect for Judge Parker, but
I don't know if he was aware of all the discussions that had
occurred between the parties in the preceding 9-month period.
And surely he could not have been aware of the June 21, 1999,
meeting between Dr. Lee and his lawyers and lawyers of the
Department of Justice at the U.S. Attorney's Office in
Albuquerque.
Senator Specter. Was Judge Parker told about that after he
made this statement that he was saddened because the Government
didn't take up the offer for the explanation of the missing
tapes and a polygraph?
Mr. Bay. I am not aware--I don't think he has been told or
was told, but it would be very unusual to--you couldn't bring
the judge into any kind of plea negotiations before the case
was decided. You can't do that. That is barred under the
Federal Rules of Criminal Procedure, so we could not have
informed him.
Senator Specter. I understand that, and I wouldn't expect
you to. But when he faults the Government and he is about to
make a decision in the case as to what is going to happen to
Dr. Lee, at that juncture you could have told him that, what
happened in June.
Mr. Bay. I don't know about that, Mr. Chairman. We try very
hard not to do anything that would involve the judge in pre-
indictment discussions between the parties. And I think if we
tried to do that, the defense could argue that we were somehow
trying to taint the judge. I don't think we can involve the
judge in pre-indictment negotiations between parties.
Senator Specter. I quite agree with that while he is
presiding over the case. But at a time when he is making a
disposition of the case and sentencing Dr. Lee to time already
served and accepting a plea bargain, at that time you can tell
the judge what has happened if there is some material fact
which contradicts a strong stand he took on expressing his
disappointment that you hadn't taken the pre-indictment deal,
which is what he said you ended up with on September 13.
Mr. Bay. Mr. Chairman, if I had known that the court had
these concerns, I would have wanted to try to address them
before he made the statement. But it is not like he called the
parties into chambers and said, Government, could you tell me
what happened here because I am very concerned? I know that
there is the December 10 letter, but could you tell me
something about what happened in the preceding 9-month period?
Could you tell me anything about whether or not the Government
tried to get Dr. Lee to cooperate and what efforts the
Government made?
But the fact of the matter is he never said anything like
that. So when we were sitting in the courtroom at sentencing,
his comments came as a complete surprise to us. And we wish, we
dearly wish, Mr. Chairman, that we had had the opportunity to
talk to the court beforehand and to see what his specific
concerns were and to see whether or not we could allay them.
But we went through this mediation process, and part of
mediation is you resolve a case in the spirit of mediation. And
so to be honest with you, I was very much blind-sided by the
judge's comments.
Senator Specter. Well, Mr. Bay, you don't have to be
meeting in chambers and you don't have to have the judge making
a specific inquiry. You can say it in open court at that stage
of the proceeding, but let's go on with what you have talked
about.
You said you had a year to question Dr. Lee, that there
were penalties involved and there was a 10-day period. Is there
any other difference between what you got on September 13 and
what was offered pre-indictment?
Mr. Bay. Well, we also got some sworn proffers from him on
the day of the plea itself. We got two sworn proffers from him.
These were statements given by him under oath. We got the
promise of his cooperation for a year. We got the sworn
debriefings, 10 days' worth, over a 3-week period. We got a
year's worth of cooperation, and we got some penalties put into
the agreement to guarantee that he would tell us the truth.
Senator Specter. And what were the penalties?
Mr. Bay. Well, the penalties are pretty severe, Mr.
Chairman. If he lies to us, we can prosecute him for false
statements, perjury, and obstruction of justice. In addition,
we can move to set aside the plea agreement. And if that
happens, the remaining counts in the indictment that were
dismissed are reinstated.
Senator Specter. Mr. Bay, is there any reason to conclude
that you couldn't have gotten all of that--the year of
cooperation, the penalties, the 10-day briefing, the sworn
proffer--had you pursed the matter pre-indictment?
Mr. Bay. And he pled to a very serious felony, a felony in
the indictment.
Mr. Robinson. Mr. Chairman, perhaps I could answer, because
I was there and Mr. Bay wasn't in the early stages with regard
to the history. I think it is very important to see the
correspondence between counsel and the meetings that occurred
between counsel. And I think it is quite clear this December 10
letter that was sent was sent the very day that the grand jury
was returning its indictment, as Mr. Bay pointed out at the
hearing on yesterday. And it is quite clear that what was
envisioned by that letter was very, very limited, yes or no
polygraph to very limited questions without the ability of the
Government to test any of those things.
But the history of the discussions between Dr. Lee's
attorneys and the Government extended back for many, many
months, and included give-and-take which at various times
indicated that Dr. Lee was willing to provide this information
only in exchange for immunity, at times only in exchange for
possible pleas to misdemeanors.
This arrangement, in our judgment, that was worked out as a
result of this mediation with Judge Levy was neveravailable
before it was finally resolved as a result of very difficult
negotiations brokered by Judge Levy. But they were extensive
discussions, and I know that from early on the Government sought this
information from Dr. Lee pre-indictment; in effect, as the
correspondence between counsel indicated, pled for this information
from Dr. Lee because it was obviously critical to the prosecution
decision as to whether to proceed and what to proceed on.
There were extensive submissions by counsel that were
carefully examined by the Government. There were several
meetings, one in Albuquerque where Dr. Lee was in another room
and counsel back and forth in an effort to get at this issue.
And so the notion that this December 10 letter was something
that, A, was satisfactory or, B, that the arrangement finally
worked out as a result of these negotiations would have been
available before, in my opinion, based upon the discussions and
the correspondence, simply was not possible.
Senator Specter. Well, Mr. Robinson, what you have
described is jockeying which goes on where defense counsel
seeks to get the very best deal they can.
Mr. Robinson. Sure.
Senator Specter. That happens all the time and their
positions change.
Mr. Robinson. Of course.
Senator Specter. And the moment of truth--just like when
the jury comes back on the settlement of a case, the moment of
truth or the real pressure comes when the indictment is
returned. And that was the time that defense counsel was going
to make you their best offer, and at that time they made you an
offer which did not have all of the elements that you have
described about the year of cooperation and the penalties and
the 10-day briefing. But it did have, at least as Judge Parker
stated it, explaining the missing tapes. And one of the points
that Director Freeh made very emphatically yesterday was the
very high premium the Government placed on finding those
missing tapes.
Mr. Robinson. Right.
Senator Specter. And there had to be very substantial value
to finding them 10 months earlier, in December, as opposed to
the following September.
Now, you did get one additional element on a guilty plea.
Mr. Robinson. We got much more than that. The arrangements
with regard to this December 10 letter, which was a very short
letter which envisioned basically an up or down, yes or no, did
you destroy the tapes, did you share them with anyone else--
those were the things they were willing to deal with, and we
didn't get the details which we had numerous discussion about,
about the consequences of going forward, the ability of the
Government to verify these things, the ability to deal directly
with Dr. Lee.
These were all subjects of extensive discussion, and the
correspondence, I think, speaks volumes about the efforts of
the Government. And you are quite right. Defense counsel
obviously tries--to the extent that they can, they would like
to get immunity. They don't want their client subject to
additional exposure.
But what you have in this situation is if, during the
debriefing process, Dr. Lee provides information that is
false--and we are going to obviously do everything we can to
verify everything we learn and to probe all of the elements of
it--he can be right back to where he was before the plea, the
way this worked.
I am confident--and you can ask Mr. Holscher if he comes
here to testify--that this was not an arrangement that they
were ever willing to engage in. And we had extensive
discussions in an effort to try to get this information,
obviously, which was critical information.
Senator Specter. Well, we will ask Mr. Holscher and Mr.
Cline. We have them tentatively scheduled to come before the
subcommittee on October 11. I think we have pursued this
question about as far as we can usefully.
I have a question which remains as to your----
Mr. Robinson. I want to make one other point here. The
December 10 letter also makes a representation we know not to
be true about the tapes never leaving the X Division, and this
is the dialog that has been back and forth in which we have
sought information, got representations. I mean, counsel are
doing the best they can, but they are obviously doing it based
upon the information their client provides.
And so we had very serious concerns about the reliability
of the information that we were getting, and I think it is
important to evaluate the whole series of correspondence and
the meetings that occurred. And I can tell you I sat in one
meeting with counsel for Dr. Lee in which I said we want to
learn everything we can about Dr. Lee's intent. We are not
interested in charging Dr. Lee with a crime that he didn't
commit, and we want to know whatever you can provide on that
subject.
And they obviously made--and it is understandable--a
tactical decision that they didn't want to share certain
information with the Government. They wanted to save it for
trial, and we weren't able to work this out and the stakes
obviously were high to their client. I think ultimately it took
a very skillful effort by Senior Circuit Judge Levy between the
parties to come up with this final agreement which I think does
give us the best hope for getting the kinds of answers that
will address the national security concerns that we all share
here about these tapes, their whereabouts, and whether they
were exposed to anyone else. And that has obviously been a
critical matter.
The correspondence makes it clear and the meetings make it
clear that this was the $64,000 question about where these
tapes--why they were created, where they were, did anyone else
see them. If they were destroyed, as represented, how were they
destroyed, how we could verify that. Those are all questions
that I think we all are very interested in knowing the answer
to.
Senator Specter. Well, as I had said earlier, I don't think
it would be useful to pursue the matter beyond this. I do not
see the import of a yes or no. This is a negotiation and the
defense offer--it seems to me you had the opportunity to come
back and say no on your terms, but if we get A, B, C, D and E,
we will agree with it.
Mr. Robinson. We had been doing that for months and months.
I mean, that dialog had occurred. It continued to occur.
Senator Specter. Well, that is true. Now, I am repeating
myself, but on the day of indictment, it is all different. But
at any rate, the judge, Judge Parker, who is right there--we
are going to have Mr. Holscher and Mr. Cline, and we will ask
them the questions you have posed.But Judge Parker lays it
rather flatly.
Mr. Robinson. Judge Parker didn't have the information
about the meetings, the correspondence, and the dialog. Just as
Mr. Bay points out, Judge Parker wasn't involved in this
process. It was Judge Parker who, in effect, urged the parties
from the time he got into this case to engage in mediation to
resolve the issues of both bail and disposition of the case.
And, in effect, what happened is he encouraged us to do
this. We did it in good faith. We achieved a result which we
think will advance the national security. And, frankly, with
all due respect to Judge Parker, the notion that he put us in
that position and encouraged us to do it, we do it in good
faith and reach a result--and he made a comment, I think,
without the benefit of all the information concerning the
efforts that had been made by the Government, which are
extensive, to try to get answers to these questions--extensive
meetings, extensive correspondence, extensive discussions.
And it wasn't easy even when we got the parties together.
These negotiations broke down on a number of occasions. We
learned things at the 11th hour that were very disturbing to us
about copies. This was something that was difficult and
carefully negotiated in good faith, and as a result of Judge
Levy's efforts we achieved a result at the end that we think is
in the national interest.
Senator Specter. I understand that. That is essentially
what Mr. Bay said. But when Judge Parker makes the statement
that I am sad and it could have been resolved a long time ago,
that was an opportunity for the Government to stand up and say,
no, it couldn't have, Judge, and to give all the reasons you
have given.
I have been at a few of these proceedings, and when a judge
says something which is material and is bothering him and he is
wrong, then the Government tells him so.
Mr. Robinson. Well, he said that after the deal had been
made. The agreements had been signed. We were putting this on
the record in court. There was a meeting, as I understand it--
--
Senator Specter. Well, the judge had to accept it, didn't
he?
Mr. Robinson. Well, he didn't have to accept it, but----
Senator Specter. Well, he had to make a ruling as to
whether he would accept it. Of course, he did.
Mr. Robinson. Sure, he did. At the end of the day, he did.
Senator Specter. He had to accept it if it was going to be
final. So this is a proceeding to get the judge to say yes or
no to the plea bargain.
Mr. Robinson. Right, and we were in favor of the plea
bargain at that point. And he did approve it, and these were
statements that he made, frankly, afterwards.
Senator Specter. OK, Mr. Robinson. Why not say to the judge
all the explanations you have just tendered here when he says
he is sad and, in effect, you could have gotten the same deal
last December? Why not tell the judge he is wrong? This is not
an immaterial factor. Why not tell him?
Mr. Robinson. Well, I wasn't in the courtroom at the time,
but I have been in courtrooms where I have sat there where
judges have ruled and they are making these comments for the
galleries at this juncture. And I think that is what was
happening, but the Government, as I understand it----
Senator Specter. You think Judge Parker was making that
comment for the galleries?
Mr. Robinson. Galleries, including the Government,
obviously. He made these statements in court----
Senator Specter. What do you mean, ``the galleries,'' Mr.
Robinson?
Mr. Robinson. Well, obviously he was making this public
statement about this matter. I think the fact that Judge Parker
made this statement was a little unusual under the
circumstances, his comments with regard to this matter. I think
it was a little unusual.
Senator Specter. Well, then he went beyond that when he
talked about an apology. If he was moving from a factual basis
where he was incorrect, the Government had a responsibility to
correct him, to say so.
Mr. Robinson. Well, I do understand that the Government has
had a meeting with Judge Parker after this matter and has had
discussion of a number of his comments in his chambers.
Mr. Bay. Mr. Chairman.
Senator Specter. Well, that doesn't bear on the underlying
question as to whether the Government could have gotten the
same deal in December if you had pursued it. That doesn't bear
on that at all.
Mr. Robinson. I don't have any doubt in the world--and the
record, I think, demonstrates it to a fare thee well--that the
Government could not have gotten this arrangement any time
before it was negotiated in this very extensive way over this
very extensive period of time at the request of Judge Parker.
Senator Specter. Well, our next step is to talk to Mr.
Holscher and Mr. Cline, but let me move on to another subject,
and that is the subject about----
Mr. Robinson. Senator, I am sorry to interrupt, but I just
want to make sure--I do understand, I am told--I wasn't there--
that the attorney did object or stand up to object in
connection with this. Perhaps Mr. Bay can enlighten us on your
point of whether the Government tried to say anything in
response to this.
Senator Specter. We would be interested to hear about that,
Mr. Bay.
Mr. Bay. That is correct, and this is in the record, sir.
Mr. Stamboulidis did stand up----
Senator Specter. What page are you on so I can follow you?
Mr. Bay. Page 57, lines 4 through 7. On line 1 on page 57,
Judge Parker says, ``At the inception of the December hearing,
I asked the parties to pursue that offer made by Mr. Holscher
on behalf of Dr. Lee, but that was to no avail.'' Mr.
Stamboulidis stood up and objected. He said, ``Your Honor, most
respectfully, I take issue with that. There has been a full
record of letters that were sent back and forth to you and Mr.
Holscher withdrew that offer.''
So we did attempt at the hearing to correct the court's
impression.
Senator Specter. But then the judge goes on to say,
``Nothing came of it and I was saddened by the fact that
nothing came of it. I did read the letters that were sent and
exchanged. I think I commented one time that I think both sides
prepared their letters primarily for use by the media and not
by me. Notwithstanding that, I thought my request was not taken
seriously into consideration.''
So when Mr. Stamboulidis makes the comment, the judge comes
right back and doesn't change his position.
Mr. Bay. But, Senator Specter--and I know you have the
correspondence that we produced for your committee, and when
you go through it, for example, there is a letter dated August
4, 1999, where the U.S. Attorney at the time says, ``I assure
you that I have absolutely no desire to prosecute an innocent
man. I have used what tools prosecutors have to try to gather
all the facts. Those facts establish your client's guilt. If
additional facts that only he can provide would explain his
actions and point to his innocence, I would sincerely like to
know that before embarking on a course of action that will have
a profound impact on many people. Once again, I extend to you
the invitation to have your client tell his side of the
story.''
And it continues, ``If you let me know soon whether he will
accept the invitation, I can be available for his interview or
grand jury testimony with very little advance notice. I will
not present the matter for indictment this week, but I simply
cannot delay it indefinitely.''
These were the kinds of communications that were going back
and forth. The Government all summer long kept asking for the
participation, and this was even after the June 21 meeting
where Dr. Lee gets caught in this misrepresentation. A month
later, you have got this letter dated September 3, 1999, where
the U.S. attorney at the time asks for detailed information,
``succinct, verifiable, factual information responding to my
concerns by Monday, September 13, 1999.''
And we know that proffer was never provided. But what we
asked for there was information regarding the tapes. ``We know
that Dr. Lee copied both classified and unclassified
information onto 6150 tape cartridges. We know that he didn't
have a tape drive on his computer. We found some of the
unclassified cartridges in his T Division Office when it was
searched earlier this year, but we do not know what happened to
the tapes containing classified information. We want to know
the complete chain of custody for the tapes from the moment
they were created until today. We want to know how and where he
created them, where they have been physically located over the
last 5 or 6 years, who other than Dr. Lee knew of their
existence, and why no one in the X Division was told about the
tapes. We want to know whether he gave the tapes to a third
person. If he did, we want to know to whom, when, where, how,
and why. If the tapes were lost or destroyed, we need those
details as well.''
This is indicative of what we were trying to learn from Dr.
Lee. This was indicative of the kind of cooperation we sought
from him in the pre-indictment period, a period which lasted
for 9 months. He had 9 months to try to cooperate with the
Government, and at the last minute, on the day that the
indictment is returned, he is sending us a fax saying, you
know, stop the train, I am ready to talk now, where even that
letter contains a misrepresentation, as Mr. Robinson pointed
out.
Senator Specter. Well, when you talk about a prosecutor not
wanting to go after an innocent man in the opening part of your
statement, I can understand that. It doesn't bear on the
question of the tapes. When you read in detail this letter from
September 3, 1999, there is no doubt that U.S. Attorney Kelly
is posing the questions which you want answered. But all of
that, with all respect, begs the question as to whether the
offer that the defense made right before the indictment might
have been expanded to all of the items that you have explained
here today, all of the reasons you have given. And the judge's
statement still stands.
To repeat for the third time, I think we have explored this
to the extent we can. And we will pick it up with Mr. Holscher
and Mr. Cline, but the dominant statement remains the one on
the record by the judge that you could have gotten this deal a
long time earlier.
Let me move, as I had said earlier, to the question acting
on the downloading, and let's pick up with you on this, Mr.
Curran. There were indications that the Department of Energy
had noticed massive downloading by Dr. Lee back in 1993, and
then again in 1994 there was extensive downloading noted by the
Department of Energy by Dr. Lee.
What were the specifics of that downloading?
Mr. Curran. Sir, I have no knowledge of that downloading.
My tenure at the Department of Energy started in April 1998.
Senator Specter. Well, does anyone here know about the
details of that downloading, Mr. Parkinson?
Mr. Parkinson. We at the FBI learned about the details of
the downloading in 1999 through the detailed forensic work that
we did last year.
Senator Specter. When in 1999, Mr. Parkinson?
Mr. Parkinson. It began primarily in March with the search
of his office and then continued from that point forward.
Senator Specter. Well, Mr. Curran, we need somebody here
from the Department of Energy who can explain that because the
records show that the Department of Energy did know about it.
They also show that the FBI did not know about it, and that is
a question we have.
But let's move to April, Mr. Parkinson, a question which I
posed to Director Freeh yesterday. There were a lot of
activities by--well, backing up to December 21, where internal
memos show that Secretary of Energy Richardson had contacted
the FBI--and I believe Director Freeh had expressed concern
about the pending release of the Cox Committee Report--what
were the specifics of that, Mr. Parkinson?
Mr. Parkinson. I don't know the specifics of that, Mr.
Chairman, and maybe one of my colleagues can assist me in that,
if you could indulge me.
Senator Specter. Take your time, Mr. Parkinson.
Mr. Parkinson. We will explore that and get back to you. I
have a very extensive chronology of all relevant events here.
There is no indication in my briefing materials that there is
any kind of correspondence between Secretary Richardson and the
Director on the 21st.
Senator Specter. Well, there is a memo from Mr. Craig Smith
to the Director dated December 21, 1998, which references
Secretary Richardson's concern about the pending release of the
Cox Committee Report.
Mr. Curran. Sir, can I perhaps add to that?
Senator Specter. You may.
Mr. Curran. If it is the conversation between Secretary
Richardson and Director Freeh, we had planned action against
Mr. Lee upon his return from Taiwan which led up to the
ultimate interview and polygraph of Mr. Lee on December 23.
I remember being beeped in Washington, DC, by Mr. Kilroy,
who is the Unit Chief of the China Section, wherethis activity
that we were planning to do which was fully coordinated with the FBI
headquarters in Albuquerque was given in a note to Director Freeh.
Director Freeh had a question on that note. My conversation with Mr.
Kilroy resolved that issue.
That same day, I saw Secretary Richardson and he told me he
talked to Director Freeh and everything was on track for
December 23. So if that has something to do with it, I know
that conversation did take place.
Senator Specter. That conversation occurred on December 21?
Mr. Curran. It would have been shortly before the activity.
I know it was around that time. I can't remember the specific--
--
Senator Specter. Well, the memo from Craig Smith to the
Director specifies concern about the pending Cox Committee
Report.
Mr. Curran. Well, I have no knowledge of the Cox Committee
Report. I know in my conversations with the unit at that time
there was an issue with Director Freeh. He misunderstood the
information in there. That was immediately corrected.
Senator Specter. What did Director Freeh misunderstand?
Mr. Curran. Again, I don't like to speak for Director
Freeh, but it is my understanding at the time that when the
note went up to Director Freeh explaining what was going to
happen on December 23, he misunderstood the note, indicating he
did not want DOE to take that action. That then was confirmed
and later went up----
Senator Specter. He did not want DOE to run a polygraph?
Mr. Curran. There was a whole series of events that were
going to take place. My understanding is he misunderstood that
the unit was agreeing with it. He thought they were disagreeing
with that activity, and that was the misunderstanding. That was
immediately clarified.
Senator Specter. When you say the unit, you mean the FBI
unit?
Mr. Curran. Yes; the FBI unit that was running this
investigation, yes. And that was immediately clarified, and I
spoke to Secretary Richardson upon the return that day. He said
he had spoke to Director Freeh and everything was fine. I don't
know of any conversation about a Cox Report conversation.
Senator Specter. The polygraph was taken on December 23.
The reports are, Mr. Parkinson, that there was some difficulty
between the FBI and DOE on having access to the tapes. What did
happen with respect to that?
Mr. Parkinson. There was some difficulty, Mr. Chairman, and
particularly on getting timely access to the results of the
polygraph. And, frankly, I think the Director has indicated
that this was the place where the FBI should have pushed
harder.
We didn't get the polygraph results until late January from
DOE, all of the results that could be analyzed by an
independent polygrapher. And so several weeks went by after the
December 23 contractor polygraph done by the DOE contractor
before our polygraphers could independently assess the results.
And I think there was probably some brandishing on both
sides, but I think we have stated, and I will state again, we
should have pushed harder to make sure that we got those in a
more timely fashion. And when we did get them, they were
immediately reviewed by our own polygraphers as well as another
independent polygrapher at DOE's initiative, and that, of
course, led to the results that we have testified about that
indicated that he did not pass the polygraph. At best, it was
inconclusive.
Senator Specter. When the results announced by Wackenhut,
who ran the polygraph on December 23, 1998, were disclosed,
there was, in fact, a decision by the FBI field office to close
the investigation, right?
Mr. Parkinson. It was under consideration. They had not
reached the decision.
Senator Specter. Well, had they at least recommended the
investigation be closed?
Mr. Parkinson. They had recommended consideration of
closing it following the January 17 interview with Dr. Lee.
That, of course, was a snapshot in time which changed
dramatically when we actually did see the Wackenhut polygraph
results and did the independent analysis.
Senator Specter. Why have someone like Wackenhut run the
polygraph when the FBI is so much more proficient at it?
Mr. Parkinson. I think that is a fair question, and we were
working jointly with DOE. We knew that they were going to do
this, and on the ground they concluded that we would permit DOE
to go ahead and conduct the polygraph.
Mr. Curran. Sir, could I add to that, because I am the one
who made the decision to polygraph the person? My position as
an FBI employee assigned to DOE as the counterintelligence
person--I was obviously very, very concerned about this entire
case that was being worked. Through coordination with the FBI,
the interview that we conducted was a cursory interview. It was
an interview to suspend him from access to the X Division upon
his return from Taiwan.
I asked my people to ask him if he would voluntarily take a
polygraph. It would be noncoercive, nonthreatening, and the
bottom line in all this activity was not to compromise the FBI
investigation in this thing. The FBI investigation was coming
to a conclusion. I had an immediate decision. This person had
just left the country. He had been out of the country for 4
months. He is the subject of a full FBI investigation. There is
good indication that he was aware of the FBI investigation.
I did not know where he was, who he was talking to. I had
assumed the worst at that point, and that is when we made the
decision that upon his return he would not have access to the X
Division. And we suspended his clearance without any prejudice
whatsoever. Because the FBI was going to come in and do their
interview and polygraph, there was a good likelihood that he
could have turned down a polygraph for the FBI because you have
brought it to a different level at this point.
I had asked that he be polygraphed so if that did occur
that I have some idea whether this person is telling the truth,
not telling the truth, whatever, and not faced with a problem
where I have a significant breach in security and I have no
clue where it was coming from.
Senator Specter. Well, let's move ahead here to----
Mr. Parkinson. Mr. Chairman, if I might, I just want to
quickly add one point. There was a very good investigative
reason to allow the DOE polygraphers to do the initial
polygraph, and that is we were concerned that eventhough there
was talk about the investigation, we didn't have reason to think that
he knew very much about what we were doing.
And the polygraph on the 23rd coincided with his return
from foreign travel as well as a five-year reinvestigation at
DOE. So in an effort to be nonalerting to the extent that we
could, it made sense to do it in the ordinary course. And, of
course, if the FBI had come in and done it, that certainly
would have been more alerting.
Senator Specter. Well, OK. You have the December 23rd
polygraph. You don't get the results. You have conceded that
you should have been more aggressive; faults on both sides;
polygraph incorrectly read. You finally found out about it on
January 17 that he did not pass the polygraph, or at least
inconclusive, but the indicators were that he did pass the
polygraph.
Then Dr. Lee, without going into the details--we are going
to run out of time and I want to yield in just a minute here to
Senator Torricelli, who has consented to my questioning beyond
our customary 5-minute period. A lot of erasing by Dr. Lee. He
is not terminated until March 8, 1999. A search warrant is not
obtained until April. In April, you go in and you find the
diary that they testified about yesterday, so you know that
there is a lot of downloading which he has done at that time.
Now, it takes from early April 1999 until December 1999 to
bring an indictment, an indictment which carries a life
sentence, and a request to the judge that he hold this man in
solitary confinement. We will get into the details of that
later.
I understand it is a national security case and I
understand there are a lot of factors to be considered, and I
didn't have the chance to get into the details with Director
Freeh yesterday. But why does it take from early April to the
end of December when you have a matter where the Government
contends there are crown jewels involved and that Dr. Lee can
transmit this information to someone else and the most
extraordinary steps are taken to stop him from talking to
anybody, including his wife? What is the justification? Could
that not have been expedited?
Mr. Parkinson.
Mr. Parkinson. Let me begin, and my colleagues can add to
this, but as the Director pointed out yesterday, which is
absolutely accurate, this was an extraordinarily complicated
case to put together. I think we knew the broad outline in the
spring after we did some initial forensic analysis, but the
forensics and the working with DOE to figure out what, if
anything, we could expose in a public trial was an
extraordinarily complicated and difficult process.
Senator Specter. Well, how long did the forensic evidence
take?
Mr. Parkinson. The forensic examination continued for well
over a year. Even after the indictment, we continued to do
forensic work.
Senator Specter. Well, you didn't have the meetings with
Mr. Berger and the other principals until when, early December,
late November?
Mr. Parkinson. December 4, 1999.
Senator Specter. December 4. What I would like you to do,
Mr. Parkinson, without taking the time now is to give the
subcommittee a detailed chronology of what you did. We want to
know exactly what you did and how long it all took.
I am not unfamiliar with criminal investigations, and
neither is Senator Torricelli or Senator Sessions or the others
on the subcommittee. We want to know what you did and why it
took so long to have this emergency, to confine Lee the way you
did.
I am going to come back to the classified information Act,
CIPA, and others, but let me yield at this point to my
distinguished colleague, Senator Torricelli.
Senator Torricelli. Thank you, Mr. Chairman. I am afraid I
am a little under the weather, so you are all going to be
spared the full extent of my interest in the case. But let me
try for a few minutes to do the best that I can.
Yesterday, Senator Leahy noted that many people on the
committee were in the extraordinary position of having been
critical some months ago that the Government was not
sufficiently aggressive in dealing with this case and now we
return to be critical that the Government was too aggressive in
aspects of the case. I am one of those people.
Initially, in what I now regard as an unfortunate exchange
with the Attorney General in private session, I was very
critical that a wiretap was not granted in dealing with Dr.
Lee. While my tone may not have been appropriate, I believe my
conclusion was. It should have been granted, and I believe the
FBI should have put greater resources on the case. In
hindsight, I think with regard to the initial investigation of
Dr. Lee almost every division of the U.S. Government at every
level of responsibility probably would have handled the case
differently. It is not given to us to do that again, but to
learn from the experience.
But now I return with a different perspective in what is a
remarkable bipartisan concern for how the case was handled
after Dr. Lee was detained and prosecuted, and what I think has
touched an extraordinary raw nerve in the country. I do not
believe from my own cursory review of the evidence that Dr. Lee
was innocent. Even if you accept the single charge to which he
pled--it is serious, it should be dealt with seriously and the
Government should respond to it seriously--I am not at all
convinced that that is all that he is guilty of. Nor do I have
much sympathy for the fact that he was vigorously prosecuted
and pursued. The anecdotal evidence suggests inappropriate
contacts. The consequences to the United States are so enormous
that I think a vigorous prosecution was warranted.
But let me get beyond the prosecution to my new concerns,
those I amply stated in the past when we revisited this case
with concern that the Government wasn't dealing with it
sufficiently, to what is now a remarkable undercurrent in this
Congress.
I will begin it with a friend of mine who is a senior
official at the Justice Department who went recently to a
conference of young prosecutors and returned saying he was
unnerved and concerned that there was a ``win at any cost''
attitude, that sometimes the Constitution seemed like an
inconvenience, a sense that the Government held a monopoly on
truth, and that the professional boundaries of our profession
and the traditions of the Justice Department were not respected
as they might have once been respected.
Dr. Lee, to me, is not a terribly sympathetic figure, given
some of the things that he even now has admitted that he did.
But that shouldn't change how he is approached by the
Government. There are several things about this case that are
inexplicable and should have consequences.
First, Mr. Parkinson, I do not regard a citizen lyingbefore
a court of the United States an an official of the United States lying
before a court of the United States on the same scale. The Government
being untruthful and misleading is not a threat to a case, but to our
entire system of justice. The people of the United States have a right
to expect that, without exception, the Government will be truthful and
accountable when under oath and dealing with a case. Sometimes, we
forget this is not the Department of Prosecutions; it is the Department
of Justice. The only Government stake in the outcome is fairness, not
the scorecard.
And so when I conclude my opening remarks, I would like
your response to how the Bureau intends to proceed in this
individual case where it appears by statement of a Federal
judge that he was not dealt with forthrightly, if not
truthfully. That matters.
Second, Mr. Robinson, it is not enough that we regard
ourselves as a civilized Nation because we do not force things
under people's fingernails if we simply replaced it with new,
sophisticated methods of using incarceration as a means of
intimidation. Incarceration of a person who has not yet faced
justice is to prevent flight, or the damaging release of
information in his case. It is not to psychologically break an
individual, put him in untenable circumstances so that he might
admit to something that he did not do or otherwise wear upon
him. That is, in my mind, unconscionable against a guilty
person, no less one who has not yet had a case proven against
him.
Yesterday, this was reviewed at length. We need not do so
again, but I think the simple truth is there is not an adequate
explanation for keeping the lights on in a cell all hours of
the night. There is not a reason for shackling an individual in
these circumstances, in private moments, within a jail, given
his history. There is not a reason to deny reading materials or
to not be more accommodating with family visits. There are
bounds of reason.
If I thought that Dr. Lee was the only person now facing
justice who dealt with these circumstances, I would be
concerned, but I would think a lesson had been learned and we
would move on. But I return to my friend who went to a Justice
Department conference, to be shaken himself. These tools can be
misused. This is extraordinary power.
My sense increasingly of the Justice Department is that it
is run from the bottom up, not the top down, by people with
lesser experience who, like all of us in early stages of life,
have excessive enthusiasm for our objectives rather than the
wisdom of experience and age. Some of that, I believe, is
involved in these circumstances.
I find this a difficult case. I find myself like anyone
conflicted, because I believe that Dr. Lee did a great
disservice to the United States. But it is not Dr. Lee I fear
alone. You can be in law school no more than a few days, in
your first lessons on the American Constitution, when you
discover to your great surprise that the American Constitution
seems primarily designed to protect the American people from
the American Government. The moment we begin to take some of
these restraints less seriously, we are changing the nature of
our country. That, Mr. Robinson, is my major concern coming out
of this case, and I am concerned about it.
That leads to something I have never understood about the
Department, and it is really the question I ask of Mr.
Parkinson. If a citizen of the United States were to go before
this Federal judge and lie, I understand the consequences. They
would be prosecuted, and they should be.
I understand in private industry, or even in American
politics, if you wage an effort and you fail and you are found
to have dealt with it inappropriately, the consequences are on
you professionally. I don't understand what happens in the
Department. There were enormous misjudgments here by line
prosecutors. A Federal judge asked that the circumstances of
Dr. Lee's confinement be altered. It did not happen for 9
months. What are the professional consequences of this within
the Department to ensure that people really respect the
guidelines of the Department, and respect you and Ms. Reno?
I know you fairly well. I know Ms. Reno better. If someone
had told you that a Federal judge had said, alter these
circumstances of confinement, it would have happened that
minute. Somebody didn't. In this Department, how does that
work? What are the consequences of someone who didn't bring
that to your attention and didn't respect the judge and did
misuse that power, misused an enormous power, admittedly not
putting anything under anybody's fingernails, but using a 21st
century version of it?
Those are my concerns, and at this point I would like to
open it to Mr. Robinson and Mr. Parkinson to at least answer
specifically the questions I posed, if not the general
proposition of what I presented.
Mr. Parkinson. Let me begin, Senator Torricelli, since the
first question related to our agent, and I assume you are
talking about Agent Messemer who testified, the case agent on
this case. I think it is very critical, in fairness to everyone
at the outset, to put this in proper context.
He did not say he lied. The judge did not say he lied. And
even though it is being portrayed in some press accounts as he
is a perjurer, that is simply not the case, at least not at
this stage in time. He said he made an honest mistake. The
judge did not take issue with that characterization at any
point in these proceedings. I think it is important to keep in
mind that he was dealing with enormously voluminous amounts of
material. He was on the stand for probably literally hours and
he made a mistake, and that is what he says.
Now, it was an important mistake and it is something that
we take absolutely seriously. The Director emphasized that
yesterday. It had a consequence to this case. It undermined the
prosecution because even if it was an honest mistake, it was on
an important fact and it undermined the credibility of the lead
case agent. So I don't want to minimize the conduct and the
mistake that he made. But I think it is fair to him, in
particular, to let this play out and see what the conclusion
is.
Senator Torricelli. What were the judge's operative words
in characterizing his testimony?
Mr. Parkinson. The judge--and maybe Mr. Bay can help me
with the transcript itself, but he, as the Government pointed
out----
Senator Torricelli. I think the word was ``misled,'' was it
not?
Mr. Parkinson. Mischaracterization or erroneous testimony.
Hold on. I can probably lay my finger on it. This is from the
judge's order: ``During his recenttestimony, Agent Messemer
admitted that incorrectly testified earlier.'' That was the phrase that
he used.
