Senator Specter has aggressively pursued this wide-ranging investigation and is now focusing on how the Justice Department, the FBI, the Defense Department, the Navy, and the Energy Department handled the case against Peter Lee. He has raised questions that make it sound as if all of our agencies responsible for protecting our national security were sound asleep at the switch or improperly motivated. Those would be serious allegations to make with profound implications for how our friends – and our enemies – view our nation's response to espionage targeted at our nuclear secrets. Such allegations should not be made lightly. On the other hand, if all this amounts to is second guessing whether a plea agreement on a charge otherwise barred by the statute of limitations should have resulted in jail time it is hardly the first time nor the last that in hindsight someone will criticize someone else's prosecutorial results.
COMPELLING LINE ATTORNEYS TO TESTIFY IS BAD POLICY
At the outset, I want to be clear about my reasons for objecting to Senator Specter's request for, and the Judiciary Committee's approval, on a party-line vote, of subpoenas to two of the witnesses appearing here today. Michael Liebman, a current line attorney at the Department of Justice, and Jonathan Shapiro, a former Assistant U.S. Attorney in Los Angeles, are not and were not supervisory lawyers or political appointees within the Department of Justice. These attorneys were not ultimately responsible for the prosecutorial decisions in the Peter Lee matter, though they certainly helped execute those decisions. To the extent there are factual questions about which Mr. Liebman and Mr. Shapiro could testify, the answers to those questions could and should have been obtained from the Justice Department by other means, whether by written interrogatories, deposition, interviews, closed session or otherwise. This was not done. Mr. Liebman and Mr. Shapiro should not be here today.
I remain concerned about the precedent we are setting in this Committee of subpoenaing line attorneys. Compelling line attorneys to testify publicly before Congressional oversight committees runs the serious risk of chilling the free exchange of opinions within prosecutors offices and making prosecutors look over their shoulders at the politicians as they decide whether to charge a particular person and what charge to bring. We should all be able to agree that politics should play no role in prosecutorial decisions.
As a former prosecutor, I know well that internal discussions, debates, and even disagreements, between and among line prosecutors and supervisors about the course of a prosecution and the merits of a case are invaluable. Line prosecutors should be free to express their candid opinions about a prosecution. Line prosecutors should be insulated from the politics of Washington and left alone to do their jobs. We want Justice Department line attorneys to assess cases candidly without fear that a personal opinion voiced in the context of a prosecutorial back-and-forth will one day become fodder in a political hearing. We want Justice Department line attorneys to make recommendations about charging cases and sentencing positions unencumbered by fear that those same recommendations or decisions will be subjected to public criticism in a congressional hearing. We have seen too much of this and of law enforcement units maneuvering to place blame on each other in recent years.
My concerns are not new nor are they partisan. They have previously been voiced by others, including the Chairman of this Committee, who has said that line attorneys should never be subjected to congressional inquiry, not even in "exceptional" circumstances.
In any event, this matter is not "exceptional" and there has been absolutely no showing of need to subpoena line attorneys in this investigation. To put it in perspective, let me summarize the questions that have prompted this Committee to compel Messrs. Shapiro and Liebman to appear here today.
First, claims have been made that the Department of Justice did not tell Mr. Shapiro, when he was serving as the federal prosecutor in California, that he was authorized to charge Peter Lee with violating the most serious espionage law, 18 U.S.C. Section 794. The premise of these claims is incorrect. At the time of the plea agreement, the federal prosecutor had not been authorized to indict Lee on a § 794 charge. The internal FBI and DOD memoranda relied upon by Senator Specter suggest only that if Lee had refused to accept the plea offer that the Justice Department may then have authorized and brought a § 794 case. Since that contingency never came to pass, there was never any such authorization.
