FAS Note: See also Senator Specter's response to the issues raised by Senator Grassley.

WASHINGTON, DC 20510-6275

March 8, 2000

The Honorable Arlen Specter
United States Senate
Washington, D.C. 20510

Dear Senator Specter [overwrite:Arlen]:

I have been privileged to work with you for the past six months on the Task Force on Justice Department Oversight. We agree that, when major issues arise that shake the public's confidence in federal law enforcement, Congress is obliged to help restore that confidence and restore the public trust. In that regard, I look forward to our continued work and relationship in holding the various agencies and departments accountable.

As you well know, investigations such as this one demand credibility and high respect not just from our colleagues, but especially the public. These qualities are expressed when we arrive at consensus and bipartisanship. One recent example is the leadership that you and Senator Torricelli showed in bringing together by consensus all members of the Task Force as co-sponsors of your bill to improve the FISA application process.

The reason I am writing is to express my concerns about the interim report you intend to release regarding the investigation by the Task Force into the case of Mr. Wen Ho Lee. As Chairman of the Subcommittee on Administrative Oversight and the Courts, which is the standing subcommittee of authority for the Task Force, I am compelled to bring these concerns to your attention.

During the draft stages of the report, I asked my staff to evaluate whether the report reflected a consensus among the professional investigators reviewing the case, and whether the report reflected the findings of fact based on the documents reviewed and the interviews conducted.

My staff has had numerous discussions with the investigators for more than two months. The consensus among them is that your report does not reflect the full body of evidence that the Task Force has collected. Nor does it reflect a consensus of members of the Task Force. I would note that, despite numerous attempts to get other signatures on the report, not a single senator signed onto the report. I certainly recognize any senator's right to issue a report as an individual senator. Indeed, that is what you intend to do.

The main concern is that the report was not the product of a consensus-building process. This procedure deviated from the very successful one you employed not just with the FISA legislation, but also the Ruby Ridge investigation in 1995, of which I was a part. In fact, your current report was shared with executive branch agencies before members and members' staffs were asked for comments. Eventually, comments were provided. I provided numerous major points of contention with the report that would have changed the context in a way to more accurately mirror the record as I see it. Few, if any, of these points were taken.

While your staff has a list of my specific concerns with the report, I would call your attention to three main ones. First, there seems to be a consensus among the investigators who are familiar with the case that at best it is unclear if the Attorney General acted improperly when she did not approve a FISA warrant. The consensus seems to be that, at a minimum, it was aclose call.

Your legislation, in fact, is more consistent with that consensus than is your report. The legislation addresses FISA warrant applications in the event of future close calls. That is what we unanimously agree with. Your report, however, asserts that the Attorney General was clearly wrong in denying the application.

Furthermore, there is no mention of the fact that the FBI did not sufficiently protest the denial of the warrant until the past year, when the issue received much public scrutiny. In fact, the FBI's own documents show that the bureau acknowledged that "more homework" had to be done to justify the wanant. In the final analysis, the decision to decline the warrant may have been correct as the FBI in September redirected its investigation into the disclosure of the W-88 data.

A second concern is that the report fails to mention the fact that the FBI ceased to consider Mr. Lee as the prime suspect in the disclosure of the W-88 after it had first targeted him. There is also no mention of the sudden discovery of documents from the FBI that reveal this information, that tend to undermine the FBI's position and shed new light on the FISA rejection. The fact that a senior manager of the FBI is under investigation for his possible role in keeping those documents from Congress and the Attorney General lends even more significance to the failure of your report to mention this matter.

Finally, the Task Force's investigation of the Wen Ho Lee case is severely lacking in that a key figure - perhaps the most key figure - has not even been interviewed: William Lueckenhoff, Assistant Special Agent in Charge, Albuquerque. Mr. Laeckenhoff appears to have played the key role in ending the investigation of Mr. Lee as the provider of the W-88 information. Any interim conclusions drawn without an interview of Mr. Lueckenhoff are premature.

As Chairman of the Subcommittee, I am concerned about the content of the report and its failure to reflect the full record, and about the haste of issuing the report despite an incomplete investigation.. I hoped that you would reconsider releasing the report until all the facts are available to us. Nonetheless, I urge you and all the members of the Task Force to develop a consensus for this report, and to build a process for consensus for the rest of the Task Force's efforts. As you know, I have been and continue to be supportive of your efforts to hold the Justice Department and other agencies accountable.

cc: The Honorable Orrin G. Hatch
The Honorable Patrick J. Leahy
The Honorable Robert Torricelli
The Honorable Jeff Sessions
The Honorable Strom Thurmond
The Honorable Russell D. Feingold
The Honorable Charles E. Schumer