Senator Torricelli. Admittedly, Mr. Parkinson,
``incorrectly testified'' is this side of a lie, but it is on
the other side of what is acceptable by a representative of the
U.S. Government.
Mr. Parkinson. Well, even representatives of the U.S.
Government sometimes make mistakes. But this is an important
thing, and for the lead case agent he should have had that
right. I don't think there is any question about it, and nobody
is shrinking from that. And we are following up. This has been
referred for investigation, not by the Criminal Division at
this stage but by the Office of Professional Responsibility,
which is----
Senator Torricelli. Within the Bureau?
Mr. Parkinson. Within the Bureau. We take this very
seriously, and I don't quarrel at all with your comments about
the nature of the Government testimony and agents of the U.S.
Government. It is qualitatively different for any Federal agent
of any sort, or Federal officer of the court, to make any kind
of a false statement before the court. While we ought to take
it seriously even if it is a citizen who is not a Federal
employee, it is qualitatively different and we recognize that.
I will say this, that Director Freeh has had many
initiatives since he became Director, and I can't think of any
initiative that has received more attention from him than
ethics. He has incorporated ethics training at Quantico, and
our entire training system is devoted in large part to the
teaching of ethics and devotion to the Constitution, and to
demonstrate to everybody who works for the FBI that the process
is more important than the result.
Sometimes, bad guys get away even, but that is no reason to
shade testimony, or in particular obviously it is not any
excuse to make any calculated misrepresentation. But I think it
is important, having said that, for the process to play out. I
know Agent Messemer has been condemned in a lot of quarters as
a liar, and I think that is flatly unfair to him and I think we
need to keep that in context, and we will see how that plays
out.
Senator Torricelli. I think that is helpful. I also agree
that I think Mr. Freeh has brought a new level of
professionalism to the Bureau, and I think that is admirable. I
nevertheless simply leave this exchange with the thought that I
don't know this agent. He may have done great service to our
country for which we would be grateful, but we also, like the
law itself, administer the Government by precedent. And the
precedent of how this case is dealt with is important.
He should not be made an example of if he is innocent or if
it was an honest error, but I forget the operative word again--
misstatement or mischaracterization, whatever the operative
word may have been, is also not an acceptable standard, to
which I know you agree.
Mr. Robinson.
Mr. Robinson. Well, first of all, let me fully agree with
your statements about the fact that Federal prosecutors have
enormous power, and with that comes enormous responsibility.
And I think we have an obligation to continue to remind
particularly new prosecutors that in appropriate cases a
declination, saying no, frankly, to our friends occasionally
from the FBI on intrusive investigative activities if there is
a feeling that there is not probable cause--those are
obligations that Federal prosecutors have. It is something that
I feel strongly about.
I have Justice Sutherland's quotation from Berger v. United
States in my office about the extraordinary role of the Federal
prosecutor. I think we have to continue to try to make it clear
that a ``win at any cost'' attitude is not the kind of attitude
the American people want in their prosecutors, although I must
say occasionally with the feeding frenzy that occurs on high-
level, sophisticated cases, you know, the pressures are there.
And I think that we have to be vigilant at all times with
respect to it, and that message needs to come down.
Winning cases is not unimportant, but doing the right thing
is more important, and we need to remind people of that and get
the message out among the U.S. Attorney community and Federal
prosecutors as well. And I think most Federal prosecutors
believe that, believe it strongly. And when we have exceptions
to it, I think they need to be dealt with, and dealt with in a
way that makes it clear that that is the message.
Senator Torricelli. That is a little bit of what I wanted
to understand. This is, after all, an oversight committee, not
an investigative committee, and it is part of what I wanted to
understand about the Department. In fairness to the line
prosecutors involved, I will not raise their names or
circumstances, but a series of errors are made, allocations of
resources. A case collapses on what I think should have been
the full impact based on the evidence that I have seen. A judge
is angered and believes he was not dealt with honestly. There
were real mistakes of judgment. They can be made by anybody.
Here, they are compounded to enormous national consequence,
undermining confidence in the Department, and it cost an
important prosecution.
Without speaking of any of the individuals, how do you as
the head of a division of the Department--is this just dealt
with by notations in a personnel file? How does this impact a
person's career? The seriousness with which a person handles
their responsibilities in the future--other prosecutors in the
Department, I am sure, are watching about the accountability of
employees in the Department when they make mistakes of this
magnitude.
Mr. Robinson. I think it is very important, however, for us
not to do here what we are urging young prosecutors not to do.
I mean, we are at a stage here where I think that we need to
fully understand the facts, and there have been facts thrown
around, it seems to me, including facts about the detention
that are----
Senator Torricelli. I agree with that. That is why this is
a theoretical question. I am not applying to anybody.
Mr. Robinson. Right; well, obviously, what all lawyers have
and Federal prosecutors have is their reputation with Federal
judges, with the defense community, with the public, with their
supervisors. For me, that has always been enough, and I think
for most lawyers it is enough. But that isn't where it stops.
Obviously, there is the Office of Professional Responsibility
referral and investigation. That is no fun for anybody even who
gets vindicated at the end of the day.
Congress, as we know, saw fit to make it clear with regard
to McDade that Federal prosecutors are answerable toevery bar
that they are involved in, so there is the State bar disciplinary
process. An angry Federal judge upset with you, with whom you have to
practice for the rest of your life, is a very serious matter. They also
have sanctionable authority. So there are a whole host of matter,
including if one were to engage in criminal activities as a Federal
prosecutor, that can be implicated as well. There is the media
attention and all that.
So it seems to me Federal prosecutors are fairly
significantly scrutinized in the scheme of things, and I think
the scrutiny is healthy for people who have this much power and
authority. But I think on some of these issues, what we need to
do is make sure, before we make judgments about people, that we
fully understand what the facts are.
The detention with regard to Dr. Lee, was as a consequence
motivated solely and exclusively by the very serious concern
that there was missing in action from the Government's point of
view information that the experts indicated could, if falling
into the wrong hands, change the balance of global power in the
world, a very serious matter.
Judge Parker originally at the detention hearing agreed
with that. The tenth circuit approved that. There was a hearing
about it, and the process worked itself out at the end of the
day to the point where things changed from the judge's point of
view. And so I think it is well to explore those things for the
larger picture and that is what we ought to be doing as well,
and if there are mistakes that are made--obviously, the
Attorney General has indicated that this matter is going to be
reviewed fully within the Department as well by its Office of
Professional Responsibility, also. And we have obviously the
important role of Congress in its oversight as well. So I think
there are plenty of levers with regard to this and they are
being exercised, and I think it is appropriate that they be
exercised.
Mr. Bay. Senator Torricelli, if I could say one thing for
the record, sir, you have referred on two occasions to line
prosecutors and mistakes they might have made. But Judge Parker
specifically said that virtually all of the lawyers who work
for the Department of Justice ``are honest, honorable,
dedicated people who exemplify the best of those who represent
our Federal Government.'' I don't want that to be lost.
And, in addition, with respect to the line prosecutors on
the case itself, he said that they are all outstanding members
of the bar ``and I have the highest regard for all of them.''
That is on pages 57 and 58 of his transcript. Now, I would
respectfully disagree with his criticisms, but I very much
agree with his judgment as to the people who worked on the
case.
Senator Torricelli. Well, given that as members of the U.S.
Senate our responsibilities include not the oversight of
Justice alone, but the general welfare of the people of the
United States, allow me to write a paragraph into this
analysis.
I agree with the Department of Justice's initial assessment
that the loss of this information, a compromise of the
activities at Los Alamos, could change the entire strategic
balance of power and jeopardize the United States. I believe
from much of the evidence that I saw that there was real reason
to believe that Dr. Lee was guilty of some of these offenses.
Indeed, he has now pled guilty to what is a serious offense.
Yet, the prosecution of the larger case was compromised.
The case clearly was not handled appropriately, or it would not
have resulted in a plea to a single of 59 counts. It is not
clear to me that you are ever going to fully know what happened
to those tapes or who saw them. There were misjudgments from
the time a wiretap was required to the almost unbelievable
manner in which we failed to get access to his computer and his
workspace through the prosecution.
We can be laudatory about everyone who touched this case at
every stage, but the final result suggests no one deserves any
enormous credit. The people of the United States have no right
to be proud of how this case was handled. Their interests, and
even their security was potentially compromised. I say that not
knowing how this case would have resolved. Perhaps Dr. Lee
would have been found innocent, but I don't think any of us can
feel particularly good about anybody's role in this activity.
Mr. Robinson.
Mr. Robinson. I was only going to suggest that one of the
things that needs to be kept in mind--and obviously everybody
is entitled to their opinion at the end of the day--these
cases, particularly cases that involve as a necessary item of
proof the exposure of confidential Government information--the
whole decision to bring a case like this has perils associated
with it.
We do have the Classified Information Procedures Act that
mitigates in many ways that risk. But these kinds of cases
oftentimes are not brought at all----
Senator Torricelli. I think that is an important point.
Mr. Robinson [continuing]. Because the exposure of the
secrets publicly will do all the damage that you are trying to
prosecute, and that was absolutely true in this case. The CIPA
procedures were invoked. The signals coming from the judge--
and, you know, Dr. Lee had the benefit of very fine lawyers who
did a very fine job for him in connection with this matter. And
part of their job before indictment and during the proceedings
was to push the envelope as far as they could to get the
Government to the point where the cost of proceeding would be
outweighed by the cost of throwing in the towel.
And talk about a worst case scenario. It seems to me the
worst case scenario in this case would have been a situation in
which we would have had to throw in the towel because we
couldn't afford to proceed with the trial. And we would have
had none of the benefit of the plea bargain, none of the
benefit of trying to get to the bottom of this, to get the
answers which really are far more important than punishing Dr.
Lee for his very serious conduct which he has now admitted.
We have to keep in mind that we have to assume the worst
and hope for the best. And, assuming the worst, maybe you have
to recalculate the whole nuclear arsenal of the United States
because you can't take the risk that it is in the wrong hands.
So I just think it is a point that needs to be----
Senator Torricelli. It is a good point to add that it
required a mature and sober judgment to look at the larger
interests of the country, finally, and I accept that and I
think it was an important point to make here.
I have another seven tabs in my notebook, but given thefact
that I have very little voice left, I know the witnesses will regret
this, but I am unable to----
Mr. Bay. Senator Torricelli, may I add one footnote to what
Mr. Robinson just said?
Senator Torricelli. Sure.
Mr. Bay. I would like to tell you something that happened
during the course of the case that frankly I don't think has
been disclosed before. In late May, we met with defense counsel
in this case. They came over to the U.S. Attorney's Office in
Albuquerque; this is in late May. And the defense lawyer said
that he would never take a plea to any count in the
indictment--that is, ``he'' being Dr. Lee--and that if the
Government wasn't willing to accept, the defense was going to
put the United States on a, ``long, slow death march under
CIPA.''
I still remember that phrase, ``long, slow death march''
because as I was sitting in our conference room, I am hearing
this defense lawyer tell us that he is going to bludgeon us
using CIPA.
Senator Torricelli. Is that in the transcript or was this a
private----
Mr. Bay. This was a private meeting that we had in late May
when he said, my guy is not going to take any charge in the
indictment and if you don't like that, I am going to put you on
a long, slow death march under CIPA. And, you know, in mid-
September, had the case not been resolved, the judge would have
decided whether or not the Government substitutions under CIPA
were adequate.
Our sense was that the judge was going to rule against us,
and had that happened, our indictment would have been gutted.
We either would have had to declassify a huge amount of highly
sensitive information, nuclear source codes, or we would have
had to dismiss counts in the indictment. It was a very stark
choice. And then I think what Mr. Robinson was talking about,
that could have been the result; that is, at the end of the day
we would have had nothing.
Senator Torricelli. Thank you, Mr. Bay.
Senator Specter. Thank you, Senator Torricelli.
Mr. Bay, if somebody had told me when I was a prosecuting
attorney they were going to put me on a long, slow death march,
I would say let's start walking. That is the kind of a threat
lawyers make----
Senator Torricelli. I believe that. [Laughter.]
Senator Specter. I have even done a lot of walking in my
current job. That is the kind of threat lawyers make all the
time.
And on the Classified Information Procedures Act, the
Government had not run out the string on the legal challenges.
You had offered a substitution so that you didn't have to make
disclosures. The judge hadn't ruled on that. He may have been
predisposed, but you never know until you get the ruling. And
then you had appellate rights, so that you were a long way in
this case from ever being required to produce confidential or
highly sensitive information. And I am going to come to that,
but I am going to start at a more important point.
There is a limitation on proceeding beyond 11:30 today, and
as I said at the outset, Senator Lott has scheduled a meeting
with Speaker Hastert and those of us involved in the
appropriations bill on my subcommittee. So I am going to have
to excuse myself shortly before 11 o'clock, but Senator
Torricelli may want to go beyond. I don't think it is possible
for me to get back before 11:30, and there are a number of
topics I want to cover.
First, on the comment that the Attorney General is being
criticized for being too aggressive and then not aggressive
enough, there are two phases of this case. One was what the
Government did by way of investigation, and the second is what
was done to Dr. Lee.
The Attorney General has been subjected to criticism, and
as Senator Torricelli commented, her testimony was taken in a
closed session back on June 8, 1999, as to why a warrant was
not authorized or pursued by the Department of Justice under
the Foreign Intelligence Surveillance Act. And on that matter,
FBI Director Freeh sent a top assistant, John Lewis, to talk
personally to Attorney General Reno.
Attorney General Reno assigned the matter to Daniel
Seikaly, who had had no experience with that Act, applied the
wrong standard, and the application was turned down in August
1997, which put a dead stop to this investigation. And the FBI
did relatively little until December 1998, and then we know
what happened with the polygraph and thereafter. But that is
when the Attorney General was criticized for not being
aggressive enough.
The treatment given to Dr. Lee after the fact--we do not
know to what extent the Attorney General was involved there. We
haven't sorted that out. The Government was too aggressive, but
it is not inconsistent with the Attorney General having been
not sufficiently aggressive at an earlier stage.
Let me come to a question of proofs which bears on the
indictment and the pressure brought on Dr. Lee, and that is,
either Mr. Parkinson or Mr. Robinson, the statute required in
the disjunctive that there either be injury to the United
States or be to the advantage of a foreign nation. Director
Freeh testified about injury to the United States and he
specified three items. First, there was the most secure
information which was disclosed. Second, the information was
placed on an open system. And, third, the key information was
placed on tapes.
Is there any other factual element which went into the
thinking of the Government to prove injury to the United
States? Mr. Parkinson.
Mr. Parkinson. I think you have captured the broad terms of
the theory. I think we have stated at the outset of the
prosecution when the indictment was handed down that the theory
was, and still is, and I think was solid then and remains solid
that the defendant had an intent to injure the United States,
at the very least by taking what was within the sole control
and dominion of Los Alamos, some of the Nation's most sensitive
secrets, and depriving the U.S. Government of its sole custody
and control of those secrets. And while there are no cases that
parallel this in precedent, we all were comfortable,
particularly analyzed within the Justice Department, that this
was a viable theory and an appropriate theory upon which to
charge Dr. Lee.
Senator Specter. Well, Dr. Lee was also charged with the
lesser offense of downloading and mishandling Government
information, which carries a 10-year sentence. Judge Bonner,
the former head of DEA and former U.S. district judge, made a
comment that the Government overcharged and the suggestion that
the Government overcharged to subject Dr. Lee to an indictment
whichcarried life imprisonment as part of the argument to urge
the confinement.
I personally think it is a difficult question as to whether
there is a showing of injury to the United States on proof
beyond a reasonable doubt when you say that it was the most
sensitive information, placed in an open system, and put on
tapes, and you have an explanation which I do not accept at all
about wanting this information to try to get a new job.
Mr. Robinson. Well, let me suggest that because this a
circumstantial case with regard to his intent, there is
additional evidence, I think, that bears upon this that is
critically important and I think that this case was not
overcharged.
Senator Specter. What is that additional evidence, Mr.
Robinson?
Mr. Robinson. Well, I think, first of all, you have to look
at the very surreptitious way in which this was done, the fact
that it wasn't accidental, the fact that he didn't have a work-
related purpose for doing this, the fact that we could infer
from his conduct that anything that was to be done with these
tapes, and making portable copies of it, because of the very
unique nature of these--this information isn't usable to build
widgets someplace. This information is usable to build bombs.
These are strategic military information, and one can explore
the issue of an intent to injure.
There is no doubt in the world about the fact that there
was injury, egregious, enormous injury to the national
security. The question was whether Dr. Lee intended to do it.
Senator Specter. Well, Mr. Robinson, doesn't the postulate
of injury to the United States really turn on having these
transmitted to some foreign power?
Mr. Robinson. That is an alternative thing in the statute,
but injury to the United States is sufficient under the statute
to make out a crime. It is sufficient to make out a crime under
this statute that there be an intent to injure the United
States. It is not a requirement, and it wasn't charged as an
espionage case in the sense of a delivery. Nothing in the
indictment said that.
As a matter of fact, it was stressed at the time of the
indictment that no allegation was being made that Dr. Lee had
transmitted because we weren't in a position to offer that kind
of proof. There had been a lot of speculation in the newspapers
about those kinds of things, but those were not alleged by the
United States. But we do believe it was fair and appropriate to
charge the highest provable offense against Dr. Lee, which was
that this was done with an intent to injure the United States.
We believe we would have proved it as to all of the counts in
the indictment that required that proof.
Senator Specter. Well, you may be right. I wouldn't want to
pass on it beyond reporting Judge Bonner's comment which he
made that there was an overcharge. And I think he didn't
specify this, but I wondered when Director Freeh testified if
there really was adequate proof beyond a reasonable doubt in
the context of Dr. Lee's looking for other jobs.
But let me pick up the thought that you are making with
respect to transference to a foreign power. That is espionage
and that carries the death penalty if it is transferred to a
foreign power. And there are quite a few links in the evidence
which Director Freeh went over yesterday about contacts which
Dr. Lee had with a foreign power.
In 1992, he had contact with a person who was under
investigation. It was a telephone tap on the other individual,
and then Dr. Lee didn't tell the truth about it until he was
confronted. There was an incident in 1994, or even before 1994,
a lot of travel to the People's Republic of China and a lot of
contacts with officials, nuclear scientists, where Dr. Lee did
not report them, as he was obligated to report them under the
DOE procedures. And then there was a 1994 incident where Dr.
Lee had contact with a nuclear scientist, with the overtone and
some indication of having helped the PRC. So you have quite a
series of those incidents.
And then you raise the question which is not answered, and
it compounds the failure to get that warrant under the Foreign
Intelligence Surveillance Act as to what was going on here with
other suspicious circumstances in Dr. Lee's house, much of
which is classified and can't be commented about in open
session, which leads me to a two-part question.
First, did you consider a charge under the Espionage Act?
And, second, weren't those factors weightier on showing a
transference to a foreign power than the factors on injury to
the United States?
Mr. Robinson.
Mr. Robinson. Well, I think it would have been overcharging
to charge him with the death-penalty offense of espionage for
transferring this information to a foreign power without the
ability to prove that beyond a reasonable doubt. And so
obviously the issue of all of the charges available were
considered, and it was determined that the highest provable
offenses should be and were charged in this indictment.
But I think if we had charged a death-penalty espionage for
transmission of the information to a foreign power without the
ability to prove it beyond a reasonable doubt, then people
could have reasonably criticized that kind of a decision as
overcharging.
Senator Specter. Did you consider that charge?
Mr. Robinson. We considered all of the charges.
Senator Specter. You did consider that charge?
Mr. Robinson. Obviously, that was--it is right in there
among the other offenses to be looked at.
Senator Specter. I don't think you had enough to charge
espionage either, but you know more about this case than I do.
And I have just enumerated a number of factors which look in
that direction. When you charge espionage and it carries the
death penalty, you have really got to have a very, very
powerful case. But I think by the same token, when you charge
an offense which carries a life sentence, you have to have a
powerful case, not to the same degree because the penalty does
bear on the quality of the proof. But I raise those questions.
And I know your answer to this question, but I am going to
ask it. Did you seek a charge--and this is not a charge that
Dr. Lee pled guilty to. He pled guilty to the lesser charge
carrying a 10-year sentence, not the one where you would have
to prove injury to the United States. But did you consider that
major a charge as a pressure tactic, Mr. Robinson?
Mr. Robinson. No; we felt that that was the highest
provable charge that we could bring under the principles of
Federal prosecution. The standard is for the Government to seek
the highest provable charge against an individual. We thought
this was appropriate when we charged it. We continue to believe
it is appropriate today. And we believe, as Director Freeh and
the Attorney General indicated yesterday, that if we had gone
to trial, we believe that assuming the CIPA problems could have
been overcome, we would have been able to secure a conviction
beyond a reasonable doubt as to the charges made in the
indictment.
Senator Specter. Well, without going into great detail
because you didn't come to talk about the Dr. Peter Lee case, I
think you had a stronger case for charging a life sentence case
for Dr. Lee on injury to the United States than you had with
Dr. Wen Ho Lee. I am not going to press you for a comment on
that, but if you care to make one, I would be interested.
Mr. Robinson. Well, as the Senator knows, you have had
extensive hearings on that. I think our positions have been
made clear. I wasn't involved in that particular matter, but I
think we have made our positions clear that that case, in the
view of the Department, was appropriately handled by the
prosecutors. I know there is some difference in opinion as to
your view of the matter, and that is what this healthy dialog
is all about and we try to learn from each other's views on
this matter.
Senator Specter. Well, on Dr. Peter Lee, the Assistant U.S.
Attorney in Los Angeles, Jonathan Shapiro, felt that he either
had to take a lesser plea or he wouldn't get one. And Mr. Dion
in Washington never ruled that out, so that there was an issue
of miscommunication, that Main Justice in Washington never
really ruled out a tougher charge as to Dr. Peter Lee. But in
putting these cases side by side, my sense is that the Peter
Lee case was stronger than the Wen Ho Lee case for the life
sentence charge.
Let me come to the point that has been made about the
treatment and the manacles. We have requested all of the
documents and all of the writings to see exactly why Dr. Lee
was put in leg irons and arm irons, attached to his waist. When
he talked to his attorneys, the attachments were taken off.
When he went to the men's room, they were put back on.
It is understandable that you didn't want Dr. Lee to have
contacts with people where he could transmit information,
secrets. The light in his cell, the comment about the
Rosenbergs by the agent--that was in Director Freeh's written
testimony conceding that it was inappropriate. He didn't
comment about it orally.
You have a highly unusual circumstance--or let me get your
view on it, Mr. Parkinson, that you have, I think the testimony
was, incorrect information given by Mr. Messemer. Does that
happen very often, Mr. Parkinson, by an experienced agent like
Mr. Messemer on a very, very important fact in a very, very
high-profile case?
Mr. Parkinson. I am happy to say it does not happen very
often, but I think again I would just simply point out the
circumstances of this case where we had enormously voluminous
materials to master. I don't mean to excuse that. He should
have mastered it, but it does happen, but not frequently.
Senator Specter. Well, it raises a suggestion of the FBI
really being on the line and the Department of Justice really
being on the line, and the Department of Energy, too, really
being on the line. And without going over what happened,
suddenly, with the pendency of the Cox Committee report, you
really threw the book at this man on the charges, really, and
on the shackles and on the Rosenberg's statement and on the
light, raising an inference--I am not saying that you were
trying to coerce a guilty plea out of him, but that is a
question you have to answer.
What was the purpose, Mr. Robinson, of having the light in
Dr. Lee's cell?
Mr. Robinson. Well, I think we need to get to the bottom of
that question because I learned about it only in connection
with these proceedings. We have to find out whether it is a
night light or whether it is burning light bulb.
I do know this, as was indicated by the Attorney General
yesterday, that a jail monitor visited Dr. Lee in March at his
facility where he was there because of the expressions of
concern about the conditions of his confinement. And in a
memorandum at the facility, he interviewed Dr. Lee and the jail
monitor says that he personally met with Dr. Lee for about 20
minutes in his jail cell. He explained his role as jail monitor
and the calls that he had received about Dr. Lee's condition.
Other than being incarcerated, he had no complaints. The
staff was treating him very well, and he singled out Warden
Barerras and Deputy Warden Romero as treating him great. ``He
told me that he had seen a doctor when requested, and he has
not been sick or ill at any time during his incarceration. His
only request was for additional fruit at the evening meal,
which I relayed to Warden Barerras. I gave him my business card
and told him to contact me through his attorney if there was
any mistreatment or other issues regarding his incarceration.
At no time did we discuss his case or any fact relating to
it,'' and he emphasized his role as a jail monitor.
There was a conversation, and Mr. Bay can indicate it,
between the U.S. Attorney's Office and counsel for Dr. Lee
about his conditions, and a number of things were done,
obviously, to mitigate those. Whether some of them could have
been done more efficiently, effectively or sooner, the key
about the special administrative measures was to deal with his
ability to communicate.
Senator Specter. How did the manacles relate to his ability
to communicate?
Mr. Robinson. As I understand it--and I think we need to
lay this out carefully so we understand exactly what happened.
As I understand the situation, the conditions at this
particular facility for prisoners in segregation, which Dr. Lee
was in, are procedures that apply to all prisoners who are in
segregation. So if this is a problem, perhaps it should be
addressed on a systemic basis because there are certainly other
prisoners in administrative segregation being treated exactly
the same way.
Senator Specter. Did the monitor tell Dr. Lee he needed to
have those manacles and leg irons?
Mr. Robinson. Did the what?
Senator Specter. Did the monitor tell Dr. Lee he had to
have those leg irons and those wrist irons?
Mr. Robinson. No; as I understand it, the monitor was
finding out from Dr. Lee whether these claims that he was being
mistreated--whether he had concerns about that. Therewere
efforts early on to get a Mandarin speaker to assist Dr. Lee in his
communications. There were efforts to effect visiting times. There were
efforts made later on particularly to remove any shackling during
exercise.
The U.S. Marshals Service has also procedures for how they
handle the transfer of all prisoners in custody from the
facility to court, and those are standard procedures as well.
But I think these are things that we ought to make sure we
understand exactly all of the specific facts concerning these.
Perhaps Mr. Bay would also be able to enlighten us.
Senator Specter. Mr. Robinson, it is not uncommon for the
prosecution to seek a jail sentence to induce somebody to
testify, turn State's evidence.
Mr. Robinson. I think it would be inappropriate to have a
pre-trail detainee put in prison for that purpose. That was not
the purpose of the detention here. And I would also point out
that in the memorandum, Dr. Lee is purported to have said--Mr.
Lee was very surprised about the calls concerning his treatment
and stated, ``I haven't complained to anyone about the jail
because I am being treated very well.'' That is what he said in
March 2000.
Mr. Bay. Mr. Chairman.
Senator Specter. Well, we intend to pursue this to find out
if everybody is treated this way, or about the light and about
the whole panoply of arrangements as to how he felt about it.
It is not uncommon for someone in detention not to want to
anger the custodian. You don't want to make your custodian mad.
Who knows what is going to happen next?
Mr. Bay. Mr. Chairman.
Senator Specter. Mr. Bay, do you want to make a comment?
Mr. Bay. I have some information with respect to the light.
I first learned of this a few days ago when I read about it in
the newspaper. I have since made inquiries back in New Mexico
and I am told that the light was a dull blue light, kind of
like a night light, in Dr. Lee's room, and that the jail would
use that just to make sure that if someone walked by and looked
inside his cell that they could make sure that he was there and
that he was doing OK.
I do know from having reviewed the correspondence in this
case that we never received a complaint from defense counsel
about the light. The main thing, though, is I don't want you,
Mr. Chairman, to be left with the impression that there was
some sort of bright light that was left on in his room 24 hours
a day.
I also get the impression, Mr. Chairman, that this blue
light was something that individuals in the administrative
segregation part of the jail had in their cells, that this was
not something special with respect to Dr. Lee.
Senator Specter. Well, we are going to pursue that to
really find out exactly what happened, what the defense lawyers
have to say about it, Mr. Holscher and Mr. Cline, and what was
done specifically to Dr. Lee.
On the issue of racial profiling, there was supposed to
have been a submission to the court, as I understand it, on
September 15. And the judge commented that he regretted not
being able to see those documents, but the case was concluded
on the 13th.
How long will it take, Mr. Robinson, for the subcommittee
to have access to those documents?
Mr. Robinson. I am not sure offhand. I do understand that
the prosecutors did meet with Judge Parker and indicated that
if he was interested in seeing any of this material, there was
going to be no effort to not give it to Judge Parker if he was
interested in it.
Am I correct, Mr. Bay?
Mr. Bay. That is correct. The lead prosecutor met with
Judge Parker a few days ago.
Senator Specter. Have those materials been all collected?
Mr. Bay. I don't know. You would have to ask the Department
of Energy. But we asked Judge Parker if he still had an
interest in reviewing those materials and he indicated to the
lead prosecutor that he no longer had that interest.
Senator Specter. Well, they were moot as far as he was
concerned.
Are those materials all collected, Mr. Curran?
Mr. Curran. Sir, that is the first I am hearing of it, so
there must be somebody else in the Department handling those. I
know the Secretary had a racial profiling task force which put
together most of----
Senator Specter. Well, Mr. Curran, Mr. Robinson, Mr.
Parkinson, and Mr. Bay, would you give the subcommittee a
response as to what is collected and how soon we can have
access to them?
Mr. Curran. Sure.
Senator Specter. On the Classified Information Procedures
Act, Mr. Robinson, when a decision was made to proceed with
this case you knew that you faced that risk.
Mr. Robinson. We did.
Senator Specter. And you were prepared to go to trial,
notwithstanding that problem. Did anything ever occur to change
your view if you had an adverse ruling under CIPA?
Mr. Robinson. I think this is an important point to deal
with because during the discussions with the Department of
Energy, and particularly the classifiers there, obviously
prosecutors who want to put the best case in would like to have
as much information available, particularly given the
circumstantial nature of this case.
The more light that could be shed on the critical
importance and the strategic importance of this information,
and the less usable that information is for other purposes, the
better your case on intent is. So we were pushing to get as
much information consistent with the national interest as
possible. The Department of Energy understandably wants to
protect that information. We made it clear----
Senator Specter. You thought you could put enough on to get
a conviction?
Mr. Robinson. Assuming we could hold the line that we had
established in connection with the declassification, which
obviously there were very strong signs was not going to be
held. But we also made it clear that this subject, as in all of
these cases--whenever you bring one of these cases, you have to
constantly reevaluate based upon CIPA rulings whether or not
the cost/benefit analysis is going to tilt the other way.
Senator Specter. But you had not crossed that line.
Mr. Robinson. Not yet.
Senator Specter. You had made an offer of substitution so
you wouldn't have to produce the sensitive material. Thejudge
had not ruled on it.
Mr. Robinson. Right, that is quite right, and we didn't
reach that.
Senator Specter. And you also had appellate remedies to
take it to a higher court if you got an adverse ruling from
Judge Parker.
Mr. Robinson. We did. Let me also suggest, however, that I
understand your point about getting on that long death march,
and I believe to a moral certainty that you would do it and I
know you were a very skilled and forceful prosecutor. The only
thing that I would suggest there is that I know that you would
have made the same kind of sound judgment, assuming these
facts.
If you ever lose the CIPA battle completely to the point
where you have to throw in the towel, you would get nothing in
return from the defense because you would have to dismiss your
case. And as I said, the worst case scenario here would have
been to have gone all the way and lost, at a point when we
would have had to have made this very difficult decision as to
whether the gray mail worked and we couldn't proceed because we
couldn't expose those. We didn't get to that point, but I
suggest that going all the way to the end to lose would have
been a very, very bad scenario for the national security of the
United States.
Senator Specter. Well, we are going to pursue that, but in
closed session. We are going to want to know what it was on the
worst case scenario you would have had to have produced, and
get into the details as to what substitution was offered, and
make an evaluation as to whether you could have won that with
Judge Parker or won it on appeal.
The imminence of the release of Dr. Lee is a factor which
raises speculation that that was a critical factor in your
decision to come to terms at that particular time; that once
Dr. Wen Ho Lee would have been released by the court of
appeals, had they done so, had their affirmed Judge Parker's
order, there would have been a really very significant
psychological loss for the Government, and also an ability to
have an effective monitor on Dr. Lee, and that the real
strength of your position lay in getting that detention and
even if the pressure was not intended, to have that pressure.
How significant was the order releasing him to your final
decision, Mr. Robinson?
Mr. Robinson. Well, obviously it was a factor because our
reason for the special administrative measures was because of
our concern about the national security. And we did make the
point with Judge Parker that we did not feel the conditions--
and the other thing that needs to be remembered is although
Judge Parker was granting bail, he was granting bail with the
most severe restrictions I have ever seen on a person who is
not in custody with regard to what could have been done.
It would have been done at enormous expense of time and
effort by the FBI and, in our view, at the end of the day would
not have been satisfactory to protect our concerns. So it was
obviously one factor, along with many others, that was also
going along with this mediation process that Judge Parker has
put in place to create, I think, the dynamics for the
possibility of a resolution which, like all resolutions--I am
sure that Dr. Lee and his attorneys would have preferred a
different result, a nonfelony result that perhaps didn't
involve the kind of cooperation.
We might have preferred something different as well, but we
felt, and the Director and the Attorney General felt that this
was the result that made the most sense to protect the national
security, and I certainly agree with that.
Senator Specter. I have one final question from Dobie
McArthur, who I will put on the record as having done an
extraordinary job. He is a one-man task force. We don't have a
budget, but we have McArthur, which is better than a budget.
With respect to CIPA, the question which Mr. McArthur poses
is wouldn't the Government have been secure in not having to
put on the input decks, which even Dr. Richter concedes was
sensitive? So weren't those at least secure?
Mr. Robinson. Perhaps Mr. Bay can answer that.
Senator Specter. OK, Mr. Bay, you have the last word.
Mr. Bay. Mr. Chairman, with respect to the indictment,
almost every count references the source codes, and that is the
classified information that was under greatest attack in the
CIPA ruling. And the judge had accepted an argument by the
defense that the source codes were relevant to the defense, for
reasons I don't want to get into here. But those sources, when
you go through the indictment, are listed in almost every
single count.
Senator Specter. We are going to have a hearing bringing in
the scientists and make a determination as to whether these
were the crown jewels or whether they were not and to what
extent they were sensitive. And to the extent we can, we are
going to do an open hearing on that. We may have to go into
closed session, but we are going to pursue that line.
Gentleman, thank you very much for coming.
Mr. Parkinson, do you want the last word?
Mr. Parkinson. Mr. Chairman, I just wanted to add on that
point that I think it is very significant we did have a major
development, at least potentially, since yesterday, and that is
that Dr. Richter's testimony in large part appears to have been
retracted. And there is an account in the New York Times this
morning about how he says when he testified that 99 percent of
this was out there and unclassified, he was only referring to
certain pieces of this. He said his comments did not apply to
most of the data, or at least other data that Dr. Lee removed.
Senator Specter. Well, maybe you would have found that out
if you had proceeded under the Classified Information
Procedures Act and had further proceedings.
Mr. Parkinson. Yes, we may have.
Senator Specter. You might have found that out before Judge
Parker. I don't know that you could find out as much as the New
York Times did, but you might have.
Thank you very much, gentlemen.
[Whereupon, at 10:59 a.m., the subcommittee was adjourned.]
CONTINUATION OF OVERSIGHT OF THE WEN HO LEE CASE
----------
TUESDAY, OCTOBER 3, 2000
U.S. Senate,
Subcommittee on Administrative Oversight
and the Courts,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:33 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen Specter
presiding.
Also present: Senator Grassley.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Senator Specter. Good morning, ladies and gentlemen. The
hour of 9:30 a.m. having arrived, the Judiciary Subcommittee on
Department of Justice Oversight will now proceed.