Second, some have complained that the Department of Justice agreed to a plea bargain with Peter Lee before a damage assessment had been completed regarding the information Peter Lee confessed to passing to the Chinese. This is also incorrect. Prior to Lee's plea, Justice Department attorneys had numerous contacts with representatives of both DOD and the Navy. Representatives of DOJ and the FBI met with the agencies and provided a copy of FBI Special Agent Gil Cordova's draft affidavit, which summarized Lee's disclosures. In addition, there were numerous telephone conversations about the issue between the prosecutors and the officials at DOD and the Navy. Accordingly on this too, the criticism overshoots the mark.
To the extent this assertion is a technical claim that no damage assessment had been completed is based on the fact that DOD and Navy officials reviewed only the case agent's affidavit to assess the information Lee disclosed, instead of Lee's own statements, it is immaterial. DOD and Navy officials have now reviewed the transcripts of Lee's confessions and confirmed that they are "substantially consistent" with the affidavit that had been provided in 1997 and that "[t]he statements provided by Peter Lee in the transcripts are consistent with the previous determination that the material he provided to the People's Republic of China was confidential."
Third, Senator Specter says that when the damage assessment was completed, the Navy agreed with the Department of Energy that the information Peter Lee confessed to passing to the Chinese was classified. He misses the point. The Navy has always agreed with the Department of Energy that the information was classified – though healthy and thoughtful internal debate occurred among the agencies over the appropriate level of classification. The point that appears to be overlooked in an effort to show something is amiss at the Justice Department is that the Navy looked at the information Peter Lee confessed to passing and determined that most of it was in the public domain, either at the time he passed it to the Chinese or shortly thereafter. It does not take a former prosecutor to realize that when you are arguing to a jury that classified information turned over to a foreigners could hurt the United States, the jury might not believe you if they also find out that some of the same information was put on a Department of Energy Web site!
To the extent that the information Peter Lee disclosed to the Chinese was not in the public domain, the Navy made clear that focusing on the reasons that this information would harm our national security would not be helpful and in fact "bringing attention to our sensitivity concerning this subject in a public forum could cause more damage to national security than the original disclosure." Memorandum of John G. Schuster, November 14, 1997.
THE FBI'S INVESTIGATION OF PETER LEE HAS BEEN EXTENSIVE
To put these questions in broader context, we should look at the scope and intensity of the investigation into Peter Lee's activities. Peter Lee is a naturalized United States citizen, who worked from October 1976 until 1991, at Lawrence Livermore National Laboratory ("LLNL") as a research physicist. He was cleared to have access to classified information and his work involved research relating to nuclear weapons detonation simulations. From 1991 to 1997, Lee worked at TRW, and was involved in a joint United States/United Kingdom Radar Ocean Imaging Project, which had applications in the area of anti-submarine warfare. While at TRW, Lee maintained a Secret clearance.
The FBI has been investigating Lee since 1991. In February 1994, the FBI, sought and obtained permission to conduct secret electronic surveillance of Lee under the Foreign Intelligence Surveillance Act. This secret surveillance continued for over three years – until September 1997. During the time of this surveillance, Lee, with the knowledge of the FBI, traveled to China and maintained his Secret-level clearance at TRW, which allowed him access to classified materials.
In June 1997, Lee was interviewed by the FBI about a trip he had taken to China a month earlier. Lee falsely told the FBI that he had not engaged in technical scientific discussions in the PRC and that he had paid for his trip. During subsequent interviews, Lee admitted that he had participated in scientific discussions, but maintained that he had paid for his trip and provided the FBI false documentation as "proof." In October, 1997, Lee was given a polygraph examination and his answers were found to be deceptive.
Following the failed polygraph, Lee was interviewed at length by the FBI over the course of two days. During this time, Lee confessed to providing confidential information to the PRC on two separate occasions. First, he admitted that twelve years earlier, in January 1985, he had passed information relating to hohlraums (devices used in the simulation of nuclear detonations) to PRC scientists. Second, Lee admitted that during his May 1997 trip, he had relayed information about the radar ocean imaging project he worked on at TRW and its application to anti-submarine warfare.
THE PROSECUTION OF PETER LEE WAS PROPERLY HANDLED
The case was brought by the FBI to the United States Attorney's Office ("USAO") for the Central District of California for prosecution. Because the case involved espionage, all decisions on the case were coordinated with the Internal Security Section ("ISS") of the Department of Justice and supervisors in that unit were ultimately responsible for all decisions in the case. Jonathan Shapiro, here today, was the line Assistant United States Attorney, assigned the case in California. Michael Liebman, also here today, was the line attorney assigned to the case in the Internal Security Section.
As I believe we will hear in great detail today, federal prosecutors faced considerable hurdles in pursuing criminal charges against Dr. Lee. The case against him was a tough one to make. As I understand it, the primary, if not only, evidence against Lee were his confessions. Despite the confessions made by Lee, this case would have been difficult to make by happenstance beyond the prosecutors' control. Consider the following problems:
Problem 1: The information Lee said he disclosed in 1985 had since been declassified. In 1993, all or virtually all of the information relating to holhraums that Lee disclosed in 1985, was declassified. Now this fact alone would not legally have prevented prosecutors from charging Lee with the 1985 disclosure, but it certainly hurt the jury appeal of their case. A good defense attorney could easily debunk government arguments that Lee's disclosures had been damaging by pointing to the fact that the government itself had declassified the information.
Problem 2: Every appropriate charge relating to the 1985 hohlraum disclosure was barred by the statute of limitations. At the time of Lee's confession in October 1997, his disclosure of the classified holhraum information was over 12 years old. As a legal matter, no charges, except for one based on 18 U.S.C. § 794 could be brought against him because of the expiration of the statute of limitations. Although Lee could have theoretically been indicted for violating § 794, which includes death among its possible penalties, any such charge would have constituted government overreaching – given that the information at issue had since been declassified.
Problem 3: Significant exculpatory information would have undermined a prosecution of Lee for his 1997 disclosure about the radar imaging project. Government officials discovered in the course of assessing Lee's case for prosecution that the same or similar information that Lee said he disclosed in May 1997 was available in the public domain. An internal November 1997 memorandum by John G. Schuster, Jr., then Head of the Science and Technology Branch of the Navy, stated that "[t]he material that was briefed appears to have been extracted from a CONFIDENTIAL document. . . . Given that the CONFIDENTIAL classification cannot be explicitly supported by the classification guides and that material similar to that briefed by the subject has discussed in unclassified briefings and publications, it is difficult to make a case that significant damage has occurred." The memorandum went on to state that "bringing attention to our sensitivity concerning this subject in a public forum could cause more damage to national security than the original disclosure." Prosecutors have described this memorandum as a "body blow" to the 1997 case – not only did it suggest some equivocation as to the classification of the material disclosed, but it also revealed that similar information was available in the public domain.
Problem 4: No expert from the Department of Defense or the Navy was prepared to testify on behalf of the government. As a result of the concerns of the Navy that a prosecution of Lee on the 1997 charges could do more harm than good, the Justice Department did not have the benefit of a Department or Defense or Navy expert to testify about the classification and import of Lee's 1997 disclosure. Although Dr. Richard Twogood, a former program leader at LLNL of the radar imaging program, was available to testify, prosecutors believed that his testimony could have been rebutted by a plethora of experts from the Defense Department and Navy who could have been called by Dr. Lee to testify on his behalf .
In light of these problems, the plea agreement was a victory. Considering the nature of the evidence against Dr. Lee and the formidable obstacles of a trial, the plea agreement negotiated by former AUSA Shapiro, his supervisors at the United States Attorney's Office in Los Angeles and the attorneys at the Department of Justice, is worthy of praise. Under the terms of the agreement, Dr. Lee agreed to cooperate and to plead guilty to two counts: a violation of 18 U.S.C. 793(d) (passing classified information) based on the 1985 disclosure, and a violