U.S. Blunders Undermined Lee Case

Walter Pincus and David A. Vise - Washington Post - September 24, 2000

On the top floor of the Justice Department, behind a locked door in a windowless conference room, FBI Director Louis J. Freeh argued that it was time for the government to cut a deal with Wen Ho Lee.

It was Sept. 5, the day after the long Labor Day weekend, and everyone seated around the table had cause for concern, according to participants. Attorney General Janet Reno came with a list of about nine questions, including the potential damage to the government's case from an FBI agent's inaccurate testimony. Prosecutors from Albuquerque were worried that the trial judge was leaning against them and might require them to disclose nuclear secrets in open court.

Freeh wanted to head off courtroom disclosure of FBI internal memos critical of the lead agent on the case, memos that still have not been made public. The FBI director also feared that, even if the government won a conviction, it might never learn why the Los Alamos physicist had transferred nuclear secrets to computer tapes, seven of which were missing.

"What I care about more than punishing this guy," Freeh declared, "is finding out where those tapes are."

Since months earlier Freeh had been one of the original advocates of an aggressive prosecution of Lee, his words had a profound impact on Reno and others at the meeting. Five days later, the attorney general, Freeh and federal prosecutors in New Mexico unanimously blessed a plea bargain that set Lee free in exchange for a guilty plea to a single felony count and a requirement that he explain, under oath, why he made the tapes and exactly what he did with them.

After months of arguing that Lee should not even be released on bail, the government's turnaround seemed sudden and unexplained. "It's very difficult to reconcile the two positions, that one day he's a terrible risk to the national security, and the next day, they're making a plea agreement for an offense far more modest than what had been alleged," President Clinton said after Lee's release.

By the time Freeh urged prosecutors to make a deal, however, the government's case was in far deeper trouble than senior officials have ever acknowledged. Beginning with what some lawyers now view as a fundamental miscalculation--charging Lee with intent to harm the nation's security, when his motives remain cloudy to this day--prosecutors made a series of tactical missteps that alienated the judge and undermined the government's key arguments.

The prosecution may go down in history as a failure by federal authorities to balance the rights of a frail, 60-year-old scientist against national security, pressure from Capitol Hill and key officials' own political ambitions.

This week, Congress will begin hearings on the case. Reno and Freeh have ordered internal investigations to determine whether prosecutors or FBI agents bungled their responsibilities. Asian American groups have demanded an inquiry and asked Clinton to pardon Lee.

FBI spokesman John Collingwood says the FBI and prosecutors remain convinced that Lee committed an egregious security breach and that if they had gone to trial, they would have won. But lawyers and officials connected with the case reluctantly acknowledged in interviews last week that the prosecution had made telling blunders and was suffering the consequences in court:

  • Even though there was no evidence of espionage, Reno, Freeh and Energy Secretary Bill Richardson approved bringing felony charges under the Atomic Energy Act that required prosecutors to prove Lee acted with intent to harm the United States and to aid a foreign power.

  • After persuading U.S. District Judge James A. Parker to hold Lee without bail, prosecutors ignored the judge's entreaties to soften the conditions of Lee's incarceration, earning the judge's ire.

  • Less than a month after Lee's indictment, U.S. Attorney John J. Kelly, a college classmate and longtime friend of Clinton, resigned to run for Congress. A few months later, the lead prosecutor changed when Robert J. Gorence was removed from the case because of a personal indiscretion.

  • Gorence's successor altered the prosecution's basic theory of the case, arguing that Lee's motive for making the tapes might have been to impress prospective employers in Taiwan, Australia, France, Germany, Hong Kong, Singapore or Switzerland, rather than to help China's nuclear weapons program.

  • The FBI's lead investigator conceded that key testimony he gave at Lee's first bail hearing about the scientist's "deceptive" behavior had been inaccurate, raising the judge's hackles and making senior officials worry about the damage that might result if internal memos about the agent's conduct came out in court.

  • Prosecutors were blindsided when the defense came up with expert witnesses who questioned the secrecy and importance of the information Lee had downloaded onto tapes.

  • After a string of adverse rulings by the judge, prosecutors were afraid that Parker would be swayed by the defense's ingenious argument that the data downloaded by Lee contained significant flaws and would not be much help to a foreign power. Officials all the way up the line to Reno worried that the judge would allow Lee's lawyers to introduce the classified data in open court, forcing the government to choose between revealing national secrets and abandoning the case.

Intense Political Pressure

On the chilly morning in March 1999 when Energy Secretary Richardson directed the University of California to fire Wen Ho Lee from Los Alamos National Laboratory, where Lee had worked for nearly 20 years, the FBI's three-year investigation into suspected espionage at the nuclear weapons lab was winding down.

The FBI had found no evidence that Lee, or anyone else at Los Alamos, had passed secrets to China. But Richardson, a former congressman from New Mexico with vice presidential aspirations, was under intense political pressure to tighten security and make an example of Lee.

A House select committee chaired by Rep. Christopher Cox (R-Calif.) had written a dire report on Chinese nuclear spying, and congressional Republicans accused the Clinton administration of dragging its feet. The ranking Democrat on Cox's committee, Rep. Norman D. Dicks (Wash.), had gone to Richardson's office to warn him privately that the allegations were serious and that as secretary of energy he had to act.

The grounds for Lee's dismissal were a series of minor security breaches, including his failure to report fully on his contacts with Chinese scientists. Then, a week after his firing, FBI agents and lab security officers searched Lee's office computers and discovered that he had downloaded 806 megabytes of classified information--the equivalent of 430,000 pages--from Los Alamos's secure computer network to an unsecure desktop and portable tapes.

Energy officials, FBI agents and federal prosecutors saw the massive downloads as confirming all their worst fears about Lee's "deceptive" behavior, which they had tracked in the long but inconclusive espionage probe, code-named "Kindred Spirit."

But even then, prosecutors were left wrestling with the question of exactly what law Lee might have violated. No government employee, at that point, had ever been criminally charged for transferring data from a classified to an unclassified computer.

Kelly, the U.S. attorney in New Mexico, put Gorence, a tenacious prosecutor and the son-in-law of Sen. Pete V. Domenici (R-N.M.), in charge of the downloading case, code-named "Sea Change." In a key memo in May, Gorence and his colleagues recommended that Lee be the first person ever charged with mishandling nuclear secrets under the 1954 Atomic Energy Act, which carried a possible sentence of life imprisonment.

As the prosecutors saw it, the 1954 law "fit like a glove" because it was written in the McCarthy era specifically to cover cases in which government insiders exposed nuclear secrets but there was no proof of espionage.

To convict Lee under the Atomic Energy Act would require the government to show that he acted "with intent to injure the United States or . . . to secure an advantage to any foreign nation." But the U.S. attorney's office felt it could meet that burden because the law defines "injury" as any action that denies the U.S. government "exclusive use" of classified nuclear information. Thus, taking the information for any unofficial purpose--whether to give to China, or to help get a new job at a university, or even for a private archive--legally could be considered injuring the nation.

The prosecutors could not proceed, however, until the Department of Energy reviewed all of Lee's downloads and determined how much of the secret information could be made public in court without damaging national security. That took all summer and continued into the fall.

Finally, Kelly and Gorence took seven copies of a detailed prosecution memo to Washington in early November. Their aggressive recommendations prompted Reno to summon John C. Browne, the director of Los Alamos, and Stephen M. Younger, the lab's chief nuclear weapons official. The attorney general wanted to make doubly sure that Lee's downloads really did represent a major threat to national security. Both officials assured her that they did.

"We wouldn't have [sought the indictment] if we thought it would come down to a battle of experts," said one government official. "It always hinged on the value of the information."

In hindsight, some government lawyers wonder whether they looked hard enough for dissenters at the lab and in the scientific community. "Going straight to the lab's top brass was kind of a tactical blunder, in my opinion," said John Richter, a veteran nuclear weapons designer who dealt a severe blow to the government's case by testifying at a bail hearing in August that 99 percent of the information Lee downloaded was available in open literature.

A Serious Blow

The decision to prosecute Lee was made at a meeting in Reno's conference room shortly before Thanksgiving. Despite lingering questions about Lee's motives, according to participants, there was unanimity among the federal prosecutors from New Mexico and their superiors in Washington that the government should bring a massive, 59-count indictment against Lee using the Atomic Energy Act. Indeed, officials in Washington had decided to charge Lee with intent to injure U.S. national security and (not "or") to aid a foreign adversary.

Crossing a final hurdle, Reno called a meeting of senior national security officials in the White House Situation Room on Dec. 4, 1999, to explain how much classified information prosecutors were prepared to reveal in court. In addition to Reno, Kelly, Freeh and Richardson, those present included national security adviser Samuel R. "Sandy" Berger, CIA Director George J. Tenet and deputy defense secretary John J. Hamre.

Robert D. Walpole, the national intelligence officer for strategic and nuclear programs, began the meeting with a formal assessment that loss of the data downloaded by Lee would be a serious blow to national security.

The meeting ended after Reno offered her assurance that prosecutors were prepared to drop the case immediately if the judge were to grant a motion, sure to come from the defense, that the data downloaded by Lee had to be introduced, in full, in open court.

Six days after the meeting, Lee was indicted and arrested on 39 counts of violating the Atomic Energy Act and 20 counts of unlawfully retaining classified information. The Atomic Energy Act violations, carrying maximum life sentences, enabled Kelly and Gorence to ask for Lee to be held in jail while awaiting trial.

Richardson, as secretary of energy, sent Reno a certification that also enabled the Justice Department to direct jail authorities to keep Lee in solitary confinement, segregated from other inmates through whom he might be able to communicate with the outside world.

Richardson and other senior administration officials contended at the time, and still contend today, that it was necessary to hold Lee without bail because he posed a danger to national security. But some officials also acknowledge that they threw the book at Lee and kept him in solitary confinement to squeeze him into confessing why he had downloaded the data and what he had done with the missing tapes.

"We pushed for solitary confinement to make life as difficult as possible, because if he were sent home, there would not be a lot of incentive for him to come clean," said one senior official, speaking on condition of anonymity.

Lawyers who are not involved in the case have questioned that decision, saying it is unethical to deny bail in an effort to coerce a confession.

"I truly understand the concern that the Justice Department and the intelligence community have over the potential ramifications of the loss of that information," said E. Lawrence Barcella Jr., a former federal prosecutor. "But that is not an excuse for using a law in a way that it wasn't intended to be used, and abusing a defendant's rights along with it."

Judge Denies Bail

After a magistrate initially ordered Lee to be kept in jail, Parker held a three-day bail hearing in late December.

The government called three key witnesses. Richard Krajcik, deputy director of Los Alamos's top-secret X Division, testified that Lee had downloaded the "crown jewels" of America's nuclear weapons program. Paul Robinson, president of Sandia National Laboratories, testified that Lee's downloads could change the global strategic balance, if they were to fall into the wrong hands. And Robert Messemer, the FBI's lead agent, testified that Lee had repeatedly deceived both the FBI and his colleagues at Los Alamos about his computer downloads and his contacts with Chinese weapons scientists.

At one point, according to Messemer, Lee told a colleague that he wanted to borrow some equipment in order to download a "resume" onto a tape. The testimony would come back to haunt the government in August, when Messemer admitted in court that Lee had never said anything about a resume and, in fact, told his colleague that he wanted to download "some files."

Kelly personally summed up the government's case in a lengthy closing argument, calling for "extraordinary measures" to keep Lee in solitary confinement and limit his communications. A few days later, on the heels of the biggest indictment of his career, Kelly resigned to run for Congress.

Parker, meanwhile, denied bail. But the judge was troubled by the harsh conditions of Lee's incarceration and urged prosecutors to consider loosening them. He also urged the government to accept Lee's standing offer to take a polygraph examination on the question of what became of the tapes.

Gorence and other prosecutors ignored Parker's exhortations. Indeed, Gorence has told friends that his "single greatest mistake" in handling the case was not insisting that Lee receive more humane treatment while in custody.

The Santa Fe jail where Lee spent nine months is run by a private, Houston-based firm, the Cornell Companies Inc. A spokesman for Cornell said the Justice Department requested that Lee be placed in the facility's "administrative segregation unit," which is usually reserved for "disruptive or dangerous detainees." Like others in that unit, Lee was required to wear leg shackles during his daily hour of exercise, and a dimmed light was kept burning over the sink in his cell so that he could be watched at all times, said the spokesman, Paul Doucette.

"Because of the high profile nature of the Wen Ho Lee case, Cornell Companies received a special administrative management order (SAM) from the Justice Department prescribing Dr. Lee's conditions of confinement. Those requirements were met," the firm said in a written response to questions from The Washington Post. "During the period of Dr. Lee's confinement, the Justice Department periodically sent changes to the SAM and those changes were implemented immediately," Cornell added.

According to government officials, it was not until May, five months after Lee's arrest, that Richardson requested the jail to allow Lee reading materials, longer exercise periods and more frequent meetings with family members.

By then, defense attorneys were attacking the government's case on multiple fronts. They alleged that Lee had been singled out for investigation and prosecution because he is an Asian American. And they were challenging the legality of a warrant used to search his home in April 1999.

But their most devastating tactic was a form of "graymail," trying to force the government either to reveal classified information in court or to drop the case.

One of Lee's attorneys, John Cline, a "graymail" expert who had helped to defend Oliver L. North in the Iran-contra scandal, first tipped his hand in April, referring obliquely to "flaws" in the downloaded data in a little noticed court filing. In a closed hearing on July 12 in Parker's chambers, defense lawyers fleshed out the argument, contending that much of the data was available to the public and that the tapes contained significant mathematical errors.

On Aug. 1, Parker ruled that the content of the tapes was relevant to Lee's defense, and ordered the government to find a way to describe to a future jury the nuclear secrets that Lee was accused of mishandling.

In early September, Cline filed a brief, under seal, arguing that declassified summaries of the data would not suffice in court, and that the entire contents of the tapes had to be made public so that Lee could show jurors precisely how they were flawed.

By the time Reno and Freeh sat down after Labor Day in the conference room at Justice to review the status of the case, prosecutors were deeply worried that they could not hold off Lee's graymail defense.

The judge had already ordered the government to provide voluminous records in response to Lee's selective-prosecution motion. Parker also had signaled growing skepticism toward the government's case when he held another bail hearing and ordered Lee's release, which the government quickly appealed.

By then, the judge had heard Richter--who was acknowledged even by the government's witnesses as a preeminent nuclear weapons designer--testify that the data Lee copied were not America's "crown jewels" after all. And he had heard Messemer, the FBI agent, admit to providing inaccurate testimony. He apparently did not know--and the government did not want him to find out--that Messemer's supervisor had written a withering critique of the agent's performance to FBI superiors.

By agreeing to the plea bargain, the government quickly secured a conviction, albeit on a single count, and averted the risk that its case might crumble altogether on Sept. 19, when Parker had scheduled a hearing on the question of what classified material could be admitted at trial.

It appears to have been a shrewd choice. The depth of Parker's discontent did not become fully apparent until he spoke from the bench 11 days ago, as he formally sentenced Lee to the time the scientist had already served. "I tell you with great sadness," the judge said in a profuse apology, "that I feel I was led astray last December by the executive branch of our government through its Department of Justice, by its Federal Bureau of Investigation and by its United States attorney for the District of New Mexico, who held the office at that time."

Staff writers Susan Schmidt and Vernon Loeb contributed to this report.

The Lee Trial

March 8, 1999:

Energy Department fires scientist Wen Ho Lee from Los Alamos National Laboratory. He denies having provided secrets to China.

April 10:

FBI agents search Lee's home and remove boxes of material.

May 26:

Congress releases Cox report, which alleges two decades of Chinese espionage at U.S. nuclear weapons labs.

Dec. 10:

A grand jury issues indictment accusing Lee of downloading secrets from a secure Los Alamos computer, and he is arrested.

Dec. 20:

Lee sues the FBI and Justice and Energy departments, saying they wrongly portrayed him as a spy.

Dec. 29:

U.S. Judge James A. Parker denies bail for Lee, citing seven missing computer tapes containing nuclear secrets.

Feb. 29, 2000:

Federal appeals court denies Lee's request for bail, citing missing tapes; Lee's lawyers say tapes were destroyed.

Aug. 17:

FBI agent Robert Messemer admits during bail hearing that he gave false testimony in December.

Aug. 24:

Parker agrees to release Lee on $1 million bail.

Sept. 13:

Lee is set free after pleading guilty to one of 59 counts against him and agreeing to tell the FBI all he knows about the materials he downloaded.

SOURCES: Staff and wire reports, file photos

  • The Wen Ho Lee page