This is our fifth hearing into the issues involving the
investigation and prosecution of Dr. Wen Ho Lee and today we
are going to concentrate on a number of issues, including the
seriousness of the information which was compromised by Dr. Lee
and also the issue of racial profiling.
A very significant backdrop on our hearings relates to the
statements made by Judge Parker on September 13 where he said,
among other things, ``With more complete balanced information
before me I felt the picture had changed significantly from
that painted by the government during the December hearing.''
And continuing, ``I find it most perplexing, although
appropriate, that the executive branch today has suddenly
agreed to your release without any significant conditions or
restrictions whatsoever on your activities. I note that this
occurred shortly before the executive branch was to have
produced for my review in camera a large volume of information
that I previously ordered it to produce.'' The subcommittee
intends to examine that information--even though the court
could not because the matter was closed--to find what its
import is.
Judge Parker then continued: ``What I believe remains
unanswered is the question of what was the government's motive
in insisting on your being jailed pretrial under
extraordinarily onerous conditions of confinement until today,
when the executive branch agrees that you may be set free
essentially unrestricted. That makes no sense to me.'' This
subcommittee is determined to find out what the government's
motives were.
The judge then continued somewhat later in this statement:
``Dr. Lee, I tell you with great sadness that I feel I was led
astray last December by the executive branch.'' And he later
said, ``We will not learn why because the plea agreement
shields the executive branch from disclosing a lot of
information that it was under order to produce that might have
supplied the answer.'' And here again the subcommittee intends
to find what that answer is.
That is a very brief overview, necessarily curtailed by the
fact that we have two votes scheduled at 10 o'clock. Those are
beyond the power of the subcommittee. In fact, nobody knows
what votes are going to be scheduled until they actually are on
the day in question. And the subcommittee has also been
restricted, as it was last week, by objections raised to having
any hearings proceed 2 hours after the Senate goes into
session, so that may restrict us, as well. We will endeavor to
complete our list of witnesses today but we will just have to
see how that goes.
I want to now yield to my distinguished colleague, the
chairman of the subcommittee in its ordinary function, Senator
Grassley.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. I thank you, Senator Specter, for your
leadership in this whole area, holding these hearings and doing
it in a timely and thorough manner and particularly the
obstacles you have had to overcome to get to where we are today
and maybe even obstacles to get to where we have to go further,
sometimes obviously fighting even Members of Congress in our
constitutional oversight--Democrats who, for obvious reasons,
maybe do not want some of this information out but even
sometimes fighting with Republican members of the Senate to do
our job, and always having to work with the executive branch
dragging its feet.
Now you are holding these under very difficult
circumstances and I appreciate that very much. I think there is
one thing that I want the public to keep in mind during these
hearings, particularly one thing, and that is the public is
only getting one side of the story. For now, Dr. Lee's side of
the story is on hold. That is because his attorneys have asked
that his side be told only after he is debriefed by the
Government. We also asked to interview Judge Parker about his
views of the case but Judge Parker declined our invitation, so
the public is not going to get the full picture, which may not
come into view for some time yet.
This case can only be described as a colossal blunder and
when I say that, I am taking you back to 1996 when Dr. Lee was
investigated for divulging the W-88 warhead data. That
investigation was fundamentally flawed from the beginning. The
Bellows Report confirms this point of view. So does any fair
reading of the thousands of pages of documents that we read
about this case.
Also throughout this case there has been lots of finger-
pointing going on; it is still happening--the FBI, the Justice
Department, the Energy Department, Congress, even the judge--
and I imagine that we will see some of that even here at this
very hearing. It all started when the Federal Government
pointed its rather substantial finger at Dr. Lee without
sufficient basis.
One thing that I agree with Mr. Vrooman about in his
written testimony that is prepared for today's hearing, he says
that Dr. Lee was singled out as having ``the means and
motivation'' to compromise the W-88 information. Mr. Vrooman
goes on to say, ``Every time Lee's motive was discussed, it
came down to ethnicity. There was no other motive ever
suggested.''
Now I was not privy to any discussions involving ethnicity
but the issue of a motive was not discussed in the documents we
received in this investigation. It was mentioned but was not
discussed in any convincing way, and I think that is one of the
more troubling aspects of this case. The job of this
subcommittee and particularly this investigation is to learn
what went wrong and why; then fix it so it does not happen
again. And in regard to that, that is why today's hearing is so
very, very important. Thank you, Mr. Chairman.
Senator Specter. Thank you very much.
Will Mr. Trulock, Mr. Wilkins, Dr. Richter, Dr. Younger,
Mr. Vrooman all step forward? Would you gentlemen all raise
your right hands?
Do you solemnly swear that the testimony you will give
before this subcommittee will be the truth, the whole truth and
nothing but the truth, so help you God? Mr. Trulock?
Mr. Trulock. Yes.
Senator Specter. Mr. Wilkins?
Mr. Wilkins. Yes, sir.
Senator Specter. Dr. Richter?
Mr. Richter. Yes, sir.
Senator Specter. Dr. Younger?
Mr. Younger. I do.
Senator Specter. Mr. Vrooman?
Mr. Vrooman. Yes, sir.
Senator Specter. OK, Mr. Vrooman is at the far end of this
table; Dr. Younger is next, Dr. Richter, and Mr. Wilkins, Mr.
Trulock.
And for the record, Mr. Trulock is represented by Mr. Larry
Klayman, who is seated next to him.
Dr. Richter, let us begin with you. We would be pleased to
hear your opening statement at this time.
STATEMENT OF JOHN RICHTER, SCIENTIST, DEPARTMENT OF ENERGY
Mr. Richter. I would like to make one.
I assume that this hearing is to explore whether the case
against Wen Ho Lee was conducted properly and whether
congressional action is warranted. In 1958, about the time that
Julius and Ethel Rosenberg were executed for atomic espionage,
the most recent amendments to the Atomic Energy Act were
enacted. Since then, the United Kingdom, France, China, Israel
and perhaps India have built nuclear arsenals, in addition to
those of the United States and the Union of Soviet Socialist
Republics. Later, the Soviet Union collapsed, the Cold War
ended. Also ended were such terms as mutual assured
destruction.
In the Lee case, the out-of-date Atomic Energy Act, which
included overly harsh criminal penalties, together with
unrealistic damage assessments from DOE, spurred the FBI and
the prosecution team to actions that a large sector of the
public found unacceptable. I urge the Congress to keep volatile
laws, such as the Atomic Energy Act, current and not leave it
to the courts. I would like to elaborate on some of these views
next.
I have held various security clearances since 1958,
including DOE, military and NSI. While not a very attractive
aspect of employment, security is a condition of employment and
I have never willfully violated it. Anyone who finds it onerous
to work in a calcified environment should seek employment
elsewhere.
Regarding the data that Wen Ho Lee downloaded on the
unclassified computer, there are three categories of
information: computer codes, material properties information,
and problem setups, which include the W-88.
The first are only slightly classified because they
describe physics that date back as far as the 17th century.
Senator Specter. Dr. Richter, are you now on the three
categories of the nominated input decks, data files and source
codes?
Mr. Richter. Right. The source codes I mentioned, they are
very slightly classified. The materials properties information
and then the problem set-ups.
The second, the materials properties information, is
classified because it contains properties of high atomic number
elements, like plutonium, et cetera.
Senator Specter. Now which are you referring to? Are you
talking about data files or input decks?
Mr. Richter. Data files.
The third, the problem set-ups, the input decks, as you
call them, are truly classified because they contain numerical
descriptions of some of our nuclear weapons, including the W-
88.
Let me consider what harm might have accrued to the
security of the United States if the subject information had
gotten into the hands of nations not necessarily friendly to
the United States.
The United States exploded its first nuclear device in
1945, Russia 1949, the United Kingdom about 1951, France about
1958, China in 1964, India in 1974 and Pakistan in 1998. So
clearly there is a lot of information worldwide regarding
nuclear weapon technology. It has been around a long time.
We know that the Union of Soviet Socialist Republics, via
Klaus Fuchs, got information from the United States. We also
know that Russia gave China information. And we further know
that China mentored Pakistan. The governments of the majority
of the people on earth know how to build nuclear weapons that
could cause serious harm to the United States and they have
known it for a long time.
The problem set-up data in question can be compared with a
partial cooking recipe. In addition to the recipe, the user
must have an adequate kitchen, all of the ingredients, and
considerable skill as a Chief. If he can already broil a steak,
why should he attempt to prepare, say, Chateaubriand from an
incomplete Cordon Bleu recipe?
The United States built nuclear weapons to maximize the
Nation's chances for survival in case the Cold War turned hot.
Those were the largest of MIRV's--multiple independently
targeted reentry vehicles--on a missile, the largest yield
together with the utmost safety.
No one now needs to build nuclear weapons the way we did.
Indeed, if START-III happens, then MIRV will be outlawed. Tens
of thousands of ready-to-shoot nuclear weapons are unnecessary
now. It would be risk and expensive folly for another nation to
build weapons now the way the United States has and especially
without hands-on testing.
We are very concerned about the nuclear weapons of other
nations. We look for vulnerabilities, technological surprises,
but we do not copy their designs because we know how we prefer
to build them. I suggest that other nuclear powers,
particularly the more mature ones, have decided how they wish
to construct nuclear weapons.
Recent cases similar to Lee's suggest that revocation of
security clearance and termination of employment might suffice
for the offense. In another case, the defendant also got a year
in a halfway house. Inside the beltway, leaks to the media can
best be described as an on-going hemorrhage of classified
information of all categories, certainly not limited to DOE,
yet there is no attempt to apprehend the perpetrators. This
raises the specter of selective enforcement of the laws.
Lee was discharged from the laboratory in March 1999 but
not arrested until December. Indeed, he was undersurveillance
for this period but he was free. After arrest, he was held
incommunicado, which many felt was cruel and unusual punishment for a
person awaiting trial.
At the August bail hearing Lee had been incarcerated for 8
months. The judicial industry standard is 6 months for the
constitutional speedy trial. The almost-daily publicity would
have made jury selection extremely lengthy, further delaying
Lee's day in court from the proposed November trial date. Lee
might have spent well over a year in jail before the case was
settled. Apparently Judge Parker came to similar conclusions
and settled the case and I salute him. Thank you.
Senator Specter. Dr. Richter, you testified at the bail
hearing for Dr. Lee?
Mr. Richter. Yes, sir.
Senator Specter. And what was the essence of the testimony
which you gave at that time about the nature of the classified
information that Dr. Lee downloaded?
Mr. Richter. I tried to maintain the three categories that
we have discussed. The codes, I think there has been discussion
of whether it is 99 percent unclassified, et cetera. But, of
course, the materials data are classified and the problem set-
ups are certainly classified.
Senator Specter. Well, let us move to the input decks. What
testimony did you give at Dr. Lee's bail hearing about what he
did with the input decks?
Mr. Richter. Well, as far as I think the way we handled it
there, it was all handled together--the codes, the materials
properties and the input decks.
Senator Specter. Well, you testified at that time, ``These
codes and their associated databases and the input file,
combined with someone who 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. They represent the gravest possible
security risk to the supreme national interest.''
Is that an accurate statement?
Mr. Richter. I did not say that. It probably was said but I
did not say that.
Senator Specter. Well, we may have Dr. Younger's statement
on that.
Dr. Younger, is that, in fact, your testimony?
Mr. Younger. That is, Senator.
Senator Specter. Before responding to questions, would you
care to make an opening statement?
Mr. Younger. I would.
STATEMENT OF STEPHEN YOUNGER, SCIENTIST, DEPARTMENT OF ENERGY
Mr. Younger. Thank you, Chairman Specter, for the
opportunity to discuss facts related to the case of Dr. Wen Ho
Lee.
The United States developed the most advanced nuclear
arsenal in the world through a combination of complex computer
calculations, laboratory experiments, and nuclear tests. Key to
the design process was a series of sophisticated computer
codes, supported by databases that describe the behavior of
materials under extreme temperatures and pressures. These codes
allow us to make reasonably accurate predictions of the
performance of nuclear devices, predictions that were validated
by nuclear tests.
I can say based on my review of the contents of the tapes
made by Dr. Lee that he did systematically collect a set of
nuclear weapons design tools that would enable the possessor to
perform sophisticated calculations of nuclear explosives.
Further, Dr. Lee's tapes contained the actual designs of a
number of nuclear explosives, including some weapons currently
in the U.S. arsenal.
It has been said that much of the information contained on
the tapes made by Dr. Lee is available in the open literature.
I believe this to be misleading. First, while much of the
fundamental physics used in nuclear explosives design is
unclassified, the specific combination of physics required to
produce an adequate approximation of nuclear weapons
performance is a secret. Indeed, one of the most sensitive
pieces of knowledge in nuclear weapons design is what is good
enough to adequately model a weapon. It is always better to put
in more detail, to be more accurate, but even the largest
computers in the world cannot handle all of the complexities
involved in a nuclear explosion. Experienced physicists could
waste a great deal of time trying various approximations before
they found ones that were sufficiently accurate and
sufficiently fast for practical calculations. United States
design codes are the result of decades of work involving
hundreds of people who had access to data from over 1,000
underground nuclear tests and atmospheric nuclear tests.
Second, some of the information on plutonium and uranium
and other materials contained on the tapes was obtained through
nuclear testing. It is not found in the open literature. Some
of the data contained on the tapes cannot be obtained by any
means other than nuclear testing.
Third, the tapes that Dr. Lee made contained the designs of
actual nuclear devices, some of which have been successfully
tested. These designs are certainly not available in the open
literature. Providing unauthorized persons with the designs of
our nuclear weapons could enable them to advance their own
weapons program and to identify and exploit weaknesses in our
nuclear defenses.
Based on my knowledge of foreign nuclear weapons programs,
I think I can say with confidence that our computer codes and
databases are the finest in the world. No other country had the
technology base that was necessary to perform some of the
measurements that we made in our nuclear tests, measurements
that were used in the calibration and validation of the
computer codes downloaded by Dr. Lee.
In my opinion, it would be impossible, at least on a time
scale yielding strategic surprise, for any country in the world
to duplicate the information contained on those tapes without
doing nuclear tests, regardless of how much money they were
wiling to spend or the intelligence of their scientists. There
are simply too many unknowns that cannot be resolved without
extensive nuclear testing.
During my testimony at Dr. Lee's detention hearing in
December 1999, I stated that the information that he downloaded
could, if placed in the wrong hands, change the global
strategic balance. I believed that then and I believe it now.
Although the information itself does not convey all of the
technology required to build deliverable weapons, it could
advance the design effort enormously.Production of a weapon
that would be a realistic threat still requires special nuclear
materials, special engineering and fabrication skills and a capable
scientific cadre.
Nuclear weapons are the most destructive weapons ever
created by humankind. They are the only devices that can
threaten the conventional military superiority of the United
States. In the wrong hands, the information downloaded by Dr.
Lee could enable a proliferant nation to design relatively
crude but nevertheless effective nuclear weapons without
nuclear testing. Those weapons would certainly not be as
sophisticated as the weapons contained in the U.S. arsenal but
they would be credible enough to influence other nations,
including our own.
A nation that already had nuclear weapons could use the
codes to help maintain their weapons or to improve them. The
information contained on the tapes could also be used to find
and exploit potential vulnerabilities in U.S. weapons.
The United States expects our existing nuclear weapons to
last a long time. As other countries advance in their military
capabilities, we must be prepared and be careful that our
nuclear deterrent is not placed at risk by a compromise of our
designs.
In summary, it is my opinion that the information contained
on the tapes made by Dr. Lee could, in the wrong hands, pose a
grave danger to the national security of the United States.
Thank you.
Senator Specter. Dr. Richter, you have been quoted as
testifying before Judge Parker that at least 99 percent of the
nuclear secrets that Dr. Lee downloaded to tapes were
unclassified. Is that an accurate statement?
Mr. Richter. An accurate statement regarding the codes. I
still maintain that. The materials properties, I do not think I
was referring to that at that time. If I did say it that way
then I did not mean it and I erred.
Senator Specter. So you were referring only to the codes
and not to the data files or the input decks?
Mr. Richter. That is what I was referring to.
Senator Specter. Dr. Younger, what was the factual basis
for your statement as to what Dr. Lee had, in fact, downloaded?
Mr. Younger. I looked at detailed listings of the codes,
the names of the files. I obtained information on the contents
of those files and I knew by the names of the files what they
indicated in terms of a design capability.
Senator Specter. So you could determine all that
information from the files and you knew which files Dr. Lee had
downloaded?
Mr. Younger. I knew which files Dr. Lee had downloaded,
yes.
Senator Specter. So that was your basis for determining
what the information was?
Mr. Younger. That is correct.
Senator Specter. Dr. Richter, as you hear Dr. Younger
describe what Dr. Lee had downloaded, specifically when he says
that information on plutonium and uranium and other materials
contained on the tapes obtained through nuclear testing, it is
not found in the open literature; some of the data contained on
the tapes cannot be obtained by means other than nuclear
testing, would you agree or disagree with what Dr. Younger
said?
Mr. Richter. I would certainly agree with that, yes, sir.
Senator Specter. And Dr. Younger further testified,
``Third, the tapes that Dr. Lee made contained the designs of
actual nuclear devices, some of which have been successfully
tested. These designs are certainly not available in the open
literature.''
Do you agree or disagree with that?
Mr. Richter. Yes, I agree, and I would like to elaborate.
Senator Specter. Please do.
Mr. Richter. It takes about--I am guessing--a foot-foot
shelf of drawings, specifications, material processes and so
forth to build one of these nuclear weapons, and that is not on
the tapes. The basic dimensions are but nothing else. I mean
the metallurgical processes of the materials, and so forth is
not anywhere in there.
These are thought by many experts that I work with to be
very, very important and could possibly defeat our efforts to
maintain our nuclear stockpile, particularly the very
sophisticated designs, such as the W-88.
Senator Specter. Dr. Younger, Dr. Lee's lawyers maintain
that information he is accused of downloading was classified at
the secret level. Is that accurate or inaccurate?
Mr. Younger. That is accurate.
Senator Specter. Is it true that secret information can be
sent through the mail?
Mr. Younger. That is correct.
Senator Specter. Well, if it has only that classification,
not even top secret, and can be sent through the mail, is there
some problem with our classification system that you
characterize that material as sufficiently sensitive to change
the global strategic balance?
Mr. Younger. Well, Senator, it is not only secret data; it
is secret restricted data. So in addition to----
Senator Specter. Could you define the difference between
that and top secret data?
Mr. Younger. Secret is a category which will cause serious
damage to the United States. Top secret will cause even more
grave damage to the United States. Restricted data concerns
data associated with nuclear weapons and the procedures for the
shipment of classified information are determined by the
Department of Energy.
Senator Specter. Well, if the information is so valuable as
to change the strategic global balance, why is it classified
only at the secret restricted level?
Mr. Younger. Secret restricted data was considered to be a
category sufficiently high to protect the information. Access
to a secret clearance does not guarantee access to nuclear
weapons information. There is a further level of clearance
required, specifically a Q clearance.
Senator Specter. Is it not true that the Department of
Energy regulations say that restricted data can be sent through
the mail, as well as secret data?
Mr. Younger. Correct.
Senator Specter. You mentioned the Q clearance. Would you
define what that means?
Mr. Younger. That is a full background check in addition to
a normal secret clearance.
Senator Specter. We are going to have a vote soon and there
is a great deal to be covered, but at this time I want to yield
to my distinguished colleague, Senator Grassley.
[Discussion off the record.]
Senator Specter. Dr. Younger, of the classified information
on the computer systems that Dr. Lee had access to at Los
Alamos, was there anything that was classified as top secret?
Mr. Younger. Not on that system, no.
Senator Specter. Dr. Younger or Dr. Richter, do you
gentlemen have any insights as to what Judge Parker was
referring to when he said that he had been misled by the
government? Dr. Younger?
Mr. Younger. I do not.
Senator Specter. Dr. Richter.
Mr. Richter. I believe that what Judge Parker was referring
to was the fact that the testimony that upset the world's
strategic balance, he felt, was misleading. And I do not
believe that the information there would upset the world's
strategic balance.
Senator Specter. Why do you feel that the information would
not upset the world's strategic balance?
Mr. Richter. Because I think so many people in the world
know how to build nuclear weapons right now and they can build
them their way and they would say, ``Hmm, isn't this
interesting how the Americans do it?'' and let it go at that.
That is an opinion, of course.
Senator Specter. Why do you believe that Judge Parker found
that particular factor to be misleading?
Mr. Richter. As I understand it, the only sorts of
information a court has is testimony and if the only testimony
they have is that it is upsetting the world's strategic
balance, then that would be misleading. And then somebody can
come wandering in, for example, myself, and says it really is
not that serious, and he would say, ``Gee, I only heard one
side of the story.''
Senator Specter. Well, when you testified, Dr. Richter,
that 99 percent of it was unclassified, you were talking about
the source codes and not about the data files and the input
decks, correct?
Mr. Richter. That is exactly right.
Senator Specter. Well, focusing for just a moment on the
input decks, what was there about that classification which was
restricted or very serious data?
Mr. Richter. This is some of the details of how we build
our front-line nuclear weapons. Now, I spent a good deal of my
career in the latter days trying to figure out what other
nations' weapons are.
Senator Specter. Well, are you saying as to the material in
the input decks that although classified, it was available to
other nations?
Mr. Richter. It should not be. It should not be.
Senator Specter. Well, a few moments ago you said that so
many nations know how to build nuclear weapons that it does not
change the global strategic balance.
Now as to the input decks, would that be something known to
other nations?
Mr. Richter. No, it should not be. This is the way the
United States chooses to build its nuclear weapons.
Senator Specter. Well, as to the input decks, to what
extent did Dr. Lee make disclosures on input decks which were
not available, disclosures not available to other nations?
Mr. Richter. He should not have done it.
Senator Specter. Well, was that among the materials that
Dr. Lee did, in fact, disclose?
Mr. Richter. I am afraid yes. Yes, indeed. I saw one of the
input files myself.
Senator Specter. And what was that input file which you
saw?
Mr. Richter. It shows the primary of the W-88.
Senator Specter. And to the extent that you can specify in
this open hearing, and we can adjourn to a closed hearing for
any portion of this or other testimony which may require that,
can you amplify what you just said about the W-88?
Mr. Richter. It shows the dimensions, but none of the
specifications that go into all of the rest of it, and that is
just not there.
Senator Specter. It shows the dimensions but not the
specifications?
Mr. Richter. Of the materials and the processes to produce
them, the quality controls, surface finishes, machine surface
finishes, and all the things it takes to build a mechanical
object. And as you go to the more advanced weapons that we
have, for example, the W-88, these things become ever more
important.
Remember we nuked Hiroshima in 1945 with an untested
device, so that is the other extreme. You can build an old
clunker that will go bang, but I am saying that when you get to
the maximum number of MIRV's on the missile and the largest
yield you can get out of it, you have to be ever more careful,
and that is not all there.
Senator Specter. Well, you have testified that as to the
input decks, that was important information.
Mr. Richter. Oh, yes.
Senator Specter. And it did have a number of items as they
related to the 88.
Mr. Richter. Yes, sir.
Senator Specter. But you are saying that it did not have
all the information.
Mr. Richter. It lacked a great deal. It is like the recipe
I was telling you about.
Senator Specter. Well then, what would your evaluation be
as to what damage there was to the United States in having that
information from the input decks available to a foreign power?
Mr. Richter. It would let them know how the United States
goes about its nuclear weapon business. If they wish to emulate
that, they can try.
Senator Specter. And with respect to the third category of
the data files, what did you find as to what Dr. Lee had
disclosed, if anything, as to data files?
Mr. Richter. It would certainly help them. The point is
that, for example, China has been working on nuclear weapons
since 1964. They have a pretty good idea of what the plutonium
equation of state is.
Senator Specter. So then is the long and short of it, Dr.
Richter, that when you were quoted as saying that 99 percent
was unclassified that you were really referring to the source
codes only and that, in fact, on the information from the input
decks and the data files, that those disclosures certainly were
harmful to the United States?
Mr. Richter. They did not help.
Senator Specter. Well, that is different from being
harmful. How about my question? Were they harmful or not?
Mr. Richter. The answer to the question is when I was
looking at other nations' information, we mainly took the view
of ``Isn't this interesting, to see what they aredoing?'' But
we did not rush to the laboratory and put it into practice.
And I do not think the mature nations, for example, China,
which has been in the business since 1964, would say, ``Gee,
isn't that interesting?'' and let it go at that. I would say it
is marginally harmful, at worst.
Senator Specter. Marginally harmful at worst.
Mr. Richter. Yes.
Senator Specter. We have not called all of the people who
have expressed opinions on this, and we may, but Dr. Richard
Krajek was quoted as saying that in the files I had the ``crown
jewels of the U.S. nuclear arsenal.''
Was that an accurate statement in your opinion, Dr.
Richter, or an overstatement?
Mr. Richter. I think it was an overstatement to the effect
that we were building a Cold War weapon and the Cold War is
over now and the Cold War ended when the Soviet Union
collapsed, I believe in 1989.
So all of a sudden the terror, the balance of terror
changed and you do not have to build a weapon that way anymore.
It is very expensive, very costly.
Senator Specter. Well, while it is true that the Cold War
is over, or so we hope, with the Soviet Union and now with
Russia, there are other major threats to national security in
the world.
Mr. Richter. Yes.
Senator Specter. So the question then becomes whether that
information in the wrong hands could pose a major threat to the
United States.
What we are trying to get a handle on here and these are
very complex subjects, we are trying to get a handle on just
how serious this information was. When you talk about changing
the global strategic balance, that is cataclysmic. When you
talk about crown jewels, you are talking about the most
important information.
Dr. Paul Robeson stated that the information posed a truly
devastating risk to national security. Would you agree or
disagree with that, Dr. Richter?
Mr. Richter. I do not agree with it.
Senator Specter. Why not?
Mr. Richter. In order to develop the kind of nuclear
weapons that the United States, Russia, China and Britain and
France have, you need to have four nuclear materials--
plutonium, uranium, tritium, and lithium-6. Now if you go into
the more recent aspirants to it, like India and Pakistan, they
do not have all of those and without those, they do not have
the ingredients. They do not even have the kitchen.
So what I am saying is that there is a large dichotomy
between the participants in this nuclear stand-off and the big
four I have named--the United States, Russia, Britain and
France. The rest of them, it is not going to help them much.
Senator Specter. Can other countries develop the so-called
kitchen?
Mr. Richter. Yes, they can.
Senator Specter. And would this information then be of
great significance to them if they develop the kitchen?
Mr. Richter. It could be, if they want to spend the
national resource on it.
Senator Specter. Dr. Younger, do you agree or disagree with
the statement attributed to Dr. Richard Krajek that the
information in the files constituted the crown jewels of the
U.S. nuclear arsenal?
Mr. Younger. I agree.
Senator Specter. And do you agree or disagree with what Dr.
Paul Robeson said, that the information posed a truly
devastating risk to national security?
Mr. Younger. I agree.
Senator Specter. Dr. Younger, what is your response to what
Dr. Richter has said with respect to those four items? Are they
indispensable ingredients for another nation to pose a really
serious threat to U.S. national security?
Mr. Younger. A nation needs at least a capability to
produce enriched uranium or plutonium and beyond that, the
additional materials will improve the efficiency of the
weapons. But a basic capability can be obtained with either
uranium or plutonium.
Senator Specter. So you are saying, contrary to Dr.
Richter's assertion, that you do not need all four of those
elements.
Mr. Younger. You need all four elements for a sophisticated
nuclear weapon. However, you can make a basic nuclear weapon
with only one or two.
Senator Specter. We are now 15 minutes into the vote, a 20-
minute vote, so I am going to have to recess the hearing
temporarily. There is a second vote and we shall return as
promptly as we can.
The hearing is now recessed.
[Recess.]
Senator Specter. The hearing will now resume.
Dr. Younger and Dr. Richter, what we are struggling with
here is to understand the sequence of events which led Judge
Parker to change his view. And you, Dr. Younger, and others
testified before Judge Parker in December at the bail hearing
and you, Dr. Richter, came to testify in August after there was
later consideration as to whether the bail ought to be changed.
And there is another element here and that is the element
about whether Dr. Lee continued to have possession of the tapes
and there has never been a showing that the tapes continued to
be in existence, at least at this point, with Dr. Lee's
contention that the tapes have been destroyed, so that had Dr.
Lee not had dominion over the tapes, there is no reason to keep
him in custody because he cannot tell somebody where the tapes
are and have them disclosed to some third party.
And Judge Parker said he found clear and convincing
evidence to keep Dr. Lee in detention but then apparently that
had slipped by the time Dr. Richter testified.
Dr. Richter, you work for Department of Energy, of course,
right?
Mr. Richter. I am a retiree and I go back to the laboratory
a couple of days a week as a laboratory associate.
Senator Specter. And you have worked for DOE?
Mr. Richter. I worked for----
Senator Specter. And you still do to the extent you have
just described.
Mr. Richter. Exactly.
Senator Specter. And Dr. Younger, of course, you are an
employee of the Department of Energy.
Mr. Younger. I am an employee of the University of
California, which is a contractor to the Department of Energy.
Senator Specter. OK; so your working for the Department of
Energy is subject to the contract through the university.
Mr. Younger. Yes, Senator.
Senator Specter. Dr. Richter, were you consulted by the
government for an evaluation of the damage that this
information would have done to the United States prior to the
December bail hearing?
Mr. Richter. No, sir. You mean August, I hope.
No, I was not consulted by the government. I had one
interview with the prosecution team and that is all.
Senator Specter. When?
Mr. Richter. Perhaps April, sometime in that time frame.
Senator Specter. Did you tell them essentially the same
things you have testified here today?
Mr. Richter. Pretty much, yes, sir.
Senator Specter. Dr. Richter, do you know if the
government, the Department of Justice, made an effort prior to
the December bail hearing to develop a point of view such as
you have testified, which downplays the importance of this
information?
Mr. Richter. I have no idea because I was not consulted.
Senator Specter. Dr. Younger, do you know if the government
made any effort to obtain, as Judge Parker put it, a more
balanced view prior to the bail hearing in December 1999?
Mr. Younger. Senator, I was not privy to all of the
discussions of the prosecution. I merely provided a technical
opinion when we were asked for it. I do not know that.
Senator Specter. Describe briefly just what the government
said to you. Who contacted you for the Department of Justice?
Mr. Younger. I was contacted by the U.S. Attorney's Office
in Albuquerque and I was asked to provide my opinion on----
Senator Specter. Who specifically in the U.S. Attorney's
Office?
Mr. Younger. Mr. Kelly, U.S. attorney, and Robert Gorence,
the assistant U.S. attorney.
Senator Specter. And what did they say to you?
Mr. Younger. They asked me to provide my opinion as to the
importance of the information that Dr. Lee downloaded from a
technical perspective. They also asked for a primer on nuclear
explosives design and a history of the codes that were on the
tapes.
Senator Specter. You are not the judge, Dr. Richter, but do
you think that there was clear and convincing evidence that the
information Dr. Lee had rose to the level of being the crown
jewels or extraordinarily sensitive for the United States
government?
Mr. Richter. They are certainly sensitive but not by any
stretch of the imagination crown jewels.
Senator Specter. Dr. Younger, again you are not the judge
but in your view, do you believe that taking the totality of
the evidence, your statements, Dr. Richter's statements, the
other opinions rendered, that there is clear and convincing
evidence that this information amounted to the crown jewels?
Mr. Younger. If the design of the most sophisticated
nuclear weapons on the planet are not the crown jewels of
nuclear security, I do not know what is.
Senator Specter. OK. I take that to be a yes?
Mr. Younger. It is a yes.
Senator Specter. OK; we have not talked to--Senator
Grassley has indicated an interest in getting Judge Parker's
views and I think that is a solid line. So far, what has been
done is to talk to his law clerk and it may be that by the time
we pursue this matter further, that we will want to talk to
Judge Parker. Whether Judge Parker will want to talk to us is
up to Judge Parker but if we cannot find the answers as to what
Judge Parker had in mind, it may be a direct route to talk to
Judge Parker.
I just want to make that comment because Senator Grassley
had made a reference to Judge Parker, so that the information
would be explicit as to what we have done and what we have not
done.
Mr. Vrooman, thank you for joining us. You are now an ex-
employee of the Department of Energy.
Mr. Vrooman. Yes, sir.
Senator Specter. And you are living in----
Mr. Vrooman. Bozeman, Montana.
Senator Specter. Montana, and you have come a long
distance, so we appreciate your being here and we look forward
to your opening statement.
STATEMENT OF ROBERT VROOMAN, FORMER COUNTERINTELLIGENCE
OFFICER, DEPARTMENT OF ENERGY
Mr. Vrooman. Thank you.
Chairman Specter and members of the committee, I am honored
to have the opportunity to testify before this committee about
the investigation of Wen Ho Lee.
In this opening statement I will address three issues:
ethnic profiling, FBI and Los Alamos cooperation during the
Kindred Spirit investigation, and the 1994 FBI investigation of
Dr. Lee.
Many people have questioned shy the investigators into the
original allegations of Chinese nuclear espionage failed to
look beyond Los Alamos National Laboratory and Dr. Lee. Those
asking this question include such distinguished people as
former Senator Rudman, Senators Thompson and Lieberman, and
recently FBI Director Louis J. Freeh. It is my opinion that the
Kindred Spirit investigators had a subtle bias that the
perpetrator had to be ethnic Chinese. I base my opinion on
their comments and actions prior to and during the
investigation.
These comments include noting something nefarious about the
number of Chinese restaurants in Los Alamos, the number of
Chinese postdoctoral employees and suggesting that DOE should
not allow ethnic Chinese to work on classified programs.
In April 2000, a Los Alamos scientist who worked on
intelligence programs wrote a letter to the employee news
bulletin. He said, ``While I was assigned to NSI-9''--that is
the Intelligence Division--``I supported on a part-time basis
the counterintelligence investigation into the alleged Chinese
espionage at Los Alamos. Based on my experience and
observations, I concluded that racial profiling of Asian-
Americans as a result of the investigation indeed took place,
but principally at the Department of Energy. Further, DOE
personnel directed some Los Alamos National Laboratory staff to
undertake research that profiled Asians and Asian-Americans at
the laboratory. I do not believe any of us were happy with
this. I feel insulted personally and professionally that the
DOE is seeking to spread the tarnish that belongs on it by
having the weapons complex undergo the mandatory diversity
stand-down by May 5.''
Now the author of the above letter is referring to a
request from DOE headquarters to Los Alamos and Livermore for a
list of Chinese-Americans and the programs that they were
working on. Both laboratories refused to provide such a list
because the request was clearly in violation of Executive Order
12333.
Director Freeh recently testified to a joint hearing of the
Intelligence and Judiciary Committees that the FBI opened a
case on Lee based on the DOE administrative inquiry which
stated that, and I am quoting now, ``Wen Ho Lee appears to have
the opportunity, means and motivation'' to compromise the W-88
information. Director Freeh is correct that the DOE inquiry
stated this, but I would like to add that every time Lee's
motivate was discussed, it came down to his ethnicity. There
was never any other motive discussed.
I would also like to note that the DOE inquiry was flawed
because Lee did not have ready access to all the W-88/Mark 5
reentry system or other U.S. system that was similarly
compromised. He would seem, at best, to be only one source of
the complete leak. The FBI, of course, had no way of knowing
this unless the DOE inquiry was a complete and rigorous
investigation.
In spite of our reservations about the Kindred Spirit
investigation, we cooperated fully with the FBI in all
subsequent investigations involving Dr. Lee. From the day the
FBI informed us that they intended to conduct an investigation
into Dr. Lee, FBI representatives expressed similar
reservations about the Kindred Spirit analysis. In my opinion,
the FBI should not have accepted this case until certain issues
were resolved, and I am willing to elaborate on these issues in
any closed session if the committee desires.
As a result of serious questions about the DOE inquiry, the
FBI did not assign an agent to the case full-time. It was added
to one agent's already full caseload. The failure to
aggressively resolve the allegations against Dr. Lee was a
great source of frustration both to Los Alamos Director Sig
Hecker and to me.
On February 14, 1997 I had an acrimonious meeting with the
FBI counterintelligence squad chief in Albuquerque and he
agreed to assign an agent to the case full-time. After this
occurred we saw some progress on the case, including a FISA
request.
On October 15, 1997 that agent told me that he had to stop
working on the Wen Ho Lee case to work on the Peter Lee case
and he requested our assistance in that investigation. Once
again we had no agent assigned full-time to the Wen Ho Lee case
and that was the situation when I retired from Los Alamos on
March 13, 1998.
On February 23, 1994, during an officially approved six-
person Chinese delegation to Los Alamos, Dr. Lee met with a
member of that delegation. This meeting occurred in the
presence of all the United States and Chinese participants,
however, and was reported in writing to the FBI by a U.S.
participant. This document is classified but is available to
the committee from the author if they would like to have it.
I was not aware that this meeting resulted in an FBI
investigation until Director Freeh testified to that on
September 26, 2000. For the record, let me state that this
investigation occurred without any request for assistance from
Los Alamos. We were not aware of any renewed FBI interest in
Dr. Lee until July 3, 1996.
We should not lionize Dr. Lee. He has much to answer for.
On the other hand, he was not treated fairly. There are many
examples, but I am most disturbed by the leaking of the
investigation, along with his name, to the media. This single
act destroyed the integrity of the investigation, as well as
adversely impacting Dr. Lee. As a result of this, I doubt if we
will ever solve the mystery of how the Chinese obtained U.S.
nuclear weapons secrets.
Finally, I am concerned about the collateral damage from
the Lee case, particularly the adverse impact it has had on our
weapons labs. Former Senator Howard Baker and former
Representative Lee Hamilton recently reported that the
arbitrary security changes at the national labs has damaged
morale, productivity and recruitment.
In my opinion, this is all the more outrageous because the
national labs have had and continue to have good security. If
you look at what really counts, which are results, not audits
of paperwork and procedures, security at the labs has been
better than all other government agencies. The results are
reflected in the number of people in the last 50 years who have
been convicted, confessed to or fled the country to avoid
prosection for espionage. When we look at this by organization,
the results reflect favorably on the DOE complex. We have two
cases in the DOE and neither case involved the compromise of
nuclear weapons. During the same time period there were 10
cases in the CIA, three in the FBI and seven in the National
Security Agency and over 80 in the Department of Defense. When
one considers that the DOE population is at least an order of
magnitude larger than all but the DOD, the record is
impressive.
I believe that we must act quickly to repair the damage to
our national labs so that the talent in these labs is available
to meet the challenges of the 21st century. Thank you.
Senator Specter. Thank you very much, Mr. Vrooman.
Before we go to questions, if it is all right, Senator
Grassley, we will hear an opening statement from Mr. Notra
Trulock.
Mr. Trulock, let me say for the record that if there are
any questions asked of you which you prefer not to answer,
there has been some publicity about your being under
investigation, so there may be some sensitive matters. We
appreciate your being here but because of what we had heard
about an investigation, we decided not to call on you but we
appreciated your call and your willingness to come forward, but
I want you to feel entirely comfortable. If something gets
close to the line and you are represented by counsel, so he is
here to protect you and I discussed the ground rules with Mr.
Klayman yesterday to be clear that you would say only what you
felt comfortable saying.
So within those guidelines, you may proceed.
STATEMENT OF NOTRA TRULOCK III, FORMER INTELLIGENCE CHIEF,
DEPARTMENT OF ENERGY, ACCOMPANIED BY LARRY KLAYMAN, COUNSEL
Mr. Trulock. Thank you, Senator. I appreciate that.
Senator Grassley, good morning. My name is Notra Trulock. I
am the former director of intelligence at the Department of
Energy. I wish to thank the members of the Senate Judiciary
Committee and Senator Specter, you personally, for providing
this opportunity to speak out on the facts of the
administrative inquiry into what is known as the Kindred Spirit
Chinese espionage case.
For months I have remained silent while my role in the
investigation was discussed in the media, in the course of Dr.
Lee's detention hearings and up here on Capitol Hill. I must
tell you that neither my family, my friends, nor I can
recognize the individual that has been portrayed and depicted
in these very public proceedings. And I wish to thank the
committee for providing me this opportunity to try to set the
record straight.
Much of what you have heard or read about DOE's conduct of
the administrative inquiry into Chinese nuclear espionage is
just plain wrong. Much of what you have heard or read about my
role in that inquiry is worse than wrong; it is defamatory.
Indeed, I have been forced to file libel and slander lawsuits
against Mr. Charles Washington, Mr. Robert Vrooman, Energy
Secretary Bill Richardson and Dr. Wen Ho Lee.
I have prepared a formal statement for the record. I
request that it be entered at this time.
Senator Specter. Without objection it will be made a part
of the record.
Mr. Trulock. I will confine myself to three main points.
First, what was the administrative inquiry? How was it
conducted, and by whom?
The DOE administrative inquiry was conducted with the full
cooperation and participation of the Federal Bureau of
Investigation. The FBI approved our methodology and approach,
provided an experienced agent to participate with DOE during
site visits to the DOE labs, reviewed and approved our draft
final inquiry report, and enthusiastically accepted our report
in June 1996.
The DOE/FBI's team's first visit to the laboratory occurred
in January 1996. DOE at that point, at least DOE, had no
preconceived ideas or notions about possible suspects. Indeed,
DOE first learned of Dr. Wen Ho Lee when he was brought to our
attention by Robert Vrooman in January 1996, not in October
1995, as the FBI has told Congress and the President's Foreign
Intelligence Advisory Board.
The administrative inquiry was a records check, a records
check as is performed in routine security reviews on a daily
basis in Washington, nothing more, nothing less. DOE, by
statute, is prohibited from conducting anything more than a
record check and then only at DOE facilities. By law, we were
not authorized to examine records at Department of Defense
facilities or at Department of Defense contractors. We
repeatedly told the FBI that W-88 information might reside at
these facilities but that we at DOE were unauthorized to extend
our inquiry to those facilities.
Furthermore, we did not limit our search to Los Alamos. The
DOE/FBI team visited Los Alamos, Sandia National Laboratory in
Albuquerque and Livermore National Laboratory outside of San
Francisco. Further, we had records checked at Rocky Flats in
Denver, CO and Pantex in Amarillo, TX, both industrial
facilities that would have been involved in the production of
the W-88.
Our final report listed 12 investigative leads for the FBI,
not just from Los Alamos but also from Livermore. Not just
Asian-Americans but also Caucasians from both laboratories. In
fact, it was the FBI that focussed solely on Dr. Lee. DOE
believed that the FBI would pursue all 12 leads with equal
vigor and diligence.
Robert Vrooman and Charles Washington have alleged that in
1996 they told me that no evidence concerning Dr. Lee existed
and that ethnic profiling had governed my actions. Let me state
this clearly, recognizing that I am under oath. At no point in
1996, 1997 or 1998 did Robert Vrooman or Charles Washington
express any concern, disagreement, dissent or protest with the
conduct of the administrative inquiry or the conduct of the
inquiry's report.
Mr. Washington was the acting director of the Department of
Energy's Office of Counterintelligence during the conduct of
the administrative inquiry. He supervised the DOE individuals
conducting the inquiry. He reviewed and approved DOE's proposed
administrative inquiry methodology. He reviewed and approved
the inquiry team's travel. He reviewed and approved the inquiry
team's report and approved its transmission to the FBI.
One of the most absurd allegations surfaced thus far, which
was reported in the Washington Post, the Los Angeles Times and
elsewhere, concerns the contents of a memo purportedly sent to
me by Mr. Washington in 1996. Mr. Washington has repeatedly
claimed that he warned me in the memo there was no evidence
against Dr. Lee and the case should be closed. The Post even
claimed to have a copy of the memo. In fact, I have seen a copy
of that memorandum and I recall clearly its contents. The
memorandum was dated May 16, 1996. The memo makes no mention of
Dr. Lee. It recommends that we transmit the record of our
inquiry to the FBI and it notes that DOE is ``close to becoming
involved in an espionage investigation, which we do not have
the authority to do.''
In February 2000, I wrote to Secretary Richardson
requesting that he make this memo available to the Justice
Department to clear up these spurious allegations. My
information is that DOE has refused to provide that memo to
Justice or to the appropriate oversight committees on Capitol
Hill, as it has been with so many documents over the past two
years that are relevant to the oversight function of this and
other committees on Capitol Hill.
Mr. Vrooman was present at our initial briefings for the
FBI. He assisted our team during their visit to Los Alamos in
January 1996. He was the first to identify Dr. Lee to our team
during that visit and recommended that we focus our attention
on him. He was present at our briefing for the FBI in the late
spring of 1996 and I personally saw Vrooman at least six times
over the course of the next three years. My secretary kept
careful records of in-coming phone calls throughout this
period. At no time did Vrooman call me to discuss his concerns.
He was a key participant in a DOE/FBI Los Alamos meeting in
April 1997 held at Los Alamos that focussed on the FBI's
handling of the Lee investigation to that point. At no time
during that or any other meeting did Vrooman protest or express
any dissent or concern to the FBI orDOE's participants about
the FBI's investigation of Lee. In each instance, as the resident Los
Alamos counterintelligence official, Vrooman willingly cooperated with
the FBI in its handling and approach to Dr. Lee.
Finally, Vrooman and especially Mr. Washington have alleged
that my actions were motivated by my racist views toward
minority groups--quote, closed quote. In fact, the facts of my
management tenure at DOE put the lie to this allegation. I
repeatedly opened new career opportunities for women and
minorities during my tenure and twice received awards in
recognition of my efforts on behalf of women and minority
employees within my office from the DOE chapters of Federally
Employed Women and Blacks in Government. I have brought with me
today one photograph that was taken during one of those award
ceremonies. I would be happy to provide it to the committee.
The Director of Central Intelligence, George Tenet, awarded
the highest intelligence community medal for distinguished
service to one of the key participants and managers in the
counterintelligence aspects of the Kindred Spirit case. He also
awarded and rewarded other DOE managers and laboratory
scientists, including Dr. John Richter, for their contributions
to the U.S. intelligence community in the Kindred Spirit case
during my tenure as director of intelligence.
Allegations made by disgruntled employees from the DOE
Office of Counterintelligence against me were investigated by
the department and repeatedly found to be baseless. Time after
time the conclusion of independent outside investigators,
``that complainant was not discriminated against with respect
to the matters raised in his complaints.''
Mr. Washington has alleged that he won his complaint but
the settlement arrived at after I left the department clearly
states that it shall not constitute an admission of liability
by the Department of Energy. Secretary Richardson's willingness
to settle this case has caused great discontent within the
department. Clearly the settlement serves Secretary
Richardson's larger purposes.
Mr. Washington has alleged that I assaulted him and this
allegation has been repeated in the national media. I have with
me today the 1997 police report of the final action on that
allegation. The conclusion of that report is, ``Based on the
facts of the case, no assault occurred.'' I repeatedly
requested the department to take action on this false
allegation but the department declined to do so.
Robert Vrooman has alleged that I stated no ethnic Chinese
should be allowed to work on U.S. nuclear weapons program. That
statement is categorically false. In fact, I stopped efforts by
senior DOE managers, including Assistant Secretary Victor Reese
and Director of the Office of Nonproliferation and National
Intelligence Kenneth R. Baker, including several others still
at the department, to compile a database on the ethnicity of
American citizens--American citizens with access to classified
nuclear weapons information. I thought this was an outrageous
overreaction to a very serious problem.
In fact, we were concerned about our ability to sustain
counterintelligence safeguards in light of the explosion in the
numbers of foreign nationals at the laboratories, particularly
those from countries on the sensitive country list, like
Russia, India and China. But we were hardly alone in our
concerns. The Government Accounting Office repeatedly cited DOE
for its lack of counterintelligence and security safeguards to
protect sensitive information in light of the ever-increasing
numbers of sensitive country foreign nationals at our labs.
A 1997 FBI report on DOE counterintelligence made the same
observation and recommended a number of fixes. Sadly, DOE
management resisted these recommendations.
In 1997 FBI Director Louis Freeh told DOE managers that if
DOE failed to address its security vulnerabilities, then the
Congress would do it for DOE. He was right. While many now
decry the heavy-handed security regime imposed by the Hill on
the labs, they only have DOE managers to thank for the state of
affairs in the laboratories today. These officials resisted
internal reforms in 1997 and even delayed implementation of the
mandates of the 1998 presidential decision directive until well
into 1999 and the year 2000.
In conclusion, I would point out that it is now fashionable
to express doubts about whether Chinese nuclear espionage even
occurred. I would remind the committee that the unclassified
intelligence community damage assessment, published in May
1999, concluded that the Chinese had indeed obtained through
espionage U.S. nuclear weapons design information, including on
the W-88 Trident D-5 warhead.
Further, the assessment concluded that information probably
accelerated China's efforts to develop modern nuclear weapons.
That conclusion mirrors very accurately the conclusion arrived
at by a prestigious group of laboratory nuclear weapons
scientists in 1995. I would add that Dr. John Richter was an
important member of the group that formulated and developed
that assessment.
The CIA reiterated their judgments about Chinese espionage
later in 1999 in an estimate on ballistic missile developments.
I am not aware that the DCI or any other intelligence community
spokesman have contradicted or revised this estimate.
So for 5 years now we have been aware of the Chinese
acquisition of some of our most sensitive nuclear weapon
secrets. Are we any closer today to determining the source of
this compromise? I am afraid that the answer is no.
That concludes my statement. I am happy to take questions.
[The prepared statement of Mr. Trulock follows:]
Prepared Statement of Notra Trulock III
My name is Notra Trulock, III, and I am the former Director of
Intelligence at the Department of Energy. I wish to thank the members
of the Senate Judiciary Committee, and Senator Arlen Specter, for
providing this opportunity to speak out on the facts of the Wen Ho Lee
investigation. For months, I have remained silent while my role in the
investigation was discussed in the media, in the course of Dr. Lee's
bail hearings, and on Capitol Hill. Neither my family, my friends, nor
I can recognize the individual portrayed in these very public
proceedings. I wish to thank the Committee for providing me this
opportunity.
Much of what you have read or heard about DOE's conduct of the
Administrative Inquiry into Chinese nuclear espionage is just plain
wrong. Much of what you have heard or read about my role in that
inquiry is worse than wrong, it is defamatory. Indeed, I have been
forced to file libel and slander lawsuits against Mr. Charles
Washington, Mr. Robert Vrooman, Energy Secretary Bill Richardson, and
Dr. Wen Ho Lee.
I request that my formal statement be entered for the record. Let
me discuss three main points.
1. What was the Administration Inquiry, how was it conducted and by
whom?
The DOE Administrative Inquiry was conducted with the full
cooperation and participation of the FBI. The FBI approved our
methodology and approach, provided an experienced agent to participate
with DOE during site visits to the DOE labs, reviewed and approved our
draft final inquiry report and enthusiastically accepted our report in
June 1996. The DOE-FBI team's first visit to a lab site occurred in
January 1996; DOE, at least, had no preconceived ideas or notions about
possible suspects. Indeed, the DOE team first learned of Dr. Wen Ho Lee
from Robert Vrooman in January 1996, not in October 1995 as the FBI
told Congress and the PFIAB.
The AI was a records check as is performed in routine security
reviews on a daily business. Nothing more, nothing less. DOE by statue
is prohibited from conducting anything more than a records check, and
then only at DOE facilities. By law, we were not authorized to examine
records at DOD facilities; we repeatedly told the FBI that W88
information might reside at these facilities, but that we DOE were
unauthorized to look there.
We did not limit our search to Los Alamos. The DOE-FBI team visited
Los Alamos, Sandia, and Livermore. We had records checked at Rocky
Flats and Pantex. Our final report listed 12 ``investigative leads''
for the FBI, not just from Los Alamos but also from Livermore. In fact,
it was the FBI that focused solely on Dr. Lee; DOE believed that the
FBI would pursue all 12 leads equally.
2. It is alleged that Robert Vrooman and Charles Washington told me
in 1996 that no evidence existed concerning Dr. Lee and that ethnic
profiling governed my actions.
Let me state this clearly: at no point in 1996, 1997, or 1998 did
Robert Vrooman or Charles Washington express any concern, disagreement,
dissent, or protest with the conduct of the Administrative Inquiry or
the content of the Inquiry's report. Mr. Washington was the Acting
Director of DOE/CI during the conduct of the Administrative Inquiry; he
supervised the DOE individuals conducting the inquiry, he reviewed and
approved DOE's proposed AI methodology, he reviewed and approved the
inquiry team's travel, he reviewed the inquiry team's report and
approved its transmission to the FBI.
One of the most absurd allegations thus far, which has been
reported in the Washington Post, LA Times and elsewhere, concerns the
contents of a memo sent to me by Charles Washington in 1996. Mr.
Washington has repeatedly claimed that he warned me in the memo that
there was no evidence against Dr. Lee and that the case should be
closed. The Post even claimed to have a copy of the memo. In fact, I
have seen a copy of the memorandum, dated May 16, 1996.
Suffice to say the memo makes no mention of Dr. Lee, it recommends
that we transmit the record of our Inquiry to the FBI, and it notes
that DOE is ``close to becoming involved in an espionage investigation,
which we do not have the authority to do.'' In February 2000, I wrote
to Secretary Richardson requesting that he make this memo available to
the Justice Department to clear up these spurious allegations. My
information is that DOE has refused to provide that memo to Justice or
to the appropriate oversight committees on Capitol Hill. As it has with
so many documents over the past two years that are relevant to the
oversight function of this and other committees on Capitol Hill.
Mr. Vrooman was present at our initial briefings for the FBI, he
assisted our team during their visit to Los Alamos in January 1996, he
was the first to identify Dr. Lee to our team during that visit and
recommended that we focus our attention on him, he was present at our
briefing for the FBI in late Spring 1996, and I personally saw Vrooman
at least six times over the course of the next three years. My
secretary kept records of incoming phone calls throughout this period;
at no time, did Vrooman call to discuss his concerns with me. He was a
key participant in a DOE-FBI-Los Alamos meeting in April 1997 that
focused upon the FBI's handling of the Lee investigation to that point.
At no time during that or any other meeting did Vrooman protest or
express any dissent or concern to the FBI or DOE participants about the
FBI's investigation of Lee. In each instance, as the resident Los
Alamos CI official, Vrooman willingly cooperated with the FBI in its
handling and approach to Dr. Lee.
3. Finally, Mr. Vrooman and especially Mr. Washington have alleged
that my actions were motivated by my ``racist views toward minority
groups.''
The facts of my management tenure at DOE put the lie to this
allegation. I repeatedly opened new career opportunities for women and
minorities during my tenure and twice received awards in recognition of
my efforts on behalf of women and minority employees within my office
from the DOE chapters of FEW and Blacks in Government. The Director of
Central Intelligence awarded the highest Intelligence Community medal
for distinguished service to one participant in KINDRED SPIRIT case; he
also rewarded other DOE managers and Laboratory scientists for their
contributions to the U.S. Intelligence Community during my tenure.
Allegations made by disgruntled employees from the DOE Office of
Counterintelligence against me were investigated by the Department and
repeatedly found to be baseless. Time after time, the conclusion of
independent outside investigators: ``that Complainant was not
discriminated against with respect to the matters raised in his
complaints.''
Mr. Washington has claimed that he won his complaint, but the
settlement, arrived at after I had left the Department, states clearly
that it ``shall not constitute an admission of liability'' by DOE.
Secretary Richardson's willingness to settle this case has caused great
discontent in the Department, but the settlement served Richardson's
larger purposes.
Mr. Washington has alleged that I assaulted him and this allegation
has been repeated in the national media. I have the Federal Protective
Service's 1997 final report of the incident. The conclusion: ``based on
the facts of the case no assault occurred.'' I repeatedly requested
that the Department take action on this false allegation, but the
Department refused to do so.
Robert Vrooman has alleged that I stated that no ethnic Chinese
should be allowed to work on U.S. nuclear weapons programs. Again,
categorically false. In fact, I stopped efforts by senior DOE managers,
including several still at the Department, to compile a database on the
ethnicity of American citizens with access to classified nuclear
weapons information. I thought this an outrageous overreaction to a
serious problem.
We are concerned about our ability to sustain counterintelligence
safeguards in light of the explosion in numbers of foreign nationals at
the labs, particularly those from countries on the sensitive list like
Russia, India, and China. We were hardly alone in our concerns; the
Government Accounting Office repeatedly cited DOE for its lack of
safeguards to protect sensitive information in light of the ever-
increasing numbers of sensitive country foreign nationals at our
nuclear weapons labs. A 1997 FBI report on DOE CI made the same
observation and recommended a number of fixes; sadly, DOE management
resisted these recommendations.
FBI Director Louis Freeh told DOE in 1997 that if DOE management
failed to address its security vulnerabilities, the Congress would do
it for DOE. He was right; while many now decry the heavy-handed
security regime imposed by the Hill on the labs, they only have DOE
management to thank for the state of affairs in the labs today. These
officials resisted internal reforms in 1997 and even delayed
implementation of the mandates of the 1998 Presidential Decision
Directive until well into 1999 and 2000.
In conclusion, I would point out that it is now fashionable to
express doubts that Chinese nuclear espionage even occurred. I would
remind the Committee that the unclassified Intelligence Community
Damage Assessment, published in May 1999, concluded that the Chinese
had indeed obtained through espionage U.S. nuclear weapons design
information, including on the W88 Trident D5 warhead. Further, that
information probably accelerated China's efforts to develop modern
nuclear weapons. That conclusion mirrors very accurately the conclusion
arrived at by a prestigious group of laboratory nuclear weapons
scientists in 1995. The CIA reiterated their judgments about Chinese
espionage later in 1999 in an estimate on ballistic missile
developments. I am not aware that the DCI or any other Intelligence
Community spokesmen have contradicted or revised this estimate.
So, for over 5 years now, we have been aware of the Chinese
acquisition of some of our most sensitive nuclear weapons secrets. Are
we any closer today to determining the source of this compromise?
Senator Specter. Thank you very much, Mr. Trulock.
Senator Grassley.
Senator Grassley. Mr. Vrooman, I would like to have you
elaborate on your comment that whenever Dr. Lee's motive was
discussed it came down to ethnicity. Could you be specific
about what was said and by whom?
Mr. Vrooman. The first example that comes to mind is during
the Thompson-Lieberman hearings. They were in closed session.
Can I do that here or would you prefer I----
Senator Grassley. I will let the chairman make a ruling as
to whether or not he can say something here that was said in
the closed Lieberman hearing.
Senator Specter. Well, I think that depends upon Mr.
Vrooman's assessment as to the propriety of the statement in
open hearing. That is really best judged by the witness.
Senator Grassley. OK; I would ask you to tell us if you
feel like you can because I would like to get as much of this
out in the open as we can.
Mr. Vrooman. Well, the Department of Justice representative
asked the FBI what Lee's motive was because it was not clear to
him and the response was an elaboration on how the Chinese
focus their efforts on ethnic Chinese. That is one example. And
there are others, conversations over the years since this
investigation proceeded, that that was the only motive.
Senator Grassley. OK; could you point to any documentation
that would back up the point that you just made?
Mr. Vrooman. No, sir, I cannot.
Senator Grassley. Or the points that you are making about
ethnicity being of prime concern?
Mr. Vrooman. I do not believe there are any documents.
Senator Grassley. You state, Mr. Vrooman again, you state
that the leaking of Dr. Lee's name had an adverse impact not
only on Dr. Lee but also on the integrity of the investigation
into how the Chinese obtained U.S. nuclear secrets. It is
understandable how the leak would have had an adverse impact
upon Dr. Lee but I would please like to have you explain to me
how it hurt the integrity of the investigation.
Mr. Vrooman. Well, it limited the investigative tools
available to the FBI. For example, a wiretap is hardly useful
if the subject of the wiretap knows he is under investigation.
A false flag operation has the same problem. If the individual
knows he is under investigation, he is not going to bite. And
if there are other people or one other person out there, they
are certainly aware that there is an investigation now.
So what it did is limit the availability of investigative
tools to the FBI.
Senator Grassley. I would like to ask you, Mr. Vrooman, and
then Mr. Trulock if either of you could shed any light on which
agency and who in that agency was behind leaking Dr. Lee's name
to the media.
Mr. Vrooman. I do not have a clue, Senator Grassley.
Senator Grassley. Do you, Mr. Trulock?
Mr. Trulock. I can only provide to you second-hand
information but my information indicates that Dr. Lee's name
came out of the Office of the Secretary at the Department of
Energy.
Senator Grassley. Mr. Vrooman, you mentioned one way in
which Dr. Lee was treated unfairly, that his name was leaked to
the media. What are other ways that you would refer to that he
was treated unfairly?
Mr. Vrooman. Well, the conditions of his confinement I
thought were excessive and that is basically it. This is just
my personal opinion. I thought we could have granted him bail,
given the fact that if he had not given away that information
in 6 years, it was highly unlikely he was going to do it at
this time.
Senator Grassley. Now Mr. Trulock, the documents that we
reviewed as part of this investigation confirm what you say
about the FBI giving its blessing to the administrative
inquiry, so I want to state for the record that that is the
case because the FBI has tried to absolve itself of that
concurrence.
Mr. Trulock. Thank you, Senator.
Senator Grassley. Mr. Trulock, before the administrative
inquiry began there was a panel of scientists convened to reach
a consensus as to whether the W-88 was compromised. Was there a
consensus and if so, what was it?
Mr. Trulock. Let me talk about the process and be careful
about the conclusions of the panel that was convened. They are
still classified, to the best of my knowledge.
But in April 1995, two scientists from Los Alamos brought
to me their concerns that a modern nuclear warhead in our
inventory had been compromised. I considered the allegation to
be sufficiently serious to bring in an individual that I
considered to be the preeminent nuclear scientist in our
laboratory complex, Dr. John Richter. Richter came back, joined
us in May of 1995, brought forth yet another paper indicating
that it was their concern that, in fact, it was the W-88
evidence that had been compromised.
At that point I considered the allegations sufficiently
serious enough to brief my superiors, Undersecretary Charles
Curtis, Mr. Baker, who I mentioned earlier. We also informed at
that point John Lewis, who was then the assistant director of
the National Security Division of the FBI.
It is customary within the laboratory complex to conduct a
peer review of such conclusions of such enormity. I asked
Michael Henderson from Los Alamos National Laboratory to put
together a peer review group. He assembled a group, including
Dr. Richter. The group had decades of experience in the design,
production, development and testing of nuclear weapons. Among
them they had nearly 100 nuclear tests in Nevada to their
credit. Dr. Richter alone had 40.
The group met over the summer 1995. Initially the debate
was contentious and there were conflicting views as to whether
the Chinese had benefitted or the extent to which they had
benefitted from acquisition of the information.
At that point the CIA made available to us what has become
known as the walk-in document. Again the contents of the walk-
in document are classified but I will tell you that at that
point it is my recollection that the group coalesced and came
to a set of conclusions that were briefed to Undersecretary
Curtis in September of 1995 and briefed again to Undersecretary
Curtis in March 1996.
It is alleged that there were minority views within that
group. During the presentations to Mr. Curtis, both in
September and March, I encouraged, as if I would need to, the
laboratory scientists to speak out. The presentations were made
by the scientists themselves. I can recall nodissent being
expressed during the meetings with Mr. Curtis. I do know if Dr. Richter
has a dissent from that. That is my recollection and it was on the
basis of that conclusion and Mr. Curtis's direction that we referred
the case initially to the FBI.
The FBI refused to take it, asserting that it was too old
and the trail was too cold. This would be in the fall of 1995.
Senator Grassley. So it was your opinion then that there
was a sufficient basis upon the conclusion of the panel's work
to move ahead with the investigation?
Mr. Trulock. It was the conclusion of the Department of
Energy, as expressed by Mr. Curtis, the undersecretary, that
indeed there was sufficient basis to refer the case to the FBI.
Senator Grassley. Dr. Richter, I saw you shaking your head.
You are in concurrence with everything that Dr. Trulock said,
or at least the conclusion?
Mr. Richter. I agree with the conclusion, yes, but there
are some details, but I do not think they are very important.
Senator Grassley. My last question is to Dr. Younger. Quite
frankly, based upon just press reports that we have, but we
were told in these press reports that Dr. Lee was not even
required to lock this restricted data in his desk overnight. Is
this true? And if it is true, then doesn't that say something
about that either the restricted data is not as important as
what people thought it was or it was not properly handled by
not having it locked up?
Mr. Younger. The material was kept in a Q area--that is, a
secret restricted area--which was behind a fence at the
laboratory. It was in a limited access area, a further level of
protection. And further, it was behind a locked door.
Senator Grassley. So then the press reports are wrong.
Mr. Younger. That is correct.
Senator Grassley. Thank you, Mr. Chairman.
Senator Specter. Thank you very much, Senator Grassley.
Mr. Vrooman, the documents were provided to this
subcommittee just last night that I want to start with, which
is a memorandum from Craig Schmidt of the FBI Albuquerque
office. ``On August 25, 1995, Bob Vrooman, who oversees
counterintelligence matters, advised the Los Alamos National
Laboratory's report regarding Kindred Spirits will be provided
to Notra Trulock of DOE headquarters in approximately two
weeks. Further, a `smoking gun has been found.' Vrooman learned
of the information from Diane Saran.''
Do you recollect that, Mr. Vrooman?
Mr. Vrooman. No, I do not. I did have a meeting with Diane
Saran, who unfortunately is deceased now, and this is puzzling
to me. I do not know what they are talking about.
Senator Specter. Reference to a smoking gun is a pretty
dramatic statement to appear in an FBI memorandum attributed to
you. If there had been such a reference, do you think it is
something you would recollect?
Mr. Vrooman. Yes, if they can elaborate, but this is the
first time I have seen this, obviously.
Senator Specter. Well, we just saw it yesterday. We wanted
to make it available to you as soon as we could. But if there
is some reference to a smoking gun, we would like to pursue it.
Mr. Vrooman. Yes, so would I.
Senator Specter. How do you suggest we pursue it?
Mr. Vrooman. Ask the FBI for elaboration. What is that
smoking gun? I do not know what it is.
Senator Specter. Well, they are referring to you as the
source of the information. I think if we ask them, they are
going to refer us to you.
Mr. Vrooman. Well, they had to get this from Albuquerque.
When I get back home I will call the agent that was working the
case at that time and ask him what the smoking gun is, if you
would like me to do that.
Senator Specter. We will pursue that line, as well, and if
you would, as well, we would like to get to the bottom of that.
Mr. Trulock, there has been a fair amount of information on
the Department of Energy and Secretary Richardson responding in
December when the Cox Committee was about to finish its
investigation. And I refer first to an FBI document from Neil
Gallagher, which says, ``William Richardson, Secretary,
Department of Energy, may call Director Freeh about this
investigation on Monday, December 21, 1998. On December 17 and
18, 1998, DOE counterintelligence advised they wanted to try
and neutralize their employees' access to classified
information prior to the conclusion of the Cox Committee
hearing this month.'' And that is rubbed out and written in,
``prior to issuance of a final report by the Cox Committee.''
Then there is a deposition of Craig Schmidt, FBI agent,
which was taken in July of 1999, which reads, in part, as
follows from page 91. ``The Department of Energy was becoming
more and more concerned about how they would appear and how
they were appearing during the committee meetings and it was
becoming very urgent for them to look like they were doing
something. Ergo, they decided on their own, we have to
interrogate and interview Lee Wen Ho--that is their
articulation--and we have to jerk his clearance or his access
and we expect the FBI--we're begging the FBI, please resolve
this investigation in the next 30 days or 60 days so we can
fire the guy.''
On the next page, 92, ``There was a new secretary of energy
there who all of a sudden had a big need to show that they were
correcting all the problems and if that meant immediately
firing Lee Wen Ho, regardless of whatever it was the FBI was
doing, they were going to do it as soon as possible, so they
were taking their own action on this.''
The third document, excerpts from a DOE report of inquiry,
July 27, 1999, ``Mr. Schiffer informed the Office of Inspector
General that he first heard Mr. Lee's name on December 21.''
And then skipping down, ``The secretary wanted Mr. Lee to be
fired.''
What knowledge do you have of action taken by Secretary
Richardson, if any, concerning firing Dr. Lee or taking some
action as a result of the release of the Cox Committee report,
which was imminent at about that time?
Mr. Trulock. Senator Specter, let me make two points. First
of all, by this time I had been removed from my position as
director of intelligence at the Department of Energy and was
replaced by Mr. Larry Sanchez, a CIA employee who Secretary
Richardson brought with him into the department.
Secondly, I was no longer the director of
counterintelligence. I had been replaced by Mr. Edward
Curran, an FBI agent who had come over to the department in
1998.
I had no direct or even indirect participation in the
discussions that went on on the seventh floor in Secretary
Richardson's office on this aspect. What I will tell you is
that after our initial appearance and particularly our second
appearance before the Cox Committee in December 1998, there was
a high level of agitation within the Office of
Counterintelligence on the part of Mr. Sanchez and within the
political appointees at the department.
Senator Specter. Well, there have been denials at our
hearing that the Department of Energy acted to remove Dr. Lee,
fire him or take his clearance away, and that it went right to
the secretary. Do you have any knowledge of that?
Mr. Trulock. I know that Mr. Sanchez, who was the director
of intelligence at the time, and Mr. Curran, the director of
counterintelligence, have direct knowledge of that episode.
They were involved in it and they were providing advice to him.
Personally, I will offer my opinion. It certainly is not a
coincidence that after the FBI provided information to the Cox
Committee on Dr. Lee and other espionage cases within the
Department of Energy that for the first time in almost two
years, DOE management became energized about addressing the
advice we had received from Director Freeh in August 1997.
Senator Specter. Well, it is a fact, isn't it, that FBI
Director Freeh told Acting Secretary Moler that Dr. Lee could
be removed from his clearance in August 1997, just after the
Department of Justice rejected the request for a FISA warrant?
Mr. Trulock. I was present at that conversation and my
recollection is that he said that it looks like we will not be
able to get a FISA; my recommendation to you is take this case
off the table. Do what you need to do to protect your sensitive
nuclear weapons computer codes.
Senator Specter. And why didn't the Department of Energy
take action to remove the clearance or to protect itself
instead of leaving Dr. Lee there until early 1999?
Mr. Trulock. I have no idea. I repeatedly asked Deputy
Secretary Moler about actions that she should be taking in this
but they simply were never followed through with.
Senator Specter. And isn't it a fact that on October 15,
1997 Director Freeh repeated the same to Energy Secretary Pena
about taking action to remove Dr. Lee's access to classified
information?
Mr. Trulock. Again I was present at that meeting. There is
a copy of Director Freeh's talking points in the files in the
Office of Intelligence of the Department of Energy and he did
make that point. Secretary Pena did not respond.
Senator Specter. We only have a few minutes left because
unfortunately, the rule has been invoked which requires our
terminating at 11:30. It is a very awkward matter.
Dr. Richter testified about the danger of leaks and we have
had the question about the leaking of Dr. Lee's name. Mr.
Trulock, you have testified that the leaking of Dr. Lee's name
goes right to the Office of the Secretary of Energy. What basis
do you have for that statement?
Mr. Trulock. I have--hold on a second. I need to consult my
lawyer on this.
[Witness consults with counsel.]
Mr. Trulock. One of the reporters involved in the
publication of the stories in question told me directly that
Secretary Richardson had provided to him the name of Wen Ho
Lee.
Senator Specter. He said Secretary Richardson leaked the
name of Dr. Lee?
Mr. Trulock. That is correct.
Senator Specter. And the name of that reporter?
[Witness consults with counsel.]
Mr. Trulock. James Risen, New York Times.
Senator Specter. Well, we are going to pursue that.
Respecting confidentiality of source, that is something which
is of the utmost importance.
Mr. Vrooman, Mr. Trulock has been very emphatic, as you
heard him, at two points in his statement. ``Let me state
clearly at no point in 1996, 1997 or 1998 did Robert Vrooman or
Charles Washington express any concern, disagreement, dissent
or protest on the conduct of the administrative inquiry or the
content of the inquiry's report,'' and this goes to the issue
of being directed at ethnic Chinese.
Do you have a reply to that?
Mr. Vrooman. Yes, sir. When we received the report, which I
agree was in May 1996, I called Mr. Trulock's office; he was
not in. I asked to have him call me and I was going to raise
these issues. And I must admit I was a bit angry. So he did not
return my call. My staff called me down.
My supervisor, who was the lab's director, told me he
wanted me to improve my relationship with Mr. Trulock and what
I was about to say would not have done that.
So we decided, as a matter of course, to let the FBI have
this case. We had worked with them for years. They have always
protected people's civil rights and did the case well and we
thought they would quickly come to the same conclusions that we
had.
Senator Specter. OK; and on the next page Mr. Trulock says,
``At no time during that or any other meeting did Vrooman
protest or express any dissent or concern to the FBI or DOE
participants about the investigation of Dr. Lee.''
Is that accurate?
Mr. Vrooman. Well, I met with FBI agents weekly on this
case and yes, we always discussed reservations about this case.
They came to a head in roughly December 1998 and we were
basically thinking that Lee was not the right man.
Senator Specter. We are going to enter into the record your
declaration concerning your statement about Agent Messemer, ``I
believe that he regularly distorts information'' and your
statement that ``Agent Messemer deliberately mischaracterized
the nature of my comments to him regarding the concerns about
Dr. Lee's travel to the PRC.''
And the whole issue of racial profiling is one which the
subcommittee is going to look at in great detail. We cannot at
this moment.
Judge Parker had documents produced to him which were due
to be produced actually on September 15, which were not because
of the plea bargain. And it may be that that was one of the
motivating factors for the plea bargain, so the government
would not have to produce those. We are going to take a look at
that.
Mr. Wilkins, we have had you sitting around all morning and
before we adjourn I think it appropriate to ask you the couple
of questions which we could not get at our last hearing from
DOE officials who were present, and that is why wasn't the
downloading which Dr. Lee undertook in 1993 and 1994 flagged
and reported to the FBI?
STATEMENT OF RON WILKINS, COMPUTER NETWORK SPECIALIST, LOS
ALAMOS LABORATORY
Mr. Wilkins. That downloading was detected by monitoring
tools at Los Alamos. There were a lot of similar activities at
the time that were investigated and there were reasonable
explanations for them.
I can go into details on how that worked in a closed
session.
Senator Specter. Well, it is true, is it not, that the
downloading by Dr. Lee of a lot of material was noted by the
Department of Energy?
Mr. Wilkins. It was noted by our monitoring tools.
Senator Specter. And it is also true that that was not
transmitted to the FBI, correct?
Mr. Wilkins. That is correct.
Senator Specter. Well, in a context where an investigation
had been started on Dr. Lee in 1982 and there were
investigations going on in 1995 and we are now faced with a
situation where there is a major alleged catastrophe--maybe it
is not alleged; it really is--about his downloading, why wasn't
that information conveyed by DOE to the FBI?
Mr. Wilkins. The fact that Dr. Lee was of interest was not
information that was available to the computer monitoring
intrusion detection operations.
Senator Specter. Well, were there so many people
downloading so much information that the fact itself of the
downloading would not warrant alerting the FBI to the possible
importance of that conduct?
Mr. Wilkins. During that time frame it was common for
unclassified computing to take place in the classified
environment and then results to be downloaded. So indeed there
was a lot of activity, some greater than Dr. Lee's, that was
investigated and dismissed because it was found to be
innocuous.
So yes, there was a----
Senator Specter. We are going to have to go into that at a
later time. We have come to the bewitching hour, regrettably.
It is kind of hard to understand how we can have a rule that
interrupts a hearing of this sort, which is calculated to deal
with the way the Senate is run on collateral issues, but that
is the rule we live under.
So thank you all very much for coming and for the moment,
that concludes this facet of our inquiry. Thank you.
[Whereupon, at 11:35 a.m., the subcommittee was adjourned.]
[Submissions for the Record follow:]
[Additional material is being retained in the Committee
files.]
----------
Submissions for the Record
----------
Department of Energy Chronology--May 6, 1999
1995 Spring-Summer
Reporting indicates that PRC probably had access to sensitive
nuclear information.
Under Secretary Curtis briefed; directs that DOE/CI, FBI, CIA and
Los Alamos National Laboratory Director be informed.
Initial meetings with DOE/CI personnel begin to discuss possible
compromise, and review DOE CI program.
DOE forms a Review group to conduct technical review of relevant
intelligence.
FBI National Security Division and CIA elements briefed.
LANL Director Sig Hecker briefed.
DOE Secretary O'Leary, Under Secretary Curtis, NN Director briefed.
Secretary briefs OVP staff.
Under Secretary Curtis discusses with DCI Deutch.
FBI updated.
First meeting of Review Group.
Second meeting of Review Group.
Sep.--Final meeting of Review Group.
Oct.--FBI briefed on Review.
______
Nov.--DOE Assistant Secretary for Defense Programs, and Director of
Nonproliferation briefed on Review conclusions. DOE Dep Sec Curtis
briefed on Review conclusions.
Nov.--DOE begins Administrative Inquiry into potential loss of
sensitive nuclear information. FBI assists.
Nov 20.--Director of Central Intelligence Deutch briefed by DOE
Deputy Secretary Curtis.
Dec.--CIA element briefed.
Dec 1995.--DOE begins to enhance CI program. Dep Sec Curtis briefed
on state of CI within national lab complex, request for enhancements.
Curtis approves increase in funding of $6 million for CI program.
Jan-Feb 1996.--Briefings for CIA elements as preparation for
briefing DCI.
Mar.--DCI Deutch briefed.
Mar.--Curtis initiates study of foreign visits and assignments to
labs. Study led by Dep Director of DOE Office of Intelligence.
April 11.--DOE Office of Intelligence begins second Administrative
Inquiry.
April 13.--Deputy National Security Adviser Berger first briefed on
potential compromise.
April.--Office of the Vice President (Fuerth) briefed.
May.--DOE brings a CIA counterintelligence expert to staff of DOE's
office of counterintelligence.
May.--FBI opens full field investigation.
June.--First DOE Administrative Inquiry completed. Bell/NSC and DOD
Undersecretary Kaminski briefed.
July 11.--SSCI (Senate Intelligence Oversight Committee) staff
briefed by FBI and DOE.
July 7.--Second DOE Administrative Inquiry completed.
July.--DOE Office of Nonproliferation briefed on Second Inquiry.
August 1.--HPSCI (House Intelligence Oversight Committee) staff
briefed jointly by FBI/DOE.
Oct.--DOE office of CI reorganized, CIA CI expert designated to run
office.
Oct 23.--Commander in Chief of Strategic Command (Gen. Habiger)
briefed.
Nov 21, 1996.--DOE Dep Sec Curtis meets with Lab Directors and
heads of DOE Field Offices to review foreign visitors and CI programs.
DOE HQ, Field Offices and Labs directed to begin implementing new
measures to strengthen foreign visits and CI program, undertake further
assessments.
March 12, 1997.--Federico Pena confirmed as Secretary of Energy.
Apr 4.--FBI completes SSCI-mandated assessment of DOE CI program
and makes recommendations.
Apr 7.--Secretary Pena meets with FBI Director Freeh. Freeh
indicates that FBI review of DOE counterintelligence program has been
completed.
Apr 28.--First meeting of CI Senior Advisory Group formed at DOE to
review China CI issues. Members included Dick Kerr, Adm Shapiro, Jack
Downing, Jim Williams, Rich Haver, Ken O'Malley.
June 11.--NSC/Gary Samore briefed by DOE Notra Trulock.
June 16.--DOE Dep Sec Moler sworn in.
June 16-17.--DOE CI Advisory Group (Kerr, Shapiro et al) meets at
Sandia to receive briefings on FBI investigation.
June 24.--Second and final meeting at DOE's CI Advisory Group.
Senior lab weapon scientists attend.
July 3.--NSC/Rand Beers briefed by DOE Trulock on CI issues
concerning PRC.
July 7.--Initial briefing to DOE Deputy Secretary Moler by Notra
Trulock.
July 11.--Second briefing to Dep Sec Moler by Notra Trulock.
July 14.--Initial briefing to Secretary Pena.
July 29.--Assistant to the President for National Security Affairs
Berger briefed by DOE/Trulock on CI issues concerning PRC.
Aug 7.--Secretary of Defense Cohen briefed by Dep Sec Moler and
Notra Trulock.
Aug 12.--FBI Director Freeh briefed by Dep Sec Moler and Notra
Trulock.
Aug.--Attorney General briefed.
Aug.--NSC requests CIA assessment of DOE China briefing.
Aug 26.--Second briefing to NSC/Samore by DOE/Trulock.
Aug.--National Counterintelligence Policy Board tasks interagency
working group to study DOE counterintelligence program.
Sept 1997.--Interagency working group completes DOE
counterintelligence review, proposes Presidential Directive for
addressing DOE counterintelligence improvements.
Sept 5.--NSC-directed CIA assessment of DOE China briefing
delivered.
Oct 15, 1997.--Secretary Pena, Dep Sec Moler meet with FBI Director
Freeh, DCI Tenet, and staffs meet at DOE to discuss actions to be taken
to improve DOE counterintelligence. Freeh outlines recommendations. All
agree to develop action plan which will serve as basis for PDD. DOE/NSC
staff to collaborate on drafting.
Oct. 17, 1997.--Secretary Pena, Dep Sec Moler, Director Freeh,
Defense Secretary Cohen, DCI Tenet, Attorney General Reno meet at DOD
to discuss development of PDD.
Feb. 11, 1998.--PDD-61 issued.
Feb 19.--HPSCI and SSCI briefed on PDD-61 by DOE (Gottemoeller,
Trulock and Curran).
Feb-March.--Office of counterintelligence staff develops budget
request, submits supplemental appropriations request to Congress.
March 3.--DOE Dep Sec Moler convenes meeting with staff to discuss
PDD implementation.
March 16.--Moler and Curran (newly designated CI director) meet.
March 17, 1998.--Pena, Moler and Curran meet with DOE Weapons Lab
Directors to discuss PDD implementation.
March 30.--Freeh, Tenet, DOE Dep Sec Moler, Trulock and Curran meet
with Lab Directors at FBI to discuss importance of complying with PDD
requirements.
April 1, 1998.--FBI CI Expert Curran formally instated as head of
DOE CI Office.
April 6-May 15.--DOE CI Office begins 90-day Study with team visits
to eight DOE Operations Offices and nine National Laboratories.
June 30.--Pena resigns, Moler Acting.
July 1, 1998.--90-Day Study completed and delivered to Secretary of
Energy.
July-August.--DOE Dep Sec Moler leads review of 90-Day Study
recommendations and develops plan to implement. Key participants
include relevant HQ offices and DOE labs. Numerous meetings occur.
Detailed Secretarial Action Plan drafted.
Aug 18.--Secretary Richardson sworn in.
Sep 10.--Sec. Richardson and Dep Sec Moler meet with staff to
discuss Counterintelligence.
Sep 18.--DOE Sec. Richardson meeting with FBI Robt Bryant and DCI
Tenet re DOE Counterintelligence Action Plan.
Oct 1.--Secretary Richardson meeting with Dep Sec Moler on
intelligence.
Oct 6.--Secretary Richardson and Director Freeh meet.
Oct 6.--Sec Richardson briefed by Dep Sec Moler, Notra Trulock and
staff. DOE CI Action Plan discussed.
Oct 6.--House Committee on National Security (Subcommittee on
Military Procurement) hearing on the Department of Energy's Foreign
Visitor Program.
--Open session on foreign visitors with Lab Directors and
GAO;
--Closed session with Dep Sec Moler, DOE Office of
Intelligence Acting Director Trulock, and DOE Director of
Counterintelligence Curran.
Oct 19.--DOE Dep Sec Moler resigns.
Nov 2.--Sec Energy appoints advisor for Counterintelligence.
Nov 12.--DOE gives full brief to Cox Committee.
Nov 13, 1998.--Sec Energy Richardson submits Counterintelligence
Action Plan to the NSC, National Security Advisor.
Nov 27.--National Counterintelligence Center Threat Assessment for
DOE Labs Published.
Dec-Jan.--Counterintelligence Implementation Plan drafted with
input from relevant HQ offices, laboratories and field elements.
Dec 7.--DOE briefs Cox Committee Members.
Dec 9.--Secretary Richardson meets with laboratory CI Directors,
and Directors of Intelligence and Counterintelligence Offices re
implementation of Counterintelligence Plan.
Dec 15.--Secretary Richardson, Under Secretary Moniz meet with five
weapons Lab Directors and Directors of the Offices of Intelligence and
Counterintelligence to discuss importance of CI initiatives.
Dec 16.--DOE Curran, Sanchez and Trulock testify before Cox
Committee.
Dec 21.--Sec Energy meeting on counterintelligence with staff.
Richardson phone call to Director Freeh.
Dec 29.--DOE Counterintelligence Director Curran meets with NSC
staff regarding Cox Report.
Jan 4, 1999.--Cox Committee Releases Report.
Jan 22.--FY 2000 Counterintelligence budget request submitted--
doubles budget over FY 99 levels.
Feb 3.--Counterintelligence Implementation Plan completed and
delivered to Secretary of Energy Richardson.
Feb 10.--Secretary Richardson briefs House Armed Services
Committee.
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MEMORANDUM
To: Senator Specter
From: Carlton Hoskins
Date: September 26, 2000
Re: Summary and Chronology of the conditions of WHL's confinement
--Shackles were used because he was a segregated inmate.
--On December 10th, the jail's warden issued a memorandum outlining
the procedures for the confinement of Wen Ho Lee as a segregated
prisoner. (Tab #1)
--The jail's operator Cornell Corrections, Inc. wrote the US
Marshal on January 4th, outlining their policy for segregated inmates.
(Tab #2)
--The US Marshal on January 6, 2000, wrote back stating the
Marshal's agree with this treatment and that ``with some additional
restrictions, the standard segregation policy currently in place at
your facility would adequately confine Mr. Wen Ho Lee.'' (Tab #3)
--The additional restrictions all dealt with his ability to
communicate. These additional terms evolved into DOJ's Special
Administrative Measures (SAM) for Lee's confinement. The SAM (Tab #4)
signed by AG Reno required: (1) use of English or interpreters must be
present; (2) no attorney use of interpreters unless necessity shown and
attorney is present; (3) phone calls limited to attorneys and any
potential defense communication; (4) attorneys may provide docs to
inmate; (5) family may call/be called, calls must be in English; (6) no
phone calls overheard by third party; (7) family calls monitored and
recorded by FBI; (8) visitors limited to immediate family; (9) all
legal mail must be marked to/from attorney and marked privileged, all
non-legal mail must be copied and forwarded to the FBI; (10) all mail
is prescreened and analyzed before forwarding/dispersal; (11) if mail
is determined to contain overt or covert discussion, it is to be
seized. (Tab #4)
--Restraint policy discussed (Tab #5)
chronology
December 10 and 14, 1999, Senior Warden Barreras of the Santa Fe
County Correctional Facility issues memorandums outlining the
procedures for the supervision of Wen Ho Lee.
December 21 Holscher writes USA Kelly questioning limited visits,
English only, and limited attorney calls.
Dec 27, 1999 Sec. Richardson writes certifying to the AG that
Special Administrative Measures (SAM) on Wen Ho Lee's confinement are
necessary to protect national security.
Dec 30, 1999 Judge Parker issues his Memorandum Opinion and Order
denying Lee's pretrial release.
Jan 4, 2000 Cornell Corrections, Inc. sends memo that outlines
policy for segregated inmates.
Jan 5, USA Gorence writes memo to AG requesting she issue the SAM.
Jan 6. 2000 US Marshal Sanchez writes Warden Barreras asking the
jail to especially adapt its inmate segregation policy for WHL to
include that Lee can only be transported by US Marshals.
Jan 6, 2000 Cline writes Gorence for additional time outside the
cell, daily showers, a TV and a radio.
Jan 13, 2000 DOJ review of the SAM request is sent to the Deputy
Attorney General.
Jan 13, 2000 AG issues memo to Director, US Marshal Service (USMS)
directing the SAM be implemented. The SAM must be certified every six
months.
Jan 14, 2000 USMS sends Gorence the Jail's response to Cline's
requests of Jan. 6th.
Jan 18, 2000 Gorence forwards jail's memo to Cline.
Apr 21, 2000 Gorence writes USMS requesting Saturday family visits
for WHL.
May 2, 2000 SAC Kitchen writes Bay about national security concerns
of relaxing the SAM.
May 4, 2000 Sec. Richardson recertifies request for SAM.
May 12, 2000 AG memo to USMS extends SAM.
Jul 17, 2000 Bay to Warden Barreras making 3 modifications to
conditions of Lee's confinement: no restraints while exercising;
exercise daily; and extra fruit.
Jul 18, 2000 Barreras memo to Stamboulidis confirming he will
comply with 2 of 3 requests.
Jul 26, 2000 Cline to Stamboulidis confinement modifications
requested not yet made.
Jul 30, 2000 Bay forwards to Barreras that confinement
modifications not yet made, asks about conditions.
Aug. 1, 2000 Barreras to Stamboulidis stating Lee was out of
restraints during exercise on Jul 18 and on Aug 5 Lee will get exercise
time on weekends.
Sept 7, 2000 Bay to AG requests SAM be extended again.
______
Department of Justice,
Office of Legislative Affairs,
Washington, DC, June 22, 2001.
Hon. Patrick J. Leahy,
Chaiman, Committee on the Judiciary, U.S. Senate, Washington, DC.
Dear Mr. Chairman: This responds to recent correspondence from you
and Senator Arlen Specter requesting a written chronology of the
Department of Justice's actions with respect to Wen Ho Lee
investigation during the period between his termination from employment
at Los Alamos National Laboratory, on March 8, 1999, and the return of
the indictment against him on December 10, 1999. Senator Specter also
requested a copy of the report on the case by the Attorney General's
Review Team (the Bellows Report), and you have requested the status of
the declassification of that Report.
The requested chronology is attached. As for the Bellows Report,
the Central Intelligence Agency is currently reviewing a redacted
version for any remaining classification issues. The Agency has advised
that their review will be complete by June 29, 2001, after which we
will be able to provide you with a copy of an unclassified version of
the report.
Sincerely,
Daniel J. Bryant,
Assistant Attorney General.
Wen Ho Lee Chronology
March 8, 1999.--Wen Ho Lee terminated by Los Alamos National
Laboratory (LANL)
March 9, 1999.--Meeting between FBI-Albuquerque Division (AQ) and
U.S. Attorney (USA) John J. Kelly, District of New Mexico.
March 10, 1999.--Letter from Mark Holscher, counsel for Wen Ho and
Sylvia Lee, to First Assistant U.S. Attorney (FAUSA) Robert J. Gorence,
D.N.M., and FBI-AQ Special Agent John Hudenko, offering to surrender
Lee's passport and asking whether Lee is target or subject of
investigation.
March 12, 1999.--Letter from USA Kelly to Holscher confirming
Holscher's offer to advise government of travel by Lees and Holscher's
representation that Lees will not leave the country during the
investigation.
March 15, 1999.--Telephone conversation between USA Kelly and
Holscher.
March 19, 1999.--Letter from Holscher to USA Kelly asking that
investigation of Lee end, asking for security clearances in order to
counsel Lee, and requesting a meeting.
March 23, 1999.--LANL scientist assisting FBI-AQ in conducting
consensual search of Lee's former X-Division LANL office, advises FBI-
AQ of discovery in office of printout of computer directory ``kfl.''
Based on names of files in directory kfl, it appears that files are
classified. Also believed by LANL scientist that directory kfl was
maintained on open, unsecured part of LANL computer know as Common File
System (CFS).
March 25, 1999.--Telephone conversation between FAUSA Gorence and
Holscher.
March 26, 1999.--LANL scientist advises FBI-AQ that Lee had typed
up and stored in a CFS directory, letters seeking employment overseas.
LANL scientist advises FBI-AQ that Lee had created ``kfl'' directory on
open part of CFS, that file names on directory suggest files contained
classified information, and that ``kfl'' files had been deleted from
CFS on February 11, 1999 by individual using Lee's computer access
number.
March 29, 1999.--Letter from Holscher to FAUSA Gorence confirming
government's representation that Lee was a subject, not a target, of
the investigation
March 30, 1999.--Draft rule 41 search warrant affidavit re Lee's
White Rock, N.M. residence presented by FBI to U.S. Attorney's Office,
D.N.M.
April 1-8, 1999.--FBI agents, and attorneys from the Criminal
division and the USAO work on affidavit in support of application for
rule 41 warrant to search Lee's residence in White Rock, N.M.
April 5, 1999.--LANL scientist advises FBI-AQ that Lee had
transferred classified Department of Energy information from the closed
CFS to the open CFS.
April 7, 1999.--Meeting between FBI and Office of Intelligence
Policy and Review.
April 9, 1999.--As required by statute, Attorney General Janet Reno
approves use of information derived from the Foreign Intelligence
Surveillance Act of 1978 in rule 41 search warrant application. Later
same day, FBI-AQ special agent, accompanied by FAUSA Gorence, applies
for and obtains warrant from Magistrate Judge William W. Deaton,
D.N.M., to search Lee's White Rock residence.
April 10, 1999.--Search warrant executed by FBI-AQ. Lee provides
written consent to search motor vehicle.
April 16, 1999.--Letter from FAUSA Gorence to Holscher providing
inventory of items seized during search and requesting meeting to
discuss Lee's 1986 and 1988 travel to the People's Republic of China.
April 18, 1999.--LANL provides two reports of LANL computer
officials. One concerns the deletion of files, during January and
February 1999, from directories maintained by Lee on open CFS. The
other concerns the earlier transfer of eleven of these files from
closed to open CFS.
April 23, 1999.--Conversation between Holscher and FAUSA Gorence.
April 28, 1999.--The New York Times reports that Lee transferred
classified nuclear weapons files onto a non-secure computer while at
LANL.
May 5, 1999.--LANL scientist advises FBI-AQ that notebook recovered
during search of Lee's residence contains handwritten instructions on
how to transfer classified files from computer at LANL to a Sun Sparc
computer workstation and from there onto portable DC6150 computer tape
cartridges.
May 9, 1999.--LANL computer official provides report to FBI-AQ
describing how Lee moved files from closed to open CFS.
May 11, 1999.--Letterhead Memorandum on Lee case prepared by FBI-
AQ.
May 13, 1999.--Letter from Holscher to FAUSA Gorence asserting that
search of Lee's residence was illegal and offering to continue to
cooperate.
May 16, 1999.--Written status report on Lee case from USA Kelly to
Deputy Attorney General Eric H. Holder and AG Reno.
May 17, 1999.--LANL computer official provides FBI-AQ with report
on potential movement of files on Lee's CFS directories from LANL
computers to outside computers.
May 27, 1999.--Meeting in Washington, D.C. among FBI, Criminal
Division, and USAO.
May 29, 1999.--FBI-AQ presents written prosecutive report to USAO.
June 9, 1999.--Letter from Holscher to USA Kelly and FAUSA Gorence
complaining that government has not advised him what it wants to
discuss with Lee and has not sought to schedule a meeting.
June 15, 1999.--Letter from USA Kelly to Holscher stating that
government is considering serious charges, but not espionage under 18
U.S.C. Sec. 794, and suggests meeting on June 21 at USAO in
Albuquerque.
June 21, 1999.--Meeting in Albuquerque among USAO, FBI, Criminal
Division, counsel for Lee, and Lee. During meeting counsel for Lee
assert that he only downloaded unclassified data onto an unsecure
computer and then onto tapes. Subsequently, counsel advised that if Lee
had done so with respect to classified data, any such tapes had been
destroyed.
June 22, 1999.--Written status report on Lee case from USA Kelly to
DAG Holder and AG Reno.
July 1-2, 1999.--Written presentation by counsel for Lee provided
to USAO on July 1, 1999; faxed to Criminal Division by USAO on July 2,
1999.
July 6, 1999.--Written supplement to above presentation provided by
counsel for Lee to USAO. Letter from Holscher to USA Kelly and FAUSA
Gorence.
July 15, 1999.--LANL scientist provides report on Lee's creation of
``Tape N,'' in 1997.
July 1999.--LANL advises that one of six DC6150 tapes recovered
from Lee's T-Division LANL office contains a classified file, and that
two others did at one time, but that those files have been deleted.
LANL further advises that one tape was cleansed of classified data in
February 1999, on the unsecured computer workstation belonging to a T-
Division colleague of Lee.
July 23, 1999.--Meeting in Washington, D.C. between USAO and
Criminal Division.
July 26, 1999.--Holscher letter to USA Kelly and FAUSA Gorence
arguing that Lee has not violated the Atomic Energy Act of 1954.
July 27, 1999.--Meeting in Washington, D.C. between counsel for Lee
and Criminal Division.
July 28, 1999.--LANL computer official provides report describing
the creation of classified ``tar'' (tape archive) files by Lee.
August 2, 1999.--Letter from Holscher to USA Kelly and FAUSA
Gorence offering to make additional factual submission.
August 4, 1999.--Letter from USA Kelly to Holscher saying
government will review anything Holscher submits, but wants a complete
explanation from Lee himself. Letter from USA Kelly to Eugene Habiger,
Director, Office of Security and Emergency Operations, Department of
Energy, seeking to include in a proposed indictment of Lee information
about Lee's downloading activity.
August 9, 1999.--Telephone conversation between Daniel H. Bookin,
counsel for Lee, and Richard A. Rossman, Chief of Staff, Criminal
Division.
August 10, 1999.--Letter from Holscher to USA Kelly stating that
Lee will not submit to additional interview, and offering further
arguments as to why Lee has not violated 18 U.S.C. Sec. 793.
August 16, 1999.--Letter from Rossman to Bookin advising that
government has not made decision whether to charge Lee, and asking for
additional information, which was discussed during meeting in July, no
later than August 30, 1999.
August 30, 1999.--Additional supplemental written presentation
provided by counsel for Lee to USAO.
September 3, 1999.--Letter to Holscher from USA Kelly asking for
information about location and custody of tapes from time of their
creation until the present.
September 8, 1999.--Meeting in Washington, D.C., among Criminal
Division, USAO, LANL, and Department of Energy (DOE) to discuss
handling of classified information in prosecution of Lee. All DOE and
LANL representatives concur as to significance of data at issue.
September 13, 1999.--Letter from Holscher to USA Kelly and FAUSA
Gorence stating that Lee had work-related reason to make tapes.
October 4, 1999.--DOE prepares draft classification guide governing
issues relating to Lee's illicit computer activity and the classified
files involved.
October 27, 1999.--Memo from Assistant Attorney General James K.
Robinson, Criminal Division, and USA Kelly recommending Lee be
prosecuted under Atomic Energy Act of 1954.
November 8, 1999.--Draft agenda of upcoming National Security
Council meeting on case distributed.
November 11, 1999.--Case discussed at NSC meeting in Washington,
D.C.; DOJ, DOE and LANL represented at meeting.
November 14-15, 1999.--On November 14, 1999, LANL scientist writes
``Draft of Input to Damage Assessment'' re Lee compromises; faxed to
USA Kelly on November 15, 1999.
November 24, 1999.--At request of NSC, Central Intelligence Agency
prepares damage assessment regarding data on missing tapes created by
Lee.
December 4, 1999.--Briefing of case at White House.
December 8, 1999.--Telephone conversation between USA Kelly and
Holscher. Kelly advises Holscher that indictment is imminent, and seeks
from Holscher information about whereabouts of missing tapes. As
required by statute, AG Reno sends letters to Secretary of Energy Bill
Richardson and USA Kelly approving charges against Lee under the Atomic
Energy Act of 1954.
Late 1999, before December 10.--USA Kelly advises Holscher in
telephone conversation that case might be resolved without indictment;
advises Holscher to look at latter sections of 18 U.S.C. Sec. 793.
December 10, 1999.--Letter faxed at 8:24 a.m. PT from Holscher to
USA Kelly and FAUSA Gorence offering to make Lee available for a
polygraph by a mutually agreeable polygrapher to verify that Lee did
not mishandle the tapes or provide them to a third party. Lee later
indicted in Albuquerque and arrested in White Rock by FBI-AQ.
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Department of Justice,
Federal Bureau of Investigation,
Washington, DC, December 10, 1999.
Hon. Arlen Specter,
Chairman, Subcommittee on Administrative Oversight and the Courts,
Committee on the Judiciary, U.S. Senate, Washington, DC.
Dear Mr. Chairman: I am in receipt of your December 7, 1999 letter
regarding scheduling closed hearings next week on the FBI's Wen Ho Lee
investigation. Your letter requests the testimony of nine (9) FBI
witnesses, including two of the case Agents, my General Counsel, and
case supervisors and managers, including the Special Agent in Charge in
Albuquerque and the Assistant Director in Charge of our National
Security Division. For the reasons set forth below, I respectfully
request that you delay hearings on any aspect of this investigation
until the conclusion of the current criminal proceedings resulting from
the indictment handed down today.
As you know, in an effort to assist your Subcommittee the FBI has
made available to you or your staff raw investigative files concerning
the Wen Ho Lee investigation, and made available for interview a
substantial number of employees. Today, however, Wen Ho Lee was
indicted in the District of New Mexico, an indictment that alleges the
massive misappropriation of the most sensitive nuclear weapons
information possessed by the U.S. Government. Some of the violations
carry potential life sentences.
In my view, the potential that your hearings could inadvertently
interfere with the prosecution is substantial. Subcommittee hearings at
this time risk impacting upon the Government's ability to successfully
prosecute Mr. Lee by creating issues that may not presently exist.
Moreover, it is critical for our national security that we have every
opportunity to learn as much as we can from Wen Ho Lee in a carefully
controllable setting. Given the gravity of the allegations and charges,
and the potential opportunities that could be lost by hearings, I
respectfully ask that you not go forward at this time. I hope you will
agree that to do otherwise poses a substantial risk not only to
prosecution but to the Government's ultimate ability to discover the
full extent of the damage done.
Further, I do not believe any aspect of this case can be isolated
for hearing purposes. Many of the same witnesses and documents could at
any point become relevant to issues raised by defense counsel, and your
discussions with Mr. Lee's attorney may inadvertently create
opportunities for the defense that otherwise might not occur.
Please do not interpret this request as concern about having
hearings. My concern is only about timing and the potential for
increased risks to prosecution. We intend to continue fully cooperating
with the Subcommittee and look forward, once the criminal proceedings
have concluded to describing for the American people how the FBI was
able to achieve this result.
Sincerely yours,
Louis J. Freeh,
Director.
______
Department of Justice,
Federal Bureau of Investigation,
Washington, DC, December 10, 1999.
Today, Wen Ho Lee, a nuclear weapons engineer, was indicted in a 59
count indictment alleging that he downloaded and removed from the Los
Alamos National Laboratory the following classified nuclear weapons
design and testing files. These extensive files relate specifically to
the design, construction and testing of nuclear weapons.
Data files that contain information relating to the physical
and radioactive properties of materials used to construct
nuclear weapons;
Input deck/input file information that includes descriptions
of the exact dimensions and geometry of nuclear weapons that
are used in connection with the design and simulated testing of
nuclear weapons, and the computer instructions to set up a
simulated nuclear weapons detonation;
Source codes used for determining by simulation the validity
of nuclear weapons designs and for comparing bomb test results
with predicted results;
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
Computer programs necessary to run the design and testing
files.
The charges alleged in the indictment include violations of the
Atomic Energy Act that carry a maximum penalty of life imprisonment and
federal espionage statutes.
Over 60 FBI Agents and dozens of computer specialists and other
specialists such as scientists, engineers, and technicians, both from
the FBI and the DOE, have been dedicated to this investigation.
Investigation leading to this indictment has been extensive. The
FBI, with the assistance of the Department of Energy and Los Alamos
National Laboratory, has conducted over 1,000 interviews and searched
over one million computer files. Comprehensive analysis by the FBI's
Computer Analysis Response Team and DOE was critical to uncovering many
of the facts that lead to this indictment. Over four trillion bits of
data were examined. Several searches also have been conducted.
The Department of Energy and Los Alamos National Laboratory deserve
great credit for their superb assistance and extraordinary expertise.
A copy of the press release by the United States Attorney and a
copy of the indictment are attached.
______
Department of Justice,
Criminal Division,
Washington, DC, December 17, 1999.
Hon. Arlen Specter,
Subcommittee on Administrative Oversight and the Courts, Committee on
the Judiciary, U.S. Senate, Washington, DC.
Dear Senator Specter: This is to thank you for honoring the request
of FBI Director Louis J. Freeh that the Subcommittee postpone the
hearings that it had scheduled for December 14 and 16 on matters
related to the investigation of Wen Ho Lee. As Director Freeh noted,
with the indictment of Mr. Lee on December 10, the criminal case
against Mr. Lee has entered a new and sensitive stage. United States
Attorney John J. Kelly and I, as well as the Attorney General, share
Director Freeh's concern that holding hearings at this time could have
inadvertently interfered and seriously harmed the criminal prosecution
of Mr. Lee for misappropriation of extraordinarily sensitive and
important nuclear weapons information. Indeed, it is reasonable to
expect that Mr. Lee's attorneys would have welcomed such hearings as a
way of generating information that they could have later used to attack
the Government's prosecution.
Additionally, as Director Freeh noted, it is essential to the
nation's security that we have the greatest opportunity possible to
learn as much as we can from Mr. Lee in a carefully controlled setting.
We must not miss any possible way of reducing the damage to the
national security that Mr. Lee's actions may have caused, regardless of
whether that damage is directly related to the pending criminal case
against Mr. Lee.
We also agree with Director Freeh that it would be impossible to
completely isolate any aspect of the Wen Ho Lee investigation for
hearing purposes. Many of the witnesses have information that is
pertinent to both criminal and national security issues. Thus, even if
the Committee had attempted to restrict testimony at the hearing to
matters that it believed were unrelated to the criminal case, it could
still have elicited testimony that Mr. Lee's counsel could exploit in
the criminal prosecution.
We want to make clear that the Department of Justice has been, and
will continue to be, cooperative with the Subcommittee in its
investigation. We have provided the Subcommittee with open access to
the FBI's files on Mr. Lee and numerous Department officials have
testified before the Committee. For the reasons discussed above,
however, we strongly believe that holding hearings during the pendency
of the criminal prosecution could have serious negative consequences
for both the prosecution and the national security. We greatly
appreciate your understanding of that concern. Once the criminal
prosecution has concluded, we will be glad to provide testimony on the
Wen Ho Lee matter.
Please do not hesitate to contact me if you would like to discuss
this matter further.
Sincerely yours,
James K. Robinson,
Assistant Attorney General.
______
Department of Justice,
Federal Bureau of Investigation,
Washington, DC, January 4, 2000.
Mr. Edward J. Curran,
Director, Office of Counterintelligence, Department of Energy,
Washington, DC.
Dear Ed: I have been provided a copy of the undated FBI blind
memorandum captioned ``KINDRED SPIRIT; LEE, WEN HO; LEE, SYLVIA; FCI-
PRC.'' As we discussed telephonically, this document is in the
possession of DOJ and I understand has been provided to one or more
Congressional Committees. Also as we discussed, I told you I would
cause an in-depth review to be made in the FBI and if appropriate,
correct any misperceptions this document creates when viewed out of
content. Having stated that, it is the purpose of this letter to (1)
put that document into its proper context and (2) correct at least what
I understand from you are two apparent misinterpretations of this
document.
With respect to the document, I have been advised that it was
created by FBI Albuquerque as a result of a telephonic discussion
between the Assistant Special Agent in Charge and a Deputy Assistant
Director of the National Security Division. It was intended only to be
a ``rough'' update of the status of the investigation prepared by FBI
Albuquerque. It was not intended to be further disseminated or to
reflect all of the facts about any aspect of the investigation. As a
``blind memorandum'' it also is not intended to capture official
witness statements or other evidence. In common parlance, it is the
equivalent of a ``note to the file.'' From what you described, it
underscores the difficulty associated with utilizing any one document
to characterize a long term investigation or for that matter a critical
aspect of the investigation.
With respect to the details of this document, I would like to
comment on two aspects in particular:
(1.) In the first paragraph there are reported details of the
polygraph of Wen Ho Lee on December 23, 1998. These facts are accurate.
However, as we discussed, your impression was that this paragraph
suggested that there was not the high level of coordination between the
FBI and DOE regarding this polygraph that you understood existed. To
the contrary, from everything I know, this polygraph was coordinated
appropriately. FBI Albuquerque agreed in advance with its role in a
stand-by capacity as this was at the time a DOE administrative matter.
My recent review did not identify any coordination issue or conflict
with respect to the conduct of the polygraph.
(2.) The second paragraph reports on the status of an access to the
polygraph charts (for subsequent FBIHQ Polygraph Unit quality control
review). It also attributes a DOE response to you by name.
With respect to the attribution to you by name, I can find no FBI
employee that can confirm such a statement. It may be that someone in
DOE used your name, but even that is not certain. Any indication that
you personally made a statement preventing the FBI access to the
polygraph charts is inaccurate.
With respect to the remaining facts in this paragraph as to access
to the charts they are accurate. However, they can in hindsight easily
be taken out of context. When we were informed on December 23, 1998,
Wen Ho Lee passed the polygraph, immediate access to the charts was
requested but not insisted by the FBI. We were informed of the DOE
internal handling procedures. At the time, in part because we were
under the impression he had passed the polygraph, we waited for the
charts to be provided as we understood they would be. FBI Albuquerque
did make inquiries as to the availability of these charts and were
concerned with the time factor involved. However, I can find no formal
of the charts availability, in Albuquerque, they were immediately
obtained and transmitted to FBIHQ, and the quality control review
conducted. Upon learning that the FBIHQ Polygraph Unit believed the
results to be inconclusive, this was immediately relayed to you
telephonically.
I hope these comments place in proper context the blind memorandum
and eliminates any misunderstanding on the two aspects noted above.
Sincerely yours,
Neil J. Gallagher,
Assistant Director,
National Security Division.
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Department of Justice,
Federal Bureau of Investigation,
Washington, DC, September 21, 2000.
Hon. Arlen Specter,
Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Senator Specter: Enclosed for your use is an excerpt from the
``Statement of Facts'' portion of the Government's answer brief filed
in February 2000, with the Tenth Circuit Court of Appeals. This
pleading was filed in response to the brief filed by counsel for Wen Ho
Lee appealing the District Court's denial of bail.
As you prepare for hearings on the Government's handling of the Wen
Ho Lee case, I thought it would be helpful for you to have this factual
explanation of the classification levels of the material Lee down-
partitioned and downloaded. That remains one of the publicly debated
central issues. While much testimony and many documents on this issue
undoubtedly will be forthcoming, this excerpt provides a concise,
unclassified description of the nature of the material. Also enclosed
is transcript from a recent edition of Nightline that reflects public
statements by U.S. Attorney Norman Bay on this same and other issues.
As we identify other unclassified documents that appear useful for
hearing preparation, we will bring them to your attention. Please feel
free to contact me if you have any questions.
Sincerely yours,
John E. Collingwood,
Assistant Director,
Office of Public and Congressional Affairs.
Enclosures.
Statement of the Facts
1. LEE'S BACKGROUND
Lee was born in Taiwan in 1939. (App. at 220.) He has six siblings,
three who live in Taiwan and three who live in the United States. (App.
at 221-22.) He is married and has two adult children, both of whom were
born in the United States and live here. (App. at 302-03.)
Lee came to the United States in 164 on a student visa and enrolled
at Texas A&M in College Station, Texas. (App. at 221.) Lee received his
master's degree in 1966 and his doctorate in 1969 in mechanical
engineering. (App. at 221.)
In 1970, Lee became a naturalized United State's citizen. (App. at
221.) His wife, Sylvia, became a naturalized citizen in 1997. (App. at
221.) Lee and his wife both speak Mandarin Chinese and, of course,
English. (App. at 222.)
LANL hired Lee in 1980, and Lee worked for the laboratory until his
termination in March 1999.\3\ (App. at 222,225.) Lee was assigned to
LANL's X Division, the division responsible for the research and design
of approximately 85 percent of the United States nuclear stockpile, as
a hydrodynamicist/engineer. (App. at 152,222.) Lee's primary job
assignment throughout his eighteen years at LANL was to write and
implement physics models in the area of hydrodynamics as applied to
nuclear weapons research. (App. at 222-25.)
---------------------------------------------------------------------------
\3\ In December 1998, Lee was transferred to an unsecured area in
LANL's T Division. Although Lee lost his security clearance, and thus
his ability to enter X Division, on February 23, 1999, Lee's X Division
office was sealed until it was searched on March 5, 1999. (App. at 223-
25.)
---------------------------------------------------------------------------
In 1993, Lee was notified that he was in danger of losing his job
because of a potential reduction in force (RIF). (App. at 292.) In
response, Lee applied for overseas employment in Singapore, Taiwan,
Hong Kong, Malaysia, Germany and Switzerland. (App. at 292-94.)
Although Lee did not lose his job, he maintained professional contacts
overseas. In March and April, 1998, for example, with LANL approval,
Lee was a lecturer and consultant at a science institute in Taiwan for
six weeks.\4\ (App. at 294.)
---------------------------------------------------------------------------
\4\ This was before LANL and the FBI knew that Lee had down-
partitioned and downloaded America's nuclear secrets on to portable
computer tapes. (App. at 220.)
---------------------------------------------------------------------------
2. THE PRELIMINARY INVESTIGATION
In 1996, the FBI began to investigate possible espionage by the
People's Republic of China (PRC) with regard to a specific nuclear
weapon in the United States arsenal--the W88 (App. at 219-20.) Although
Lee was a subject of that investigation, the indictment does not charge
him with PRC-related espionage. (App. at 6-50.) Instead, a separate and
distinct investigation of Lee began in late March, 1999, after the FBI
and LANL unearthed information that Lee had down-partitioned from a
secure to an unsecured computer, 806 megabytes of Secret and
Confidential Restricted Data relating to thermonuclear weapon research
and design.\5\ (App. at 220,230.) When the nature and extent of the
compromise was discovered, LANL immediately and completely shut down
its entire computing system for three weeks to scrub Lee's classified
information from the unsecured computing environment. (App. at 359-60.)
---------------------------------------------------------------------------
\5\ 806 megabytes of information roughly translates into 800 reams
of paper, i.e., 400,000 pages at 2,000 characters per page. (App. at
230-32.)
---------------------------------------------------------------------------
As the subsequent investigation revealed that Lee surreptitiously
created ten portable cassette tapes\6\--seven of which remain
unaccounted for--which contained most of the 806 megabytes of
classified information, the FBI and national intelligence agencies
began an unsuccessful world-wide search for the missing tapes. (App. at
708-09.) Lee was indicted after the search for the tapes was
unsuccessful. (App. at 707-11.) In terms of the overall national
interest, finding the tapes was more important than a successful
criminal prosecution because Lee's indictment publicly confirmed the
existence of the missing tapes and the value of the information on
those tapes, and thus ``whet[ed] [foreign intelligence services']
appetite to unlawfully gain access to those materials.'' (App. at 708-
11.)
---------------------------------------------------------------------------
\6\ In addition, Lee surreptitiously created five tapes which
contained unclassified information. FBI agents found six tapes in Lee's
T Division office in March 1999. Of the nine that are missing, seven
contain classified information and are charged in the indictment. The
other two missing tapes contain data files required to run nuclear
weapons source codes. (App. at 250-58, 1040-68, 1073-119.)
---------------------------------------------------------------------------
3. THE NATURE AND THE SENSITIVITY OF THE SECRET AND CONFIDENTIAL
restricted data down-partitioned and down loaded by lee
Four scientists testified about the nature and sensitivity of the
Secret and Confidential Restricted Data Lee stole: Dr. Stephen Younger,
Dr. Richard Krajcik, Mr. John Romero, and Dr. Paul Robinson. Dr.
Younger, as the Associate Laboratory Director for Nuclear Weapons at
LANL, is entrusted with a $900,000,000 program that employs 3,500
people, and is responsible for the research, design, development, and
safe stewardship of approximately 85% of the United States nuclear
arsenal. (App. at 151-52.) Dr. Richard Krajcik is a physicist who has
spent.twenty-six years at LANL, including seven years as the group
leader for primary design and two years as a project leader for
advanced weapon design, and has been the Deputy X Division Director
since 1997. (App. at 496.) Physicist John Romero is the team leader for
Code A, which is LANL's most significant secondary design nuclear
weapons source code. (App. at 511-12, 649.) Dr. Paul Robinson, the
current President of Sandia National Laboratory, worked at LANL for
eighteen years, first as a weapons designer and then as the Principal
Associate Director for National Security. (App. at 683-84.) In
addition, Dr. Robinson was the Ambassador for the United States to the
Nuclear Test Ban Talks in Geneva, Switzerland, which culminated in two
treaties ratified by the United States Senate. (App. at 684.) As
President of Sandia National Laboratory, Dr. Robinson is the Science
Advisor to the Strategic Advisory Committee to the Commander-in-Chief
of Stratcom. (App. at 684.)
In providing an unclassified primer on American thermonuclear
weapon design and construction, both Dr. Younger and Dr. Krajcik
testified that the major tools used to design and develop American
thermonuclear weapons are nuclear weapons design source codes. (App. at
153-54,498-99.) American nuclear weapons design source codes are
extraordinarily complex and hundreds of thousands of lines long. (App.
at 154-60,498-500.) The source codes model and simulate every aspect of
the complex physics process involved in creating a thermonuclear
explosion. (App. at 154-60,498-500.) The source codes are written to
design specific portions of a nuclear weapon--either the primary\7\ or
the secondary.\8\ (App. at 160,503.)
---------------------------------------------------------------------------
\7\ A ``Primary'' is the first stage of a nuclear weapon. The
primary uses chemical high explosives and nuclear materials to start a
nuclear reaction that produces sufficient energy to drive the secondary
stage. (App. at 13.)
\8\ ``Secondary'' is the second stage of a nuclear weapon. The
secondary uses the energy produced by the primary to trigger a
thermonuclear burn (nuclear fusion reaction). It is this thermonuclear
burn that produces the ultimate destructive force of the nuclear
weapon. (App. at 13.)
---------------------------------------------------------------------------
Although nuclear weapons source codes contain all of the physics
involved in a thermonuclear weapon, the source codes themselves require
``data files''--both classified and unclassified--to run actual
simulations. (App. at 161-64,503-05.) Data files contain all of the
physical and nuclear properties of materials required for a nuclear
explosion. (App. at 161-64,503-05.) Like nuclear weapons source codes,
the data files are the product of more than fifty years of both
theoretical and experimental calculations, and they represent knowledge
acquired from more than a thousand American nuclear tests. (App. at
161-64,503-05.) Data files become classified as SRD when the properties
of the materials are most directly relevant to nuclear weapons, i.e.,
in environments involving very high pressures and temperatures. (App.
at 505.) The American national investment in producing the information
contained on LANL SRD data files is of a magnitude of ``hundreds of
billions of dollars.'' (App. at 164.) The information contained in
these files cannot be duplicated given the current ban on nuclear
testing. (App. at 165.)
``Input decks'' are mathematical descriptions of the actual
geometry and materials within a nuclear device itself. (App. at 165-
66,508-09.) In essence, as input deck is an ``electronic blueprint'' of
either a primary or secondary within a nuclear weapon. (App. at 509.)
According to Drs. Younger and Krajcik, Lee down-partitioned and
downloaded all of LANL's significant nuclear weapon primary and
secondary design codes in their entirety. (App. at 174-76,521-23.)
They [Codes A, B, D/G, and I]\9\ represent the complete
nuclear weapons design capability of Los Alamos at that time.
There may have been small codes that weren't included in there,
but they were the big ones. And they would enable the possessor
to install the complete nuclear weapons design capability at a
remote location without a great deal of effort.
---------------------------------------------------------------------------
\9\ The codes Lee took have been assigned letters as ``alias''
names rather than using the true code names. (App. at 345.)
---------------------------------------------------------------------------
(App. at 174-75.) In addition, Lee down-partitioned and downloaded
``all of the data files required to operate those codes,'' as well as
multiple input decks representing actual nuclear bomb designs that
ranged in sophistication from relatively simple to complex. (App. at
174-76,523-25.)
Dr. Krajcik described Lee's personal library\10\ of America's
nuclear secrets as ``chilling'' because it
---------------------------------------------------------------------------
\10\ According to Dr. Krajcik, the 806 megabytes of classified
information in Lee's library existed in only two other places in the
United States--the two national weapons laboratories, LANL and Lawrence
Livermore. (App. at 526-27,533.)
---------------------------------------------------------------------------
contained the codes important for doing design or design
assessment, files important to determine geometries, important
successfully tested nuclear weapons. It contained important
output setups, nuclear output setups. It contained devices
across a range of weapons, from weapons that were relatively
easy to manufacture, let's say, to weapons that were very
sophisticated and would be very difficult to manufacture. It
contained the data bases that those codes would require to run.
And for someone who used those codes to incorporate them into
any kind of calculations that were made in terms of designing
something new orchecking something old, it was all there. . . .
It really represents a capability that someone could use to design and
analyze nuclear weapons.
(App. at 509-10.) Lee's theft of Codes A and G involved the taking of
everything an unauthorized possessor would need to design a functional
secondary device.\11\ (App. at 510-12.) And Code D, which Lee also
misappropriated, was the ``latest and best tool as of 1997'' for
primary design. (App. at 514).
---------------------------------------------------------------------------
\11\ Lee attempted to take one other secondary design code, but the
team leader of that particular code turned down Lee's three attempts to
gain access to that code. (App. at 194-96.)
---------------------------------------------------------------------------
Like his fellow LANL scientists, physicist John Romero found Lee's
down-partitioning of America's nuclear secrets to be ``unimaginable.''
(App. at 652, 664). Romero was incredulous when he discovered what Lee
had done. ``I could not believe it. I cannot--I still cannot. I have
trouble believing it. It's just--all the codes, all the data, all the
input files, all the libraries, the whole thing is there, the whole
ball of wax, everything.'' (App. at 664.)
Mr. Romero, the team leader for Code A, explained that Lee took
Code A in two different formats, one of which was contained in File
1,\12\ and the other in File 2. (App. at 652-53.) The disturbing
difference between Files 1 and 2 was that File 1 contained the Cray
supecomputer version of Code A while File 2 contained a version of Code
A that was adapted to run on non-Cray computers, albeit at far slower
speeds. (App. at 652-53.) Although Code A was designed to run on a Cray
supercomputer, if one did not know the computing resources of a
potential unauthorized possessor, one contemplating espionage would
take both versions. (App. at 654-57.)
---------------------------------------------------------------------------
\12\ The nineteen TAR files that Lee downloaded and as alleged in
the indictment are designated by numbers one through nineteen.
---------------------------------------------------------------------------
The same was true with the SRD data files Lee took in Files 5 and
7. According to Mr. Romero, File 7 contained all of the data, both
classified and unclassified, necessary to run any LANL nuclear weapons
source code in ``IEEE binary format.'' (App. at 657.) File 5, a subset
of File 7 in that it contained only classified data files, was in
``ASCII format,'' which is ``human readable.'' \13\ Lee's theft of all
of LANL's data files in two different formats, a ``portable'' machine
readable binary format and a human readable text, would be useful for
unauthorized possessors with uncertain computing platforms. (App. at
600.)
---------------------------------------------------------------------------
\13\ Lee also down-partitioned and downloaded the unclassified data
files in ASCII format, which were the balance of what was contained in
File 7. (App. at 658.)
---------------------------------------------------------------------------
The information that Lee knowingly down-partitioned and downloaded
on to the missing portable computer tapes would mean different things
to different unauthorized possessors. (App. at 177.) For a group or
state that ``did not have the indigenous scientific capability to do it
alone,'' the information ``would represent an immediate capability to
design a credible nuclear explosive.'' (App. at 177.) A country that
had some experience with nuclear explosives could use the information
to optimize its nuclear bombs. (App. at 178.) An advanced nuclear state
could use the information to ``augment their own knowledge of nuclear
explosives'' and to ``uncover vulnerabilities in the American arsenal
which would help them to defeat our weapons through anti-ballistic
missile systems or other means.'' (App. at 178.)
After being briefed on the contents of Files 1 through 19 and Tape
N,\14\ Dr. Robinson, the current president of Sandia National
Laboratory, testified that the information on the missing tapes
``represent[s] a portfolio of information that would allow one to
develop a simple, easily manufactured weapon such as a terrorist weapon
all the way up to the very best that the United States is capable of
designing.'' (App. at 690.) Dr. Robinson believed that putting Lee at
liberty under any condition of release would be a risk of the magnitude
of a ``you bet your country decision.'' (App. at 691.) What Lee did was
``a grave undercut to our strategic posture.'' (App. at 695.)
---------------------------------------------------------------------------
\14\ Lee assigned letters to the tapes he created, which are
consistent with the designations of the tapes in the indictment. (App.
at 1069-71.)
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U.S. Department of Justice, United States Marshals
Service, District of New Mexico,
Albuquerque, NM, January 6, 2000.
Re: Federal Inmate Wen Ho Lee.
Mr. Lawrence Barreras,
Warden,
Cornell Corrections, Inc., Santa Fe County Correctional Facility, Santa
Fe, NM.
Dear Mr. Barreras: We have reviewed the Cornell Correction/Santa Fe
County Correctional Facility Segregation Policy with the United States
Attorney's Office and we agree with some additional restrictions, the
standard segregation policy currently in place at your facility would
adequately confine Mr. Wen Ho Lee.
I understand implementing additional restrictions would not inflate
the jail rate all ready established with the United States Marshals
Service. Therefore, effective immediately it is requested that Mr. Lee
be held in segregation with the following additional restrictions
imposed:
1. Mr. Lee is to be kept in segregation until further notice
(single cell).
2. Mr. Lee is not to have contact with other inmates at anytime.
3. All outgoing mail except legal mail will be screened by the
F.B.I.
4. Mr. Lee will not be permitted personal telephone calls.
5. Mr. Lee will be allowed to place collect telephone calls to
attorneys of record Mr. John Cline at (505) 244-7514 and/or Mr. Mark
Holscher at (213) 430-6613. A member of the jail staff will dial the
telephone number and wait to verify that the attorney is on the line.
6. Mr. Lee will be allowed contact visits with his attorneys only.
7. Mr. Lee will be allowed non-contact visits with immediate family
members. To include his wife Sylvia Lee, his daughter Alberta Lee and
his son Chung Lee. The family will schedule visits through attorneys
John Cline or Mark Holscher. The attorneys will contact the FBI to
arrange visits and they in turn will contact the Senior Warden or
Deputy Warden. The FBI must be on site to monitor each visit. Visits
will not be allowed unless an FBI agent is present.
8. Visitors are to be restricted to Attorneys of Record and
immediate family.
9. Any changes to Mr. Lee's conditions of confinement will be
authorized by USMS personnel only.
10. Mr. Lee is not to be removed from the facility by anyone unless
authorized by the USMS.
Thank you for your assistance in this matter and if you have any
further questions or concerns, please do not hesitate to contact me or
Chief Deputy Tommy Bustamante.
Sincerely,
John S. Sanchez,
U.S. Marshal.
______
Law Offices of Freedman, Boyd, Daniels, Hollander,
Goldberg & Cline, P.A.,
Albuquerque, NM, January 6, 2000.
Re: United States v. Wen Ho Lee, Crim. No. 99-1417 JC/DS (D.N.M.)
Robert J. Gorence, Esq.,
Acting U.S. Attorney,
Albuquerque, NM.
Dear Bob: We consider Dr. Lee's present conditions of confinement
to be unlawful. I expect to address this point with you in detail
shortly. In the meantime, I request the following changes:
1. At present, Dr. Lee must remain indoors 24 hours per day. He
spends virtually all of that time in his cell. I ask that Dr. Lee
receive at least two hours outdoors every day. I understand from
officials at the detention center that this could be done without
exposing Dr. Lee to any of the inmates.
2. Dr. Lee should be permitted to have a television, radio, and CD
player in his cell and to receive access to newspapers.
3. Dr. Lee should be permitted to shower daily, rather than only
five days per week, as at present.
These changes could not possibly cause the government any security
concern, and they would somewhat mitigate the harsh circumstances of
Dr. Lee's detention.
I would appreciate a prompt response to this request.
Very truly yours,
John D. Cline.
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MEMORANDUM OF TELEPHONE CONTACT
Subject: Wen Ho Lee.
Originator: Mr. Larry M. Wortzel, PhD., Director, Asian Studies Center,
The Heritage Foundation, Washington, DC.
Received by: Darrell G. Smith, Chief Investigator, Senate Judiciary,
Criminal Justice Oversight Subcommittee.
Date/Time: January 21, 2000; 12:30 pm.
Mr. Wortzel stated that: In addition to the information he provided
to me on January 13, he has recently obtained supplemental information.
He has been in touch with Debbie Young, employee at DIA (202) 231-4350,
who advised that the notice which was generated to him, when he was
still at the U.S. Embassy in Beijing, has been located and reflects the
following information:
Instead of the fall of 1995 or 1996, the conference in
Beijing, China was actually held from 10/30/97 through 11/8/97.
The Jianguo Hotel, is correct in regard to the location where
the conference was held.
Based on the listing contained in the notice, neither Wen Ho
Lee nor Sylvia Lee are reflected as official members of the
delegation from Los Alamos. He assumes that since Sylvia Lee
stated to him that the Chinese paid for her way, that they also
probably paid for Wen Ho Lee as well, since Wen Ho Lee is not
listed as one of the members of the delegation.
Teresa Richardson is listed as the American administration
person from Los Alamos who was acting as the liaison person for
Los Alamos.
This memorandum contains a summary of information provided by Mr.
Wortzel on January 21, 2000.
Darrell G. Smith,
Chief Investigator,
Criminal Justice Oversight Subcommittee.
______
U.S. Department of Justice,
Federal Bureau of Investigation,
Albuquerque, NM, May 2, 2000.
Hon. Norman C. Bay,
U.S. Attorney, District of New Mexico, Albuquerque, NM.
Dear Norman, Confirming our telephone conversation on April 26th,
please be advised regarding my concerns in the event that the special
administrative measures (SAM) as authorized by United States Attorney
General Janet C. Reno were to be relaxed so as to allow Dr. Wen Ho Lee
to potentially make an unauthorized disclosure of classified United
States information.
I am deeply concerned that in the event the special administrative
measures were loosened, our ability to detect an unauthorized
disclosure of classified information would be seriously jeopardized.
Additionally, I am of the firm conviction that any loosening of the SAM
would enable Dr. Lee to communicate with an agent of a foreign power
regarding the disposition or usage of the materials contained in the
seven missing tapes.
You may recall that Special Agent Robert A. Messemer testified in
two detention hearings that there was no reasonable assurances to the
community arising from any combination of court imposed restrictions
which could reasonably guarantee our national security. The Tenth
Circuit Court of Appeals upheld the district court's detention order.
As you well know, Dr. Lee has not afforded us with an opportunity
to re-interview him regarding the whereabouts of the tapes or to
furnish us with sufficient details regarding the timing and means of
the purported destruction of the seven missing tapes containing Secret
and Confidential Restricted Data relating to the research and design of
nuclear weapons.
Accordingly, we are not satisfied that the tapes, in fact, have
been destroyed.
Notwithstanding the fifty-nine count indictment for which Dr. Lee
is currently charged, our investigation is continuing. Our ability to
effectively undertake our current investigation would be adversely
affected in the event Dr. Lee were to be released from the provisions
of the SAM.
As a father and husband myself, I am naturally sensitive to the
concerns of the Lee family and their desire to communicate with one
another for mutual support and succor. It is precisely my personal
concern and compassion for Dr. Lee that we in the FBI have fully
supported the idea, as first expressed by Dr. Lee's counsel, to modify
the SAM to afford Dr. Lee with his weekly family visits on Saturdays in
lieu of Fridays.
Therefore, in view of the above and in consideration of the
overriding national security implications in the event the SAM were to
be relaxed from its current implementation, I highly recommend without
reservation that the Attorney General authorize a 120 day extension of
the SAM upon the expiration of the original measures.
Sincerely,
David V. Kitchen,
Special Agent in Charge.
______
Santa Fe County
Sheriff's Department,
Albuquerque, NM, March 10, 2000.
memorandum
To: Samuel Montoya, County Manager.
From: Raymond L. Sisneros, Sheriff.
Subject: County Inmate Wen Ho Lee.
This is to inform you that earlier this week I received some phone
calls from unknown persons concerned that Mr. Lee was being mistreated
and not properly cared for in the jail.
Today at 9:30 a.m., I personally met with Mr. Lee for about 20
minutes in his jail cell. I explained my role as Jail Monitor and the
calls I received. Other than being incarcerated he had no complaints.
The staff was treating him very well and singled out Warden Barreras
and Deputy Warden Romero as treating him great. He told me he has seen
a doctor when requested, and has not been sick or ill at any time
during his incarceration. His only request was for additional fruit at
the evening meal which I relayed to Warden Barreras. I gave him my
business card and told him to contact me through his attorney if there
was any mistreatment or other issues regarding his incarceration.
At no time did we discuss his case or any fact relating to it. I
emphasized my role as the Jail Monitor.
Because of the high profile nature of this case, I felt it was
necessary to either confirm or disapprove the allegations. Mr. Lee was
very surprised about the calls and stated, ``I haven't complained to
anyone about the jail because I am being treated very well.''
Please brief the Commissioners in case they are confronted by any
concerned parties that may try to make demands.
______
The Department of Energy,
Washington, DC, May 4, 2000.
Hon. Janet Reno,
Attorney General of the U.S., Department of Justice, Washington, DC.
Dear Attorney General Reno: At the request of the Department of
Justice, I enclose a recertification under 28 C.F.R. 501.2 that the
unauthorized disclosure of classified information described in the
indictment in the above referenced case would pose a threat to national
security. I understand that this certification will assist you in
continuing special administrative measures during the period of Dr.
Lee's pretrial confinement designed to protect the extremely sensitive
weapons information that the indictment alleges Dr. Lee diverted to his
own possession. I fully support doing all that is necessary to protect
against further compromise of this information.
At the same time, I want to emphasize my concern that, to the
extent consistent with protection the sensitive weapons information to
which the indictment of Dr. Lee pertains, Dr. Lee's civil rights as a
pre-trial detainee should be honored. I understand that, in response to
a request by Dr. Lee's counsel, the Department of Justice has arranged
for a translator to be present when he speaks with his family so that
he can speak Chinese. I further understand that arrangements have been
made to permit him to visit with his family on weekends, to have access
to Los Alamos National Laboratory with his lawyers under appropriate
safeguards so that he can prepare his defense, and to have access to a
radio and reading material of his choice, as well as a reasonable
period of exercise every day. Finally, I understand that the conditions
of his confinement are in no respect more restrictive than those of
others in the segregation unit of the detention facility, where he is
confined specifically to protect against further compromise of
classified information. Based on this information, I am satisfied that
his civil rights are being adequately protected.
Yours sincerely,
Bill Richardson.
_____
U.S. Department of Justice, United States Attorney,
District of New Mexico,
Albuquerque, NM, July 17, 2000.
Re: United States v. Wen Ho Lee, Crim. No. 99-1417 JP.
Lawrence Barreras,
Senior Warden, Santa Fe County Detention Center, Santa Fe, NM.
Dear Warden Barreras: I write to confirm our conversation of this
morning and to thank you for your favorable response to our request to
arrange for the following three modifications of the conditions of
confinement for the defendant Wen Ho Lee (``Lee''). First, we request
that Lee be permitted to enjoy his daily recreation without any wrist,
leg or belly restraints. Second, we request that he be afforded
recreation on Saturdays and Sundays as well as his current weekday
recreation hours. Finally, we request that he be allowed extra fruit.
REMOVAL OF RESTRAINTS DURING RECREATION PERIODS
As I understand it, Lee is housed in administrative segregation at
the Santa Fe County Correctional Facility. As is the case of all others
housed in administrative segregation, Lee enjoys at least one hour per
day of recreation. During such recreation periods, as is the case for
all other administrative segregation inmates, Lee's hands were
handcuffed to a belly chain. Given that, unlike most or all of the
other inmates housed in administrative segregation, Lee was not placed
in such segregation because he violated any of the detention facility's
rules, or posed a risk of violence toward any staff or fellow inmate at
the facility, our request was that he not be in a belly chain or
otherwise handcuffed during his recreation periods.
As I understand it, the reason Lee has been handcuffed during his
recreation period is because the rules of the detention facility
required it as opposed to the explicit conditions of the Attorney
General's SAM order. However, because the SAM order provides that the
more restrictive conditions of the SAM order or the detention
facility's rules apply and because the SAM order does not require
restraints during recreation, you are free to remove the restraints
during recreation. I have been advised that the Marshal's Service has
no opposition to your accommodation of our request in this regard. I
greatly appreciate your willingness to modify your facility's general
rule in the case of this one inmate's housing conditions, and I
appreciate your recognition of the unique circumstances of this
situation.
WEEKEND RECREATION PERIODS
While, due to lack of correctional officer personnel, no inmate
housed in administrative segregation is afforded recreation on
weekends, I appreciate your willingness to arrange for such recreation
for Lee on weekends. During our conversation today, you indicated that
you would arrange for such weekend recreation provided that any
additional costs would be considered by the Marshal's Service. I would
appreciate your addressing this directly with the Marshal's Service in
the hopes that you can resolve this issue as per our request.
ADDITIONAL FRUIT
While I was unaware of this issue, I thank you for advising me of
it and your willingness to allow Lee more fruit.
Please call me at (505) 224-1516 should you require any additional
information. I had been under the mistaken impression that these
modifications had already been made so I would be grateful if you would
notify me as soon as they are implemented. Thank you again for your
assistance in this matter.
Very truly yours,
George A. Stamboulidis
(For Norman C. Bay, U.S. Attorney).
______
Cornell Corrections,
Santa Fe, NM, July 18, 2000.
Mr. George A. Stamboulidis,
Assistant U.S. Attorney, U.S. Department of Justice, Albuquerque, NM.
Dear Mr. Stamboulidis: As per our conversation and in reply to your
letter dated July 17th, 2000 I will arrange to have restraints removed
from inmate Wen Ho Lee during his scheduled recreation times, and we
will continue to give inmate Wen Ho Lee additional fruit.
I did not agree to provide inmate Wen Ho Lee weekend recreation as
it will involve additional staff costs. I indicated that I am willing
to accommodate the request if per diem is arranged through the USM
office for that service. This matter will have to be coordinated
through your office.
If you have further questions please contact me at 471-4941 ext.,
214.
Sincerely,
Lawrence Barreras,
Senior Warden.
______
Law Offices of Freedman, Boyd, Daniels,
Hollander, Goldberg & Cline, P.A.,
Albuquerque, NM, July 26, 2000.
Re: United States v. Wen Ho Lee, Crim. No. 99-1417 JP (D.N.M.)
George A. Stamboulidis,
Assistant U.S. Attorney, Office of the U.S. Attorney, Albuquerque, NM.
Dear George: On July 12, you stated in open court that, through the
efforts of your office, Dr. Lee would be permitted to exercise without
restraints. I have no doubt that you made this statement in good faith
and believed that it was true. Unfortunately, in the two weeks since
you made your statement, Dr. Lee has not been permitted to exercise
without restraints, and has, in fact, received almost no exercise at
all. I do not know whether this is a deliberate effort on the part of
someone in the government to make Dr. Lee's conditions more onerous or,
more likely, simple bureaucratic indifference. Whatever the case, I ask
that you please do everything in your power to make your statement to
the Court become a reality.
Very truly yours,
John D. Cline.
______
Cornell Corrections,
Santa Fe, NM, August 1, 2000.
Mr. George A. Stamboulidis,
Assistant U.S. Attorney, Department of Justice, Albuquerque, NM.
Dear Mr. Stamboulidis: In response to your letter dated July 30th,
2000 inmate Wen Ho Lee began recreating without restraints on July
18th, 2000 at 8:30 a.m. As of August 5th, 2000 he is also allowed
participation in the recreation yard 7-days a week for a period of 1-
hour per day.
In reply to inmate Wen Ho Lee's housing conditions: inmate Wen Ho
Lee is permitted to have a radio in his cell, this gives him the
ability to listen to news programs; he receives reading materials per
the SAM guidelines.
In addition, an exception to the rule was made to grant inmate Wen
Ho Lee visits on Saturdays opposed to the regular Friday visiting
schedule; this was done in order to accommodate his family. Supervisors
are the only staff that are assigned to oversee his escort and visit.
Inmate Wen Ho Lee also receives extra fruit at dinnertime, daily.
If you have further questions or require additional information
please contact me at 471-4941 ext. 214.
Sincerely,
Lawrence Barreras,
Senior Warden.
______
U.S. Department of Justice, U.S. Attorney, District
of New Mexico,
Albuquerque, NM, September 7, 2000.
Hon. Janet Reno,
Attorney General of the United States,
Washington, DC.
Dear Attorney General Reno: The United States Attorney's Office for
the District of New Mexico requests that you, pursuant to your inherent
authority as the Attorney General of the United States, direct the
United States Marshal Service to extend again the special
administrative measures that have been taken in effect since January
13, 2000 with respect to the pretrial detention of Wen Ho Lee. You
renewed the special administrative measures once before on May 12,
2000. The requested special administrative measures continue to be
necessary to prevent the disclosure of highly sensitive classified
information.
As you know, Wen Ho Lee (``Lee'') was directed on December 10, 1999
on charges of illegally transferring nineteen TAR files containing
Secret and Confidential Restricted Data relating to the research and
design of nuclear weapons in the U.S. arsenal. The indictment also
charged Lee with downloading most of this information onto ten portable
computer tapes, seven of which still are missing.
Lee has been in custody since the day the indictment was returned.
Both a United States Magistrate Judge and then a United States District
Judge found that Lee posed such a risk of danger to the nation that
there was no condition or combination of conditions under which Lee
could be released pending trial. The risk Lee posed, and continues to
pose, is that he may reveal to an unauthorized possessor either the
whereabouts of the missing tapes or how to use the information on those
tapes.
On February 29, 2000, the Tenth Circuit Court of Appeals upheld the
district court's detention order, observing that
[t]he ``potentially catastrophic'' risk to the safety of the
community, indeed the nation, presented by Lee's ability to
communicate information about the location of the missing tapes
or their contents if he is released pending trial . . . is
unprecedented. . . . We can conceive of few greater threats to
the safety of the community than the risks presented in this
case.
On August 24, 2000, after three days of hearings on Lee's Renewed
Motion for Pretrial Release, Judge Parker granted Lee's motion. Judge
Parker reasoned that ``[i]t is no longer indisputable, as the
government made it appear in December 1999, that the missing tapes
contain crown jewel information about the nation's nuclear weapons
program.'' Nonetheless, Judge Parker ordered that Lee be released
subject to extremely strict conditions designed to prevent Lee from
communicating with any third party, indicating that any such
communications still pose a danger to national security. Lee was
scheduled to be released at noon September 1, 2000.
On September 1, 2000, the government obtained authorization from
the Solicitor General to appeal Judge Parker's release order and to
request a stay of that order. The government filed its Notice of Appeal
and Request for Stay approximately half an hour before Lee was
scheduled to be released. During the hearing on the government's
Request for Stay, the Tenth Circuit issued a stay until further order
of that Court. The government filed an emergency request for stay in
the Tenth Circuit later on September 1, 2000, which currently is
pending.
Nothing has changed since the special administrative measures were
first imposed to reduce the risk of Lee disclosing highly sensitive
classified information to an unauthorized possessor. Consequently, we
request that the special administrative measures imposed on January 13,
2000 and renewed on May 12, 2000 be extended for another 120 days upon
the expiration of the original measures.
Sincerely,
Norman C. Bay,
U.S. Attorney.
______
Unclassified Statement of DCI George J. Tenet as Requested by the SSCI
The Central Intelligence Agency did not play a decision-making role
in the question of whether or not Wen Ho Lee should be prosecuted for
mishandling sensitive nuclear weapons information. The Agency was asked
to look at the potential value to unauthorized recipients of the
information FBI said was included on the tapes Wen Ho Lee was alleged
to have made, some of which were missing. The Agency did not make any
recommendations about how the investigation should proceed or whether
or not Wen Ho Lee should be prosecuted.
At a December 4, 1999 meeting at the White House Situation Room, we
were asked to summarize the potential value of the information FBI said
was included on the tapes. Based on FBI's verbal summary of the tapes,
they appeared to contain US nuclear weapon design codes and specific
descriptions of the materials and geometry of several nuclear weapon
primaries and secondaries. We briefed the attendees that this
information would help primarily from a design perspective, providing
significant insight and guidance almost equating to a graduate course
in nuclear weapons design. But for a country to design, develop, test,
and deploy a nuclear weapon, more is required than design codes; for
example, a country must possess the requisite fissile material, the
fabrication technology to build the device, and the engineering
expertise to weaponize the device for delivery. The actual value of the
information depends in large part on the capabilities of the country or
group that received it. Our analysis included countries with robust
nuclear weapons programs; with nuclear weapons programs but little or
no testing; with limited or no programs but with high technological
capabilities; and without technological capabilities.
Our participation in the meeting was limited to providing a brief
summary of the potential value of the information if obtained by
others.
______
Department of Energy,
Washington, DC, April 3, 2001.
MEMORANDUM FOR THE SECRETARY
From: Gregory H. Friedman, Inspector General.
Subject: Special Review of Profiling Concerns at the Department of
Energy (I01HQ003).
In November 2000, the former Secretary of Energy requested that the
Office of Inspector General review the extent to which ``profiling'' of
Federal and contractor employees has occurred in the Department of
Energy (Department) security process. Specifically, we were asked to
review whether, based on employees' national origin, the Department
unfairly treated employees during the security clearance renewal
process, and in actions taken as a result of security violations. In
short, information reviewed by the Office of Inspector General did not
support concerns regarding unfair treatment based on national origin in
the security processes reviewed.
Scope and methodology
Our review focused on Headquarters, Lawrence Berkeley National
Laboratory, Lawrence Livermore National Laboratory, Los Alamos National
Laboratory, Oak Ridge National Laboratory, and Sandia National
Laboratories. We worked with representatives from a number of
Department organizations to identify instances in which individuals
alleged that unfair treatment occurred based on national origin in the
security clearance renewal process and in actions taken as a result of
security violations. These included: The Office of the National
Ombudsman; Office of Economic Impact and Diversity; Office of Hearings
and Appeals; Office of Security Affairs; and the Operations Offices in
Albuquerque, Oakland, and Oak Ridge. We also worked with security
personnel to review security-related data.
To put the scope of our review in context, at any given time, there
are a number of Department personnel, both Federal and contractor,
pursuing grievances and other concerns with respect to alleged
discrimination, bias, or disparate treatment based on race, age,
gender, religion, and other factors in the employment arena. An
examination of these matters was not part of our review. Consequently,
we are not in a position to comment on the general climate in the
Department with respect to these concerns.
Concerns regarding ``profiling'' in the Department of Energy were
heightened in the aftermath of the espionage investigation and arrest
of a former nuclear weapons scientist at the Los Alamos National
Laboratory. We did not address whether the former Los Alamos scientist
was himself a victim of unfair treatment. This matter has been part of
a review by the Department of Justice and, thus, it was not included in
the scope of our review.
Findings
Our review identified four cases involving possible unfair
treatment. None of the cases was the subject of a formal complaint of
discrimination. Nevertheless, we examined the general circumstances of
these cases, and found that they did not support concerns regarding
unfair treatment based on national origin in the security processes
reviewed.
Our review disclosed that the Department's security does not
systematically record, track or maintain information concerning
individuals' national original in a centralized database. The
``Questionnaire for National Security Positions,'' which must be
completed by each employee for a Department of Energy security
clearance, does request information concerning an individual's country
of birth and citizenship. Similar information is also requested for
certain members of the individual's family. We were informed that the
questions are included in order to determine whether the individual's
or relatives' potential affiliations with other countries warrant
further customary and appropriate review and analysis. Security
officials asserted that to systematically record national origin and
similar information, other than as described above, could be perceived
as engaging in the very ``profiling'' sought to be avoided.
In January 2000, the Office of the National Ombudsman was
established as a component of the Office of Economic Impact and
Diversity to provide an opportunity for employees to confer with a
neutral designee to discuss concerns, recommendations, and complaints
they perceived were interfering with work, productivity, or morale. The
National Ombudsman summarized for the Office of Inspector General the
concerns expressed to him about the security process. He developed the
information through one-on-one encounters, surveys, and ``town hall
meeting.'' These concerns included:
Alleged insensitive remarks and offensive attitudes;
The appearance of double standards;
Questionable and ambiguous policies and rules;
Possible abuse of authority;
Potential disparate treatment.
The National Ombudsman stated his belief that there are ``. . .
strong and continuing allegations about bias and profiling. . . .''
However, the Ombudsman declined to identify the individuals who had
expressed concerns, citing his commitment to maintaining the
confidentiality of those with whom he spoke. Additionally, he indicated
that he did not generally maintain records of his encounters, and could
not provide statistical data, which may have identified improper
patterns of unfair treatment. He stated that he recognizes the need for
the Office of the National Ombudsman to have a system in place to
capture important information brought to the office. He expects that
such a system will be developed.
The National Ombudsman further advised that when themes or trends
are identified by his office with respect to discrimination and
disparate treatment, a memorandum may be sent to appropriate Department
managers. The National Ombudsman advised that no such memoranda had
been sent relative to the issues within the scope of the Office of
Inspector General review.
Our review was one of a number of initiatives underway serious
public and employee concerns about unfair treatment. The Department,
for example, initiated several steps designed to combat and eliminate
the possibility of discrimination of any kind. This included the
formation of the Task Force Against Racial Profiling. The Task
Forcerecommended, in part, that a team be established to promptly
address security practices which may involve questions or issues of
racial ``profiling.'' The Task Force's Implementation Team Report of
January 2001 states that a Security Issues Resolution Team has been
established to address such safeguards and security matters. The Office
of Economic Impact and Diversity has informed us that the Security
Issues Resolution Team had not received or processed any allegations.
Additionally, we were informed that the Office of Economic Impact
and Diversity and its subordinate offices will focus on and launch
several initiatives during Fiscal Year 2001 and beyond relating to
unfair treatment. According to the Office of Economic Impact and
Diversity's most recent annual report, the office plans, in part, to
``conduct the year 2001 Department-wide electronic survey to measure
the workplace climate;'' ``develop and implement action plans to
address racial profiling in the workplace;'' and ``extend the review
and reporting of employee concerns at DOE to include the activities of
contractor employees.'' Furthermore, the Office of the National
Ombudsman has identified a goal to analyze ``trends and patterns of
employment, security clearances, and accountability actions [emphasis
added]'' and participate in the ``review of Department-wide policies,
processes, and procedures.''
General Accounting Office reviews
The U.S. General Accounting Office (GAO) recently initiated a
review of personnel actions at Department weapons labs over the past
decade to determine if there has been differential treatment in the
handling of cases involving minorities. The current review follows a
December 1994 GAO report on suspensions of security clearances for
minority contractor employees at the Department's Albuquerque, Oak
Ridge, and Savannah River Operations Offices.
GAO reported that the number of security clearances suspended for
any particular group was relatively small. Nevertheless, GAO found that
the clearances of certain racial or ethnic groups at the reviewed
offices were suspended more often that would be statistically expected.
GAO further reported that the Department did not monitor suspensions of
security clearances for ``minority groups'' and was not aware of the
statistical disparities. GAO noted that disparities in the number of
clearances, in and of themselves, did not mean that the Department is
or is not discriminating against racial or ethic groups.
GAO recommended that the Department (1) investigate the reasons for
the disparities identified by GAO in the number of security clearances
suspended for contractor employees and take action to correct any
problems the investigation identifies, and (2) require that data on the
racial and ethnic background of contractor employees whose clearances
are suspended at all locations be compiled, monitored, and reviewed to
identify any statistical disparities, and investigate and take
appropriate corrective action if such disparities occur.
We learned that the Department disputed the methodology used by GAO
in its statistical analysis and took the position that regulations
prohibit requiring employees to provide information on race, ethnicity,
or gender for use in granting or suspending clearances. Nevertheless,
in response to the GAO report, the Department indicated that the Office
of Safeguards and Security would provide listings of individuals whose
clearances are revoked through Fiscal Year 1996 to the Office of
Economic Impact and Diversity, which would attempt to collect
information on employees' race and ethnicity on a voluntary basis.
Documentation made available to the Office of Inspector General
indicates that a list wasgenerated by the Office of Safeguards and
Security for Fiscal Year 1995. We could not confirm, however, that the
Office of Economic Impact and Diversity took follow-up action on the
Fiscal Year 1995 list or that a list was generated or analyzed for
Fiscal Year 1996.
Conclusion
Information reviewed by the Office of Inspector General did not
support concerns regarding unfair treatment based on national origin in
the security processes examined. Despite our efforts to obtain all
relevant information, there is no assurance that the four cases cited
above were the only instances at the Department of Energy in which a
Federal or contractor employee believes he or she has been the victim
of ``profiling.'' Indeed, the National Ombudsman observed, based on his
own interviews, that allegations of ``profiling'' emerged frequently
and among many groups. However, factors beyond our control, such as the
Ombudsman's understandable commitment to affording confidentiality to
those with whom he spoke, may have resulted in an underreporting to the
Office of Inspector General of the total number of employees who
believe they have been the victims of ``profiling'' in areas that were
a part of our review.
Recommendations
Based on our assessment, we recommend that the Department,
including the National Nuclear Security Administration:
(i) Examine its actions in response to the 1994 GAO report to
ensure that all appropriate steps have been taken to implement the
recommendations;
(ii) Determine if there are, in fact, statutory restrictions or
other rules limiting the collection of data on national origin, race or
ethnicity for Federal and contractor employees in relation to security
processes;
(iii) Determine whether to implement a process for identifying
statistical disparities in security processes; and
(iv) Facilitate innovative initiatives by the Office of Economic
Impact and Diversity, including the Office of the National Ombudsman
and the Security Issues Resolution Team, to identify, address, and
resolve cases or concerns about ``profiling.''
Over and above the fundamental question of fairness to all
individuals, disparate treatment--both real and perceived--can have a
detrimental effect on morale within the Department's workforce.
Consequently, management at both the federal and contractor levels must
ensure that the Department's zero tolerance policy for such treatment
is executed in a way that promotes confidence in the basic fairness of
the security process.
______
U.S. Senate,
Committee on the Judiciary,
Washington, DC, October 8, 1999.
Hon. Janet Reno,
Attorney General of the United States, Department of Justice,
Washington, DC.
Dear Madam Attorney General: I am in receipt of your classified
response to me dated October 1, 1999 (though apparently delivered to
our Senate Security afterward), and shall address with you in due
course the principal issue that is the subject of that correspondence--
the reasons for the inquiry recently begun by you and Director Freeh
into the efficacy of earlier investigations into the compromise by
China of our government's sensitive W-88 nuclear technology.
In the meantime, however, I must ask for your prompt attention to a
matter of grave concern that was raised only peripherally in your
recent letter, and that had been broached by you in only the most vague
terms in he course of our September 24, 1999 meeting. I refer to your
letter's acknowledgment that, at the time of your June 8 appearance
before this Committee, the Department of Justice had not ``pulled
together'' all the documents pertaining to the Department's
investigation into possible espionage by Mr. Wen Ho Lee, and to your
concession in our recent meeting that some of your testimony at the
June 8 hearing was therefore inaccurate. I was surprised to learn of
the nature and contents of some of these documents, as they bear
directly on the Committee's consideration of the facts surrounding the
investigation of Mr. Lee.
I am deeply concerned that the Department's apparent failure to
provide you with key documents prior to the time of your testimony
before the Senate Judiciary Committee may reveal serious neglect by
Department officials.
Indeed, there appears to be an alarming frequency with which the
Department staff fails to share with you (and, in turn, the Congress)
pertinent information concerning the most important investigations
being undertaken by federal law enforcement authorities. Most recently,
in the course of the report by the Department's own Inspector General
that contends the Department's campaign finance investigation was
conducted ineptly [Inspector General's Report, Unclassified Executive
Summary, ``The Handling of FBI Intelligence . . .,'' July 1999, at 4-
5], it is concluded that you were not properly apprised by Department
staff of the existence of key pieces of information. Further, as has
been made clear by your recent statements, you were not apprised of key
documents within the possession of the Department and the Bureau that
pertained to the use of incendiary devices in the final hours of the
confrontation at Waco.
I am also concerned that this most recent example of a belated
discovery of documents means that this Committee, too, has been
thwarted in its efforts to obtain all relevant documents concerning the
role played by the Department and the Federal Bureau of Investigation
in investigating this matter. As you know, I repeatedly asked you and
other Department officials whether the Judiciary Committee had received
all documents pertaining to its investigation of Mr. Lee. [See, e.g.,
May 5, 1999 hearing, placing AG on notice of the Judiciary Committee's
intent to inquire into the Department and Bureau's investigatory
actions concerning Mr. Lee; June 4, 1999 letter to AG, constituting a
``formal request for all documents generated within the Department of
Justice that related in any way to an application under [FISA]
concerning Mr. Wen Ho Lee''; June 14, 1999 letter to AG requesting ``a
log of all documents, by date and description--whether extant or not,
and including all notes, letters and communications (including any
electronic mail)--that were generated by any employee or agent of the
Department . . . that pertain in any manner to the consideration of a
FISA application concerning Mr. Wen Ho Lee''; July 22, 1999 letter
(with Sen. Specter) to AG ``request[ing] . . . all documents in the
Department's possession relating to . . . the Department's decision not
to prosecute Mr. Wen Ho Lee'').].
Accordingly, and regrettably given this late date, I would ask that
you prepare for me promptly a list, by date and description, of those
documents that were not timely provided to this Committee, together
with an explanation as to why such documents were not submitted to this
Committee in accord with the Committee's more-than-four-month-old
document requests. Moreover, I ask that you provide me with your view
as to which of these documents--or which parts of these documents--
would be properly declassified so as to be shared with the public.
Please submit your response to me by October 13, 1999, or the
Committee will need to consider pursuing other options to exercise its
oversight functions.
Sincerely,
Orrin G. Hatch,
Chairman.
______
Department of Justice,
Federal Bureau of Investigation,
Washington, DC, November 10, 1999.
Hon. Fred Thompson,
Chairman, Senate Governmental Affairs Committee,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: In my testimony before your Committee on June 9,
1999, I provided, on several occasions, my assessment of the Department
of Energy (DOE) Administrative Inquiry (AI) that, in part, formed the
bases upon which the FBI predicated its investigation of Wen Ho Lee. I
understand that I stated at different times that:
(1) I ``had full credibility in the report'';
(2) I had ``found nothing in DOE's AI, nor the conclusions
drawn from it,'' to be erroneous; and
(3) I stated there is a ``compelling case made in the AI'' to
warrant focusing on Los Alamos.
At the time of my testimony, these statements were based on my
personal review and understanding of the facts and the FBI evaluation
of the AI. I believed then that these statements were accurate given
that understanding.
I have, subsequent to that testimony, asked for and become aware of
additional facts that I want to bring to your attention, in order to be
certain that the record before your Committee is complete and accurate.
(1) In November, 1998, and December, 1998, and again in January,
1999, there were some written analyses by FBI Albuquerque (FBI AQ)
which question the accuracy of certain representations and conclusions
in the AI. Although these documents were sent to FBI Headquarters
(FBIHQ), I was unaware of their existence before I testified in June.
Further, I have recently learned that the January, 1999, document
was included in a briefing book provided to me, other Bureau Executives
and Senior Department of Justice officials in May, 1999. It was
included in a section about polygraph issues because that was the
primary focus of the document. It transmitted the results of the DOE
polygraph administered to Wen Ho Lee. I did not review that section of
the briefing book to include the January, 1999, document at that time,
inasmuch as I was familiar with the polygraph issue and I knew Wen Ho
Lee had failed an FBI polygraph shortly after this document would have
arrived at FBI Headquarters.
(2) In July, 1999 I engaged in a dialogue with SAC AQ regarding
this AI. We agreed that a draft document would be provided to me
regarding FBI AQ's analysis of this AI. Upon receipt of this draft on
or about July 9, 1999, and a subsequent conversation with the SAC, I
then learned there was a document submitted to FBIHQ in January, 1999.
I have since become aware of the two (2) previous documents (November,
1998 and December, 1998), which contain statements questioning the
scope of the AI. I understand all of these documents have been provided
to your Committee.
As a result of my dialogue with SAC AQ, we agreed that AQ would
conduct a number of interviews in an attempt to further understand and
expand upon the technical portions of the AI. On August 20, 1999, FBIHQ
located and interviewed one of the scientists who participated in the
technical portion of the AI. This scientist stated that he had
expressed a dissenting opinion with respect to the technical aspects of
the AI. His statement is in direct conflict with the AI submitted to
the FBI because the AI does not reflect any dissension by the ``DOE
Nuclear Weapons Experts.''
Based upon a verbal briefing by FBI AQ of this August 20, 1999,
interview, I requested that AQ submit to me a document establishing,
for the record, FBI AQ's concerns with this AI. Upon receipt of this
document, I shared it with the Director and it has since been shared
with the Attorney General and the Secretary of Energy. Based upon this
document and other factors, a review has been initiated by the FBI to
re-evaluatethe scope of the AI. I understand that you or your staff
have received a briefing on the scope and direction of this new
initiative and that it should not impact on any subsequent criminal
investigation of Wen Ho Lee. The focus of this new initiative is to
determine the full universe of both compromised restricted nuclear
weapons information and who had access to that information in addition
to anyone identified in the original AI.
On June 9, 1999, when I testified before you, I expressed opinions
and provided complete and accurate facts as I understood them. The
information I provided to you was in complete candor. Given the above
information, if asked to describe the AI today, I would have a
different response. While the FBI review is not complete, it appears
that the technical and dissemination aspects of the AI, at a minimum,
deserve to be questioned and that is what the FBI is now doing. As soon
as we resolve this issue, we will provide you with those details.
I would be pleased to discuss this with you or your staff in any
format you choose. By this letter, I am only intending to amplify and
clarify my prior testimony relating to the AI. I am not intending to
imply anything about the underlying case involving Wen Ho Lee, the FISA
issue or any other issues that have been explored before your
Committee. As you know, those issues depend on varying degrees of
information that exists independent of the AI, e.g., information
developed pre-1996 or as a result of the criminal aspects of the
current investigation.
Again, thank you for this opportunity. I am available at your
convenience.
Respectfully,
Neil J. Gallagher,
Assistant Director,
National Security Division.
______
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, October 25, 1999.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate Washington, DC.
Dear Mr. Chairman: This is to provide a written response to your
letter of October 8, 1999 to the Attorney General concerning matters
related to the documents Attorney General Reno and FBI Director Freeh
provided you on October 1st. As you may know, we have already had
several discussions with Committee staff regarding some of the issues
you raise. In addition, we discussed several of the documents and
related issues during a meeting earlier today with Senator Specter and
staff for the majority and minority of both the full Committee and the
Subcommittee.
Turning to your letter, the Department of Justice and Bureau made
diligent efforts to respond to the Committee's document requests dated
June 4 and June 14, 1999 specifically related to the Wen Ho Lee FISA
application. Your October 8th letter suggests that the Department's
August 2 response to your July 22, 1999 document request was
incomplete. We look forward to meeting with your staff to clarify this
matter.
We have also located or obtained some additional documents after
writing you on October 1st. These documents include a classified review
prepared by Special Agent-in-Charge Stephen W. Dillard (Dillard Review)
that we received on October 14, 1999 and three slightly different
copies of a February 22, 1999 FBI memorandum that transmitted several
documents to the Department's Internal Security Section, including a
document dated January 22, 1999 that is mentioned in the discussion
below.\1\ We provided copies of the transmittal memorandum to Senator
Specter and the staff during our meeting on October 22, 1999.
---------------------------------------------------------------------------
\1\ As reflected in the October 1st document index provided to the
Committee, the FBI shared a draft of the Dillard Review with the
Attorney General on September 23, 1999.
---------------------------------------------------------------------------
After we received the Dillard Review, we promptly asked the
appropriate agencies to review it for release to Congress. We will
provide the Dillard Review to the Committee as soon as those agencies
complete their review. We will be pleased to discuss any of these
documents inmeetings with your staff. Please be advised that the
Dillard Review when produced will contain redactions for national
security and because it contains restricted access data, it will
require a high security clearance for review.
Neither the Attorney General nor Fran Fragos Townsend were aware of
the October 1st documents or those enclosed today when they testified
before the Committee on June 8, 1999. When the Attorney General became
aware of the October 1st documents, she promptly directed that they be
provided to the Committee because they are related to issues that arose
during the June 8th testimony and in staff briefings. Pursuant to the
request in your letter, set forth below is a chronological explanation
of the Department's acquisition of the October 1st documents.
On September 8, 1999 Director Freeh provided the September 3, 1999
Albuquerque memo (Tab V in the previously provided October 1 documents)
to the Department and asked to meet with the Attorney General to
discuss the contents of the memorandum. That briefing took place on
September 14, 1999. Also on September 8th, the Department learned that
the September 3rd memorandum from Albuquerque had been the subject of
discussion and refinement between Albuquerque and the National Security
Division (NSD) at FBI Headquarters. At the September 14th briefing, the
Attorney General was told of the August and October, 1995 Albuquerque
documents (Tabs C and D) and the September 1999 interview of Special
Agent Van Magers (Tab V). It is our understanding that Director Freeh
had first learned of the existence of the August and October 1995
documents earlier that day.
On September 15, 1999 the Attorney General asked to review the
drafts of the September 3, 1999 Albuquerque memo. On September 16, the
Attorney General was provided with drafts dated July 9, 1999 and August
26, 1999 (Tabs S and T) along with transmittal memoranda (Tab W).
Separately, on September 16, 1999 the FBI provided the Attorney General
a copy of the Senate Governmental Affairs Committee staff questions
(Tab II). The issues raised by the Senate Governmental Affairs
Committee staff and other considerations caused Deputy Director Bryant
to direct SAC Dillard to review the 1995-1996 period of the Kindred
Spirit investigation.
On September 16, after reviewing the drafts of the September 3rd
memo, the Attorney General requested copies of the documents referred
to therein (i.e., documents dated 11/98, 12/98, 1/99 and 1/22/99) from
the FBI. On September 17, 1999, pursuant to a separate request from the
Attorney General, Assistant United States Attorney Randy Bellows
provided copies of an FBI memorandum from Albuquerque dated November
19, 1998 (Tab P), the January 22, 1999 Albuquerque memorandum (Tab Q),
and a March 4, 1996 FBI routing slip and attached materials (Tab CC)
\2\ On September 17, 1999, the FBI also provided the Attorney General a
copy of the January 22, 1999 Albuquerque memorandum (Tab Q) and a draft
investigative plan for the reopening of the investigation (Tab X). As
discussed above, the FBI provided the January 22 memorandum to the
Internal Security Section on February 22, 1999.
---------------------------------------------------------------------------
\2\ Pursuant to the Attorney General's direction and with the
concurrence of Director Freeh, Mr. Bellows is conducting a complete
review of the Department of Justice and FBI's handling of the Los
Alamos National Laboratories and Wen Ho Lee investigation (Tab BB). He
began his review in May, 1999 and issued a document production request
to the FBI on June 7, 1999. Mr. Bellows had not acquired any of the
documents attached to our letter of October 1 prior to the Attorney
General's testimony. Mr. Bellows had advised the Attorney General that
the report of his review will be completed by January of 2000.
---------------------------------------------------------------------------
On September 20, 1999 the Attorney General requested a copy of the
November 10, 1998 memorandum in the November 19, 1998 document. The FBI
provided the November 10, 1998 document on September 21 (Tab O). On
September 24, 1999 pursuant to the Attorney General's request, we
received documents from Mr. Bellows (Tabs A, B, E, F, G, H, I, K, L, N,
R). These documents, which we produced on October 1, 1999, related to
the DOE Administrative Inquiry.
On September 22, 1999, the Attorney General asked that the FBI
prepare a chronology of its decision to reopen the investigation into
the compromise of nuclear technology. On September 24, 1999, the FBI's
National Security Division provided a draft chronology (Tab Y). On
September 28, 1999 the FBI provided the Attorney General: two interview
reports, one dated September 16 and the other September 21, 1999; and
an FBI briefing paper dated July 20, 1995. (Tabs AA, DD, HH). After the
FBI provided these documents, the Office of Intelligence Policy and
Review (OIPR) double checked for related materials. OIPR located the
one page review form and an entry in an electronic log (Tab J and M).
On September 29, 1999, again pursuant to the Attorney General's
request, Mr. Bellows provided an FBI memorandum dated January 29, 1999
regarding the status of the Wen Ho Lee investigation (Tab GG). Finally,
on September 30, 1999, pursuant to the Attorney General's request, the
FBI provided us two interview reports both dated July 20, 1999. (Tab EE
and FF).
The DOE Administrative Inquiry report dated May 28, 1996 was also
provided on October 1st. (Tab Z). Although the Department of Justice
obtained the Administrative Inquiry on May 24, 1999 and the Attorney
General referred to it during June 8th testimony, the Administrative
Inquiry is a Department of Energy report and we could not release it to
the Committee without DOE's consent. Because the Department understood
that the Committee wanted to review the Administrative Inquiry, we
contacted DOE and obtained its consent to provide the Administrative
Inquiry to the Committee on October 1st and did so on that date.
We will be glad to have senior Justice Department and FBI personnel
to further brief the Committee and Subcommittee's majority and minority
staffs at their convenience on matters pertaining to the Department's
acquisition of these documents. In addition, we will continue to search
for other documents related to the Attorney General's testimony and are
continuing our efforts to obtain additional information regarding the
time and manner in which various entities within the Department came to
acquire copies of the documents. On a related matter, it is premature
to consider declassifying the October 1st documents because they
directly pertain to ongoing investigative efforts.
Please do not hesitate to contact me if I may provide you with
additional information.
Sincerely,
Jon P. Jennings,
Principal Deputy Assistant Attorney General.
[GRAPHIC] [TIFF OMITTED] T4193A.185
[GRAPHIC] [TIFF OMITTED] T4193A.186
Department of Energy,
Washington, DC, January 31, 2000.
Hon. Arlen Specter,
Chairman, Subcommittee on Alleged Chinese Espionage,
Senate Committee on the Judiciary, Washington, DC.
Dear Chairman Specter: I have reviewed the draft Interim Report of
the Judiciary Oversight Subcommittee on Alleged Chinese Espionage that
recently was provided to the Office of Counterintelligence. I thank you
for the opportunity to provide comments on this draft.
I strongly disagree with a number of the report's assertions
regarding my involvement with the Kindred Spirit investigation during
the September 1998-February 1999 time period. I am particularly
disturbed by the report's conclusion that my decision to interview Mr.
Lee was based on the upcoming publication of a congressional report as
opposed to sound counterintelligence investigative practice.
I am also concerned about what I believe are inaccuracies regarding
the sequence of events surrounding the DOE polygraph of Mr. Lee in
December 1998. I would like the opportunity to explain my role in the
investigation, and believe that until now I have not been afforded
sufficient opportunity to address the serious congressional concerns
regarding DOE's actions. I was first made aware of these concerns on
December 14, 1999, when you met with the Federal Bureau of
Investigation (FBI), Department of Justice, and DOE representatives to
discuss the Subcommittee's Chinese espionage inquiry.
Attached for clarification is a written statement on the sequence
of events surrounding the interview of the espionage subject, the DOE
polygraph, and the interaction between DOE and the FBI throughout the
September 1998-February 1999 time period. Also attached is a copy of a
letter dated January 4, 2000 from FBI Assistant Director, Neil J.
Gallagher that attempts to clarify some misperceptions about what
actually took place. I hope that these documents will assist the
Subcommittee in assessing the management of the Kindred Spirit
investigation.
Sincerely,
Edward J. Curran,
Director, Office of Counterintelligence.
Attachments: (2).
January, 31, 2000.
I, Edward J. Curran, have been assigned as the Director of the
Office of Counterintelligence (OCI) for the Department of Energy (DOE),
Washington, DC since April 1, 1998. I was detailed from the Federal
Bureau of Investigation (FBI), Washington, DC to this position by the
Director of the FBI, Louis Freeh. At the time of my detail, I was the
Section Chief of the Eurasian Section of the National Security
Division, FBI Headquarters (FBIHQ). My current position was mandated by
President Decision Directive/NSC (PDD)-61, signed by President Clinton
in February of 1998. PDD-61 required the FBI to detail a senior
counterintelligence officer to DOE to: initially evaluate DOE's
counterintelligence program; submit recommendations for improvement;
and then serve as the Director of OCI. In order to carry out those
responsibilities, PPD-61 gave me the authority to have direct access to
the Director of the FBI, the Director of Central Intelligence, and the
Secretary of Energy.
On December 14, 1999, I accompanied General Eugene Habiger,
Director of the DOE's Office of Security and Emergency Operations, to a
briefing before Senator Arlen Specter, Chairman, Subcommittee on
Administration Oversight and the Courts, Committee on the Judiciary,
U.S. Senate. General Habiger informed me that FBI Director Freeh asked
him to attend this briefing because Director Freeh was going to request
Senator Specter to postpone his Committee's review of the Mr. Wen Ho
Lee espionage matter that was scheduled to begin the next day. Director
Freeh asked General Habiger to attend and explain the potential damage
caused by the missing tapes.
At the conclusion of the briefing, I was asked by Senator Specter
and his Chief Investigator, Mr. Dobie McArdle, why I had denied the FBI
Albuqerque charts on Mr. Wen Ho Lee. Mr. McArdle said that the FBIAQ
stated that since I denied the FBI access to the DOE charts the FBI was
working under the assumption that Mr. Lee had passed the polygraph and
the FBI's investigation was essentially terminated. The FBI said that
if they had known he had failed, the FBI would have gone back to the
Department of Justice (DOJ) and requested a resumption investigative
activity. They believe that they would have been authorized coverage
with the added knowledge of a deceptive polygraph. I asked Mr. McArdle
where he was getting this information, he referred to a communication
from FBIAQ.
I informed both Senator Specter and Mr. McArdle that I was shocked
by this allegation and in my estimation this entire matter had been
very closely coordinated with the FBI in every aspect. I personally had
spoken with the Special Agent in Charge, Mr. Dave Kitchen, FBIAQ,
before, during and after DOE's interview and polygraph of Mr. Lee. I
was never asked for anything that was not immediately provided to the
FBI and I never gave instructions to anyone within DOE to withhold any
information, files or records. I told Senator Specter that on January
22, 1999, I was told by Mr. David Renzelman, DOE polygraph quality
control, that the FBI requested the polygraph charts of Mr. Lee. I
immediately instructed him to provide the FBI whatever data they
needed. Up until that time, I was under the impression they already had
the charts. I recall having a conversation with Mr. Kitchen the day of
the DOE polygraph test, December 23, 1998, in which he said he was very
satisfied with the test. The DOE interview and polygraph of Mr. Lee was
never intended to be a substitute for an FBI interview and polygraph.
DOE's primary purpose was to remove Mr. Lee from access to the X
Division and hopefully polygraph him, while the FBI concluded their
investigation. DOE personnel were instructed, by me, thatthe interview
was not to be confrontational and the interview was to be low keyed so
as not to alert him that the FBI was conducting an investigation. It
was always my understanding the FBI would then interview Mr. Lee and
request him to take an FBI polygraph.
Senator Specter stated that this was one of the reasons for having
hearings, since this is one of the issues which needs to be resolved
and obviously there is a difference of opinion as to the events of the
case.
On December 14, 1999, I called Mr. Neil Gallagher, Assistant
Director, National Security Division (NSD), and expressed my concern
about the document referred to by Mr. McArdle, alleging that I refused
to provide polygraph charts to the FBI. I asked Mr. Gallagher for the
dissemination list of the memo. He said he had not previously seen the
document, although he had believed it to be of minor importance. I told
him I did not consider it minor since I was being falsely quoted in an
official document, and the document had been disseminated to a Senate
Oversight Committee. Mr. Gallagher said he was going to review the
matter and if the facts in the memo were untrue then he would so advise
Senator Specter.
On December 14, 1999, I called Mr. Kitchen, FBIAQ, concerning the
memorandum. He immediately apologized for the memo, indicating he had
not seen it before it was disseminated and he would not have allowed it
out of the office. He said the facts were untrue and there was nothing
that FBIAQ had asked for that they had not received from DOE.
In the attached letter dated January 4, 2000, Mr. Gallagher
responded to the issues I raised concerning the blind memo. Mr.
Gallagher states in the letter that the original blind memo had been
provided to Senator Specter's Committee, in addition to the DOJ and
other Congressional Committees. Mr. Gallagher states in the letter they
could find no documentation in FBI files attributing the statements I
allegedly made. He continues to state that FBIAQ had asked for the
charts but did not insist on them.
Mr. Gallagher's memo dated January 4, 2000, states that the FBIAQ
communication was prepared by FBIAQ as a result of a telephone
conversation between Assistant Special Agent in charge (ASAC), William
Lueckenhoff and Deputy Assistant Director, Sheila Horan, NSD, and was
intended only to be a ``rough'' update of the status of the
investigation. Mr. Gallagher goes on to state ``as a blind memorandum
it was not intended to capture official witness statements or other
evidence.
Every detail of this case was coordinated between DOE and the FBI.
I personally wanted the FBI to do the interview rather than DOE, but
they stated that they were not ready to interview him because they
first wanted to interview some neighbors and associates of Mr. Lee. DOE
had been asking the FBI to bring this case to a conclusion since the
use of an investigative technique in August. I did not believe I had
the luxury of waiting any longer since the investigative activity in
August and this was Mr. Lee's first opportunity to leave the U.S. I was
very concerned as to what he would do and say on his trip to Taiwan and
then what he would do upon his return. Since the FBI was not going to
interview Mr. Lee and bring this case to a conclusion prior to his
departure to Taiwan, I made the decision, with the Secretary's
approval, to remove Mr. Lee from access upon his return from Taiwan and
until the FBI could conclude their investigation through interview and
polygraph.
Mr. Lee returned from Taiwan on December 23, 1998. He was
interviewed and removed from access and asked to take a polygraph. The
FBI was aware that if Mr. Lee refused to take a DOE polygraph, his
security clearance would have been removed and steps taken to terminate
his employment; if Mr. Lee agreed to take the test and failed, his
clearance would be removed and termination proceedings would be
initiated. This activity was completely coordinated with the FBIAQ. On
December 21, 1998, a memo was furnished to the Secretary of Energy from
me setting forth the above scenario. Mr. Lee took the polygraph test
and representatives from FBIAQ were present. I have been told by DOE
personnel on the scene that the FBI agents were provided a complete
briefing on the results of the test and were informed of the one
question that was very close to being deceptive. They were told that he
had passed. The FBI people asked what was the procedure at this point
and they were told the charts would be submitted for quality control.
According to all the DOE personnel present, the FBI never asked for a
copy of the charts or anything else connected with the test and if they
had, they would have been given immediate copies. DOE personnel stated
that the FBI did not have their polygraph examiner on the scene and no
one ever told the FBI, that I said, they could not have copies of the
charts or anything else.
Mr. Gallagher's letter continues to state that the FBIAQ
immediately asked for the charts at the conclusion of the DOE's test
but did not insist on them. I deny this is the case based on my
discussions with DOE personnel involved in this matter. The first time
the FBI asked for the polygraph charts, to my knowledge, was on January
22, 1999, and they were furnished to the FBI the same day. The FBI
interviewed Mr. Lee on January 17, 1999, and again on January 21, 1999,
without asking him to take an FBI polygraph. However, in their blind
memorandum they stated that they received the charts on January 22,
1999, after making the original request 30 days before. FBIAQ goes on
to state in the blind memorandum that it wasn't until February 3, 1999,
following a review of the polygraph documentation sent to FBIHQ, that
they became aware that issues were present, and that the polygraph was,
in fact, inconclusive. FBIAQ goes on to state, that on February 7,
1999, FBI personnel from Washington, including polygraph examiners,
traveled to Albuquerque to conduct the second polygraph of Mr. Lee. In
Mr. Gallagher's January 4, 2000, letter to me, his last paragraph goes
on to state ``that FBIAQ was making inquiries as to the status of the
charts, and FBI was concerned with the time factor. When the FBI was
informed that the charts were available they were immediately obtained
and transmitted to FBIHQ and the quality control review conducted.''
Mr. Gallagher states, ``upon learning that the FBIHQ Polygraph Unit
believed the results to be inconclusive, this was immediately relayed
to me by telephone.'' This scenario portrayed by FBIAQ to Mr. Gallagher
is not accurate.
On February 5, 1999, at approximately 3:00 PM, I telephoned Mr.
Chuck Middleton at FBIHQ, Section Chief, NS2. I informed Mr. Middleton
that I had to make a decision as to whether Mr. Lee was to be placed
back into X Division at Los Alamos. The original agreement was to
remove him from access for 30 days, in order to allow the FBI to
conclude their investigation. I had extended that time for two
additional weeks and I now needed to make a decision, as to where he
would be placed. I asked Mr. Middleton if there was anything the FBI
was working on which might affect my decision. Mr. Middleton reminded
me that the decision was mine to make. I thanked him and assured him I
was well aware of that, but asked if there was anything I should know
that would impact my decision. He claimed that he knew nothing that
would impact my decision. I immediately informed the DOE Operations
Office in Albuquerque that asof Monday morning, Mr. Lee could return to
X Division. At approximately 4:00 PM, the same day, Mr. Middleton
called me and told me that he just found out that FBIHQ polygraph unit
had just reviewed the DOE polygraph charts and found them to be
deceptive, not inconclusive, as reported in Mr. Gallagher's letter and
also reported in the blind memorandum. Mr. Gallagher's letter stated
that I was immediately informed of this inconclusive decision received
on February 3, 1999. For the record, I initiated the phone call to
FBIHQ on February 5, 1999, and was only informed then. I immediately
told Mr. Middleton that I was sending our polygraph personnel to Los
Alamos to have Mr. Lee retested on the morning of February 8, 1999,
before Mr. Lee would be allowed back to X Division. I was informed
either that day or over the weekend by Mr. Middleton, that the FBI
would polygraph Mr. Lee, Monday morning and DOE should stand down. I
was subsequently informed by the FBI that Mr. Lee failed the FBI
polygraph on February 10, 1999, but that they required more time with
Mr. Lee before DOE terminated his employment. I asked them to make that
request in writing, which they did in an FBI communication dated
February 23, 1999.
The recommendation to interview Mr. Lee and remove him from access
pending the completion of the FBI investigation was mine and approved
by Secretary Richardson. My decision was based on sound fundamental
counterintelligence reasons, which I am willing to reiterate and
clarify. At no time did I make this decision based on any political
issues nor did anyone ever suggest that I do so. This case was
completely coordinated by me with the Special Agent in Charge of FBIAQ,
Mr. David Kitchen. He completely agreed with my decision and as of
January 28, 2000, stated he is willing to state that to anyone,
however, no one has ever asked him.
Edward J. Curran,
Director, Office of Counterintelligence.
______
Department of Justice,
Federal Bureau of Investigation,
Washington, DC, January 4, 2000.
Mr. Edward J. Curran,
Director, Office of Counterintelligence,
Department of Energy, Washington, DC.
Dear Ed: I have been provided a copy of the undated FBI blind
memorandum captioned ``KINDRED SPIRIT; LEE, WEN HO; LEE, SYLVIA; FCI-
PRC.'' As we discussed telephonically, this document is in the
possession of DOJ and I understand has been provided to one or more
Congressional Committees. Also as we discussed, I told you I would
cause an in-depth review to be made in the FBI and if appropriate,
correct any misperceptions this document creates when viewed out of
content. Having stated that, it is the purpose of this letter to (1)
put that document into its proper context and (2) correct at least what
I understand from you are two apparent misinterpretations of this
document.
With respect to the document, I have been advised that it was
created by FBI Albuquerque as a result of a telephonic discussion
between the Assistant Special Agent in Charge and a Deputy Assistant
Director of the National Security Division. It was intended only to be
a ``rough'' update of the status of the investigation prepared by FBI
Albuquerque. It was not intended to be further disseminated or to
reflect all of the facts about any aspect of the investigation. As a
``blind memorandum'' it also is not intended to capture official
witness statements or other evidence. In common parlance, it is the
equivalent of a ``note to the file.'' From what you described, it
underscores the difficulty associated with utilizing any one document
to characterize a long term investigation or for that matter a critical
aspect of the investigation.
With respect to the details of this document, I would like to
comment on two aspects in particular:
(1.) In the first paragraph there are reported details of the
polygraph of Wen Ho Lee on December 23, 1998. These facts are accurate.
However, as we discussed, your impression was that this paragraph
suggested that there was not the high level of coordination between the
FBI and DOE regarding this polygraph that you understood existed. To
the contrary,from everything I know, this polygraph was coordinated
appropriately. FBI Albuquerque agreed in advance with its role in a
stand-by capacity as this was at the time a DOE administrative matter.
My recent review did not identify any coordination issue or conflict
with respect to the conduct of the polygraph.
(2.) The second paragraph reports on the status of an access to the
polygraph charts (for subsequent FBIHQ Polygraph Unit quality control
review). It also attributes a DOE response to you by name.
With respect to the attribution to you by name, I can find no FBI
employee that can confirm such a statement. It may be that someone in
DOE used your name, but even that is not certain. Any indication that
you personally made a statement preventing the FBI access to the
polygraph charts is inaccurate.
With respect to the remaining facts in this paragraph as to access
to the charts they are accurate. However, they can in hindsight easily
be taken out of context. When we were informed on December 23, 1998,
Wen Ho Lee passed the polygraph, immediate access to the charts was
requested but not insisted by the FBI. We were informed of the DOE
internal handling procedures. At the time, in part because we were
under the impression he had passed the polygraph, we waited for the
charts to be provided as we understood they would be. FBI Albuquerque
did make inquiries as to the availability of these charts and were
concerned with the time factor involved. However, I can find no formal
request made of DOE to expedite the process. When we were informed of
the charts availability, in Albuquerque, they were immediately obtained
and transmitted to FBIHQ, and the quality control review conducted.
Upon learning that the FBIHQ Polygraph Unit believed the results to be
inconclusive, this was immediately relayed to you telephonically.
I hope these comments place in proper context the blind memorandum
and eliminates any misunderstanding on the two aspects noted above.
Sincerely yours,
Neil J. Gallagher,
Assistant Director,
National Security Division.
______
Defense Security Service,
Alexandria, VA, February 14, 2000.
Hon. Arlen Specter,
Hon. Robert G. Torricelli,
Attention: Carlton Hoskins, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Senator Specter: This letter is in response to your February
10, 2000 letter sent as a follow-on to the February 8, 2000 telephonic
request made by Mr. Carlton Hoskins, on behalf of the Judiciary
Committee, to Mr. William Norris, of the Department of Defense
Polygraph Institute (DoDPI). These requests were for the opinion
rendered by DoDPI on the results of the polygraph examination performed
by the Department of Energy (DOE) on Mr. Wen H. Lee on December 23,
1998. Attached is a copy of the Memorandum for the Record outlining the
initial request made by DOE and the opinion rendered by the DoDPI
staff.
If you have any questions, please contact a staff member of the
Office of Congressional and Public Affairs Office at (703) 325-9471.
Charles J. Cunningham, Jr.,
Director.
Attachment.
28 Jan 1999
MEMORANDUM FOR RECORD
Subject: Critique of DOE PDD Examination conducted by Wolfgang Vinskey
on 23 Dec 1998.
Examinee: Lee, Wen H.
1. On 27 Jan 1999 the QAP received a PDD examination from US
Department of Energy requesting that QAP review the aforementioned exam
and related documents for an additional opinion.
2. A quality control review was conducted by SA Gary Light, SA
George Chigi, SA David Miller and SA Donald Dutton on 27 Jan 1999. Each
DODPI examiner reviewed the charts utilizing a seven position scale. In
each instance, the QC review by all DODPI personnel was opined to be No
Opinion.
3. On 28 Jan 1999 SA Light and SA Chigi engaged in a telephone
conversation with Mr. John Mata, Program Manager for DOE in which he
was informed of the outcome by DODPI personnel. Mr. Mata was informed
that DODPI determined that results of the examination to be No Opinion.
Mr. Mata then inquired as to what we thought should be done at this
point, and he was informed by SA Light that the examinee should be re-
examined due to the inconclusive nature of the examination. Mr. Mata
was asked if he wanted an official written record of the QC review by
DODPI and he indicated that he did not desire a written report, stating
that our verbal report was sufficient.
______
U.S. Senate,
Committee on the Judiciary,
Washington, DC, September 18, 2000.
Hon. Janet Reno,
Attorney General,
Washington, DC.
Dear Attorney General Reno: I am writing to request the Senate
Judiciary Subcommittee on Administrative Oversight and the Courts Task
Force on the Department of Justice Oversight be provided a copy of the
following Wen Ho Lee documents:
(1) The complete FBI case file, including everything that was
previously segregated as being related to the criminal case;
(2) Notes and memoranda prepared for any meetings related to the
case, including but not limited to the meeting at the White House in
December 1999 (just prior to the indictment);
(3) All correspondence between the FBI/DoJ and the DoE regarding
the classification level of the information Dr. Lee downloaded;
(4) Every document or record submitted by the government in the
case;
(5) Every document or record submitted by Dr. Lee's lawyers to the
government, including but not limited to the December 1999 offer to
make Dr. Lee available to explain what happened to the tapes and the
final sworn statement that Dr. Lee provide as part of the plea
agreement, and the government's response to any such correspondence.
Sincerely,
Arlen Specter.
______
Department of Justice,
Office of Legislative Affairs,
Washington, DC, January 20, 2001.
Hon. Patrick Leahy, Chairman,
Hon. Orrin Hatch, Ranking Member,
Committee on the Judiciary.
Hon. Bob Graham, Chairman,
Hon. Richard Shelby, Ranking Member,
Select Committee on Intelligence,
U.S. Senate, Washington, DC.
Dear Chairmen Leahy and Graham and Senators Hatch and Shelby: The
Department of Justice appreciated the opportunity to testify on
September 26, 2000, before the joint hearing of the Senate Judiciary
Committee and Senate Select Committee on Intelligence regarding the
investigation and prosecution of Dr. Wen Ho Lee. During that hearing
and the follow-up hearing the next day before the Department of Justice
Oversight Task Force of the Judiciary Committee's Administrative
Oversight and the Courts Subcommittee, a number of questions were
raised concerning the conditions of Dr. Lee's confinement.
This letter provides further information on this matter, which has
been provided to me by persons within the Department involved in the
case. It is important to remember the context in which we are dealing--
a set of rules governing incarceration that are intended to cover the
prison population at large, not an individual prisoner on a case-by-
case basis.
The attention focused on the specifics of Dr. Lee's confinement has
underscored a number of public policy concerns, the resolution of which
involve a careful balancing of interests. For example, given the
physical stature of this particular prisoner and the likely low risk he
presented of causing physical harm to others, using restraints on him
while he was outside of his cell seemed unnecessary to some. But, using
restraints on him in the manner described below flows directly from a
policy that sets bright line rules that apply to all prisoners under
defined circumstances. These bright line rules are, in the Department's
view, better than an alternative that would require detention facility
personnel to make ad hoc decisions in each individual prisoner's case.
A rule allowing such discretion would invite both favoritism and abuse.
With these overarching policy considerations in mind, the following
provides additional details about the circumstances of Dr. Lee's
confinement. There is no federal detention facility in New Mexico. Dr.
Lee therefore was placed in the Santa Fe County (New Mexico) Detention
Facility. This facility has a contract with the federal government to
house federal prisoners and is about an hour's drive from Albuquerque.
In addition, it was the joint and firm belief of the federal agencies
involved that the gravity of the national security issues at stake
required that until Dr. Lee's case was resolved he could not be allowed
to communicate freely with others. Thus, the facility in which he was
held had to be able to provide conditions of detention that would
prevent such communications. The Santa Fe facility was able to provide
confinement with that restriction under its administrative segregation
policies. The facility also provides voluntary segregation for some
inmates if they request it for their own protection, as in the case of
a cooperating witness. However, the facility's voluntary segregation
regime was not appropriate for Dr. Lee because it would have allowed
him to make unmonitored phone calls and to have unmonitored
conversations with other inmates.
While housed in the Santa Fe County Detention Facility, Dr. Lee was
subject to all of that facility's other regulations for all prisoners
in administrative segregation in addition to the ban on unmonitored
communications. One of those requirements is that prisoners in
administrative segregation must be in ``full restraints'' (handcuffs,
waist chains, and leg irons) whenever they are outside of their cells
within the facility, including during exercise periods. Dr. Lee was not
in restraints while in his cell. In July 2000, after the issue was
raised by Dr. Lee's attorneys, the restraints policy was modified
uniquely for Dr. Lee so that he, unlike others in administrative
segregation, could exercise without restraints.
Transportation of Dr. Lee from the detention facility to the
courthouse for court appearances or meetings with his attorneys was
conducted by the United States Marshals Service. When Dr. Lee left the
detention facility for these reasons, he was delivered into the custody
of the Marshals Service by detention facility personnel. The detention
facility placed Dr. Lee in full restraints during these custody
transfers, as is the case for all prisoners. Similarly, Marshals
Service policies require that all prisoners, including Dr. Lee, be
fully restrained during transport. The Marshals Service's ``full
restraints'' policy, like that of the Santa Fe detention facility,
requires use of handcuffs, waist chains, and leg irons.
Upon arrival at the federal courthouse in Albuquerque, Dr. Lee was
placed in a holding area cell administered by the Marshals Service, at
which time all restraints were removed. When Dr. Lee was moved form the
holding cell to the suite of offices on the third floor of the
courthouse that had been specially modified by the Department of Energy
for him and his attorneys, he again was placed in full restraints. Once
in the office suite, all restraints except leg irons were removed. Dr.
Lee's counsel did not object to this security procedure. Upon delivery
of Dr. Lee to the office suite, his attorneys closed the self-locking
door and a Deputy Marshal stayed outside the room while Dr. Lee
conferred privately with his attorneys.
At the conclusion of the workday, Dr. Lee's attorneys would open
the office suite's locked door. Dr. Lee would again be placed in full
restraints and transported within the courthouse to the Marshals'
holding area. If he was not taken from the courthouse immediately, Dr.
Lee was placed back in a cell and all restraints were removed. When the
Marshals Service was ready to transport him back to Santa Fe County
Detention Center, Dr. Lee would be placed in full restraints once more
for the ride back to Santa Fe. On arrival at the detention facility,
Santa Fe County personnel would take custody of Dr. Lee and transport
him within the detention facility back to his cell, at which time all
restraints again were removed.
If Dr. Lee had a court hearing, he was first brought to his
attorneys' suite at the courthouse, under the procedures described
above. After meeting with this attorneys, the leg irons would be
removed and he would be escorted, wearing no restraints of any kind, to
the court room. These procedures were then reversed after the court
hearing: Dr. Lee would go back to his attorneys' suite, the leg irons
would be replaced; and he would meet privately with counsel.
The above facts, provided by those within the Department who are
knowledgeable about the policies involved and this particular matter,
reflect a situation where there is a basic policy for detention and
restraint and a deviation from that policy for unique reasons. The
questions to be addressed include whether the basic policy was
appropriate in this matter and, if so, whether the exception made to it
was implemented properly. We believe the overarching question is
whether there is a fair system in place so that prisoners across the
board are treated fairly, not arbitrarily. This concerns us all, and we
believe that the Department has tried to do its best to institute the
best policies and practices that are the most humane, given the
complexities of running detention institutions, ensuring safety, and
treating prisoners fairly. If you have additional questions on this
matter or if I may be of further assistance, please let me know.
Sincerely,
Robert Raben,
Assistant Attorney General.
______
Department of Justice,
Office of Legislative Affairs,
Washington, DC January 19, 2001.
Hon. Orrin Hatch,
Ranking Member, Committee on the Judiciary, U.S. Senate, Washington,
DC.
Dear Senator Hatch: This letter is to follow up on my letters to
Senator Leahy and to you on May 5, 2000. That letter responded to the
Judiciary Committee's Resolution authorized by Committee on November
17, 1999 and to Senator Specter's follow-up letter of April 14, 2000,
which requested records relating the Department's input into the
decision to grant waivers to Loral Space and Communications Ltd. and
the Hughes Electronics Corporation to launch satellites from Chinese
rockets. Although the Department on May 5 and on May 8, 2000 produced
documents to the Committee, the Committee nevertheless issued a
subpoena on May 12, 2000.
In my May 5 letter, I informed you that we had identified some
documents in these files that were generated by other agencies and that
we needed to consult with those agencies for a decision on release. We
notified each agency that these documents were the subject of the
Committee's subpoena. This is to inform you of the status of other
agencies' responses to our notification efforts. The Defense Department
and National Security Agency have agreed that their documents may be
released to the committee; copies are enclosed. The State Department
has indicated to us that its documents may be released with redactions;
we have not yet received their redacted copies. The Commerce Department
and Office of the United States Trade Representative have taken the
position that their documents are outside the scope of the Committee's
subpoena. The National Security Council did not respond to requests for
a decision on release of documents originating there.
In addition, we have identified a small group of documents from FBI
files that require review by the Criminal Division for pending case and
grand jury information. We will notify you as soon as that review is
complete. An identical letter has been sent to the Committee's
Chairman, Senator Leahy.
Sincerely,
Robert Raben,
Assistant Attorney General.
______
January 22, 2001.
To: Senator Specter
From: Dobie
Subject: Response from DOJ
I have attached two letters from DoJ: the first explains the
detention of Dr. Wen Ho Lee, and the second responds to the
subcommittee's request for documents on the DOJ's input on the Loral/
Hughes waiver. The key points of each letter are provided below, but I
have attached the letters in case you wanted to read them in full.
Robert Raben letter on Dr. Wen Ho Lee's confinement--20 January 2001
Responds to inquiries raised at the September 26 and 27, 2000
hearings on the Wen Ho Lee case.
Dr. Lee was held in the Santa Fe County (New Mexico) Detention
Facility because there is no federal detention facility in New Mexico.
The ``administrative segregation'' policies of the detention
facility--which included ``full restraints'' (Handcuffs, waist chains,
and leg irons)--were the same as applied to any other inmate in
administrative segregation, with two exceptions: (1) A ban on
communications was imposed on Dr. Lee that was not imposed on others in
administrative segregation; and (2) After July 2000, Dr. Lee was
allowed to exercise without restraints, unlike others in administrative
segregation.
Dr. Lee was transported by the U.S. Marshals Service, following
standard procedures, which included full restraints.
When Dr. Lee was placed in the holding cell at the federal
courthouse, restraints were removed.
While Dr. Lee met with his attorney, all restraints except leg
irons were removed.
Robert Raben letter on Loral and Hughes documents--19 January 2001
Responds to several requests (November 17, 1999 resolution; Senator
Specter's letter of April 14, 2000; and the Committee's subpoena of May
12, 2000).
Provides an update on ``third agency'' documents related to DoJ's
input on the Loral/Hughes waiver in 1998.
DoD and NSA have agreed to provide documents, but we don't have
them yet.
State Department will provide documents, but is still redacting
them.
Commerce and USTR said their documents are outside the scope of the
subpoena.
NSC did not respond to the request for documents.
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[From the National Review, July 31, 2000]
Energy Loss: What Happened to the Nation's Secrets
(By Notra Trulock)
New revelations about security lapses at Los Alamos National
Laboratory underscore the Clinton administration's continuing failure
to safeguard America's nuclear secrets. For more than a year,
administration officials have assured the nation that these secrets
were secure: Energy secretary Bill Richardson and his political
appointees were vigorously implementing new policies and procedures,
and the lax security arrangements of the past would not longer be
tolerated. The problem is fixed, so let's put this behind us and move
on, high-ranking Department of Energy (DOE) officials urged.
But the new security scandals prove that these assertions were--in
the succinct phrasing of a recent congressional report on DOE
counterintelligence--``nonsense.''
Recent reports from inside the DOE indicate that management has
interfered in security self-assessments at DOE facilities in New Mexico
and, at another DOE lab, permitted sales of computer equipment
containing classified nuclear-weapons information to China. Just what
is going on inside the DOE complex? Can all of this be explained away
as mere incompetence?
In truth, the recent scandals were utterly predictable. While
Secretary Richardson probably has good intentions, he has entrusted the
implementation of his new policies to many of the same Clinton
administration political appointees responsible for much of the mess in
the first place. Congress is setting great store in the establishment
of a new ``semiautonomous'' entity inside DOE: the National Nuclear
Security Administration, headed by Gen. John Gordon. Gordon has the
credentials and experience to do the job, but he will be saddled with
many of the same personnel who have resisted all efforts to reform the
agency. Officials from within the DOE Office of the Secretary
handpicked his staff for him; these officials have repeatedly chosen
``science'' over security, as if these were somehow incompatible.
How did we get here? My intent is to provide some background and
context for understanding the mess within DOE and its national
laboratory complex. This is a tale of cover-ups, complacency, bungling,
and outright dishonesty. I watched as senior DOE officials repeatedly
lied under oath during congressional testimony. Lurking in the
background, of course, were the Chinese fundraising allegations and
investigations of the transfer of missile-guidance technology and
supercomputers to China. I never saw any direct evidence of a linkage
betweenfundraising and these scandals. But the facts--that the Chinese
were spying, and that other foreign intelligence services were feasting
on the DOE labs--are undeniable. The consequences of the loss of
nuclear secrets, technological know-how, and classified information
during this period could be devastating to our national security.
the chinese spy threat
Our first indications that the Chinese had penetrated our nuclear-
weapons labs came in early 1995. We gradually became aware of a broad
Chinese intelligence assault on the labs, one that had been underway
for at least 15 years. Key officials in the Clinton White House were
alerted to our findings in the summer of 1995, but for the next two
years their response was, at best, feeble. In May 1999, the Cox
Committee report finally told the world about China's success against
U.S. nuclear secrets, but, by that point, the damage was done.
The administration's response was to ``shoot the messenger.'' They
sought to undermine the credibility of our warnings of Chinese
espionage--and in the process, they drowned out our warnings of long-
standing security vulnerabilities and counterintelligence shortfalls.
As DOE's director of intelligence, I bore the brunt of many of
these attacks; I was demoted in 1998 and forced out of the department
in 1999. My successor told me that I had single-handedly ``destroyed
DOE,'' and that I was a pariah in the department. I soon read in the
Washington Post and elsewhere that I was a ``dangerous demagogue,'' a
``great impostor,'' ``obsessed,'' and even that I resembled Star Trek's
Captain Kirk. (I never did figure out whether that was a compliment or
a criticism.) Reporters, citing ``anonymous'' sources, accused me of
unfairly singling out one man, Wen Ho Lee, as the culprit in the case.
Racism and xenophobia were imagined in media accounts to explain the
events of the past four years. This was pretty heavy stuff for someone
who has spent most of his career trying to stay out of the public eye;
but it has become routine treatment for whistle-blowers in this
administration. I was not alone; other DOE security officials were
subjected to equal or worse treatment at the hands of the Clinton
political appointees within the department.
I was director of intelligence from 1994 to 1998; in 1995, I also
became director of counterintelligence (CI) at the department. I was
thus responsible for the management of all intelligence and CI
activities within the department and at the DOE laboratories. When I
took over, I found the CI program in total disarray. Despite numerous
espionage attacks on the labs--dating back to the Manhattan Project in
the 1940s--CI was a fairly new program at DOE. The Bush administration,
recognizing the threat to the labs, had done a number of important
reviews and began to implement a viable CI program. The program
faltered, however, because it commanded little respect from lab
scientists and DOE managers. The arrival of the Clinton team in 1993
stopped the program in its tracks. FBI agents on loan to DOE were drive
out of the department, and security in general received little
attention from the new appointees. Funding was reduced, hiring was
frozen, and personnel slots were cut.
Meanwhile, the labs were opening up at an alarming rate. Visits
from, and exchanges with, foreign visitors--particularly those from
such sensitive countries as China and Russia--were encouraged, and
areas of the labs were opened up to facilitate the burgeoning presence
of these visitors. These trends had started late in the Bush
administration, but the new team relaxed even further the security
rules governing such visits. The influx of foreign visitors quickly
outstripped the ability of the CI team at the labs to keep up with it.
Lab managers considered CI mostly a nuisance, in any case, and
Washington's new emphasis on ``openness'' provided the excuse to
further reduce CI funding and staff. The Lawrence Livermore lab had
(and has) a good CI program, staffed with experienced CI professionals,
but lab management was steadily reducing its funding and trimming its
staff.
Counterintelligence at Los Alamos was widely considered a joke
within both the DOE complex and the CI community. Funding for CI was in
a steep decline, and the CI staff there was inexperienced and inept.
Later reports documented the bungled management of the Lee case by the
Los Alamos CI staff; CI officials were also complicit in the relaxation
of safeguards on foreign visitors. Washington had been signaling,
through its decisions on budgets and programs, that CI was largely a
waste of time and money; this message found a very receptive audience
at the labs. It was an ideal climate for espionage--under the guise of
scientific exchanges and visits.
China's espionage objectives against the DOE labs were clear:
Nuclear deterrence is a cornerstone of Chinese strategic planning.
China has opted for a nuclear force that could survive a nuclear attack
and retaliate with enough weapons to inflict great damage on the
attacker. They have not sought a large missile inventory similar to
that of the U.S. or Russia; they have calculated, instead, that a
survivable capability would deter the U.S. or Russia from using force
to thwart Chinese regional objectives--vis-a-vis Taiwan, for example.
The keys to such a survivable nuclear force were new mobile
missiles and the development of smaller, lighter, and more efficient
warheads. The current Chinese ICBM force is roughly similar to that
fielded by the U.S. in the 1960s--heavy, inaccurate, and with slow
reaction times in the event of a crisis. The Cox Committee report
documented how the Chinese obtained the crucial technological know-how
to meet these objectives from the U.S.--through espionage and misguided
technology transfers.
China fixed on the U.S. W-88 nuclear warhead, designed at Los
Alamos, as the benchmark to guide its own warhead developments. China's
selection of the W-88--hailed as the most modern nuclear warhead in the
world--was initially surprising: The technical sophistication of the
warhead seemed far beyond China's grasp. But the Chinese succeeded; by
stealing a proven road map from the U.S. to guide their efforts, they
avoided the expensive and time-consuming scientific blind alleys the
U.S. had experienced before perfecting the technology.
We don't know for sure when the Chinese assault on U.S. nuclear
secrets began. The initial exchange of scientists between China and the
U.S. began late in the Carter administration. By the early 1980s, our
scientists were already expressing concern about the depth of Chinese
knowledge about U.S. nuclear-weapons developments and scientific
trends. Lab apologists and others have asserted that much of China's
knowledge came from the proliferation of nuclear information in the
public domain--but in fact, Chinese scientists were asking detailed and
well-informed questions about classified U.S. nuclearprograms, and
their command of detail did not come from reading Aviation Week & Space
Technology. Surprisingly, however, until the mid 1990s, no one
questioned the expanded interactions with the Chinese.
For reasons that remain classified, by 1995 DOE intelligence
officers and lab experts were suspecting the possible acquisition of W-
88 information by the Chinese. As our deliberations continued, the CIA
alerted us to the existence of a Chinese document containing very
detailed information about the W-88 warhead. The document, now known as
the ``walk-in'' document, has been the subject of much speculation; DOE
officials, among others, have spread disinformation about this document
in an attempt to discredit this important clue to Chinese espionage
successes. The document did provide key evidence of Chinese
acquisitions not just of the W-88, but of nearly all other U.S. missile
warheads. There was (and is) considerable additional evidence, still
classified, which corroborates our conclusion of Chinese nuclear
espionage. The U.S. Intelligence Community Damage Assessment, completed
in 1999, largely validated our conclusions.
the administration responds: an ostrich strategy
Many observers have minimized the importance of Chinese espionage,
underscoring another conclusion of the damage assessment: ``To date,
the aggressive Chinese collection effort has not resulted in any
apparent modernization of their deployed strategic force or any new
nuclear weapons deployment.'' But no one had ever claimed otherwise;
our focus was on the contribution U.S. nuclear secrets would make to
future Chinese developments. They now have the technology; what they do
with it will become clear over the next ten years.
Critics have also contended that even if the Chinese had stolen W-
88 information, they could not actually manufacture such warheads. Such
assertions were heard even from members of the intelligence community,
mostly junior intelligence analysts lacking hands-on experience in
developing nuclear weapons. Our lab experts, on the other hand,
believed that any country with a modern aerospace industry or
manufacturing infrastructure capable of producing precision munitions
could also assemble such warheads. (CIA intelligence specialists
testified before Congress that China would be unable to develop the
``exotic materials'' necessary for the W-88 warheads. When asked to
give some examples of such materials, the specialists had to admit that
they were clueless about the actual components of the W-88.)
We repeatedly warned administration officials about China's
intelligence objectives and its aggressive attack on the labs. By mid
1997, we were able to forecast Chinese targets and objectives,
particularly in the area of nuclear-weapons codes, simulations, and
databases. Not once were our warnings heeded; sadly, we subsequently
learned that our nuclear secrets had been placed on unclassified
computer systems at the labs that were highly vulnerable to outside
computer attacks. Such attacks were occurring at an alarming rate. It
was not until 1999 that FBI computer forensic experts uncovered the
magnitude of the potential loss of our nuclear secrets through computer
attacks.
The administration had been very slow in responding to our
warnings. The FBI's prosecution of the espionage case, formally
underway since mid 1996, had been dilatory at best. Months went by with
little or no FBI action; more than a year passed before the FBI even
attempted to obtain technical coverage of the key suspect in the case.
What the FBI did with the list of eleven other potential suspects
provided to them by DOE in 1996 remains a mystery. We have since
learned that the FBI missed numerous opportunities for breakthroughs in
the case, largely through neglect and ineptitude.
Our first encounters with White House officials came in mid 1995,
when DOE informed White House chief of staff Leon Panetta and CIA
director John Deutch. DOE also had an obligation to inform Congress's
intelligence committee in a timely fashion; by the spring of 1996,
however more than a year after our initial findings we still had not
made the trip to Capitol Hill. Deutch had pledged to handle this
matter, but we had good reason to believe that he did not follow
through. En route to Capitol Hill, we met with Sandy Berger, the
President's deputy national security adviser. This meeting took place
in April 1996 on a Saturday morning in the White House situation room.
DOE and CIA officials met with Berger and another NSC staff member.
Berger was told of our conclusions about the scope and magnitude of
Chinese nuclear espionage and the DOE lab vulnerabilities that enhanced
the Chinese prospects for success; Berger approved our plans to brief
Congress. There was another briefing, that summer, for the NSC's Robert
Bell; we also met with Vice President Gore's national security adviser
on the same topic. There was little other contact or follow-up with the
White House in 1996. That summer, we completed our obligations to
notify Congress.
Despite a subsequent 1997 meeting with Berger, who had since been
elevated to national security adviser, and a flurry of activity within
the administration intended to finally initiate security reforms at
DOE, nearly three years passed before we visited Capitol Hill again.
Twice in 1998, DOE blocked efforts to transmit information to Congress
regarding new developments in Chinese espionage. The only rationale
offered was that ``Congress only wanted to hurt the president on his
China policy.''
Meanwhile, DOE and the administration studied the issue to death.
Most of the changes that DOE and lab officials are boasting about today
were first proposed in 1996 and 1997, but fiercely resisted by lab
managers and DOE officials. Even a Presidential Decision Directive,
issued in 1998, mandating CI and security reforms met stiff resistance.
More than a year passed before any concrete measures were taken, and
the president's own Foreign Intelligence Advisory Board concluded in
1999 that DOE's response to even this presidential mandate was
``gruding and belated.''
The recent scandals show that the fault line between science and
security within the labs has not been overcome. ``Lab culture'' is
often cited as a serious threat to security, but this is little more
than a convenience excuse for DOE incompetence and management
complicity. In truth, the ``culture'' takes its cues from DOE
headquarters, and in recent years these cues have emphasized
``openness,'' interaction with nuclear scientists from Russia, China,
India, and other sensitive countries, and the presence of such
scientists in large numbers at our national labs (even--indeed
especially--those entrusted with the design of our nuclear warheads).
Another threat arises from DOE's permission of unfettered travel by
our scientists to sensitive countries. The security incidents
associated with such travel are only now becoming known to the public,
but the potential for espionage and the compromise of our most crucial
secrets is staggering. In theirtravels, our scientists have had their
laptop computers searched, briefcases rifled, and telephone
conversations monitored; foreign intelligence services routinely seek
to entrap the scientists. DOE officials and the administration have
simply looked the other way, and have valued continued access to
foreign scientists above security of the risks.
This, then, has been the atmosphere fostered by DOE within our
national labs for much of the 1990s. Arrogance, complacency, disregard
for the simplest counterintelligence safeguards, and a stubborn
disbelief in the continuing existence of foreign intelligence threats
have all combined to make our national labs a ripe target for
espionage. Clearly, Secretary Richardson's reforms and efforts of the
past year have fallen short of his guarantee that our nuclear secrets
are now safe.
The fact is, we have yet to come to grips with espionage at our
labs. These labs will continue to maintain and develop knowledge,
information, and technology that are highly prized by foreign
intelligence services. The attacks will continue, and the cyber
capabilities of China, Russia, and others only compound the threat.
DOE's response to the peril has, thus far, been pitiful. Moreover, a
serious damage assessment has yet to be performed to measure the true
extent of potential future threats. Who in this administration has even
started to think about the implications of a technologically
sophisticated opponent gaining access to hard information on U.S.
warhead vulnerabilities? Undoing the damage to our nuclear-weapons
policy and management will be one of the many challenges confronting
the next administration.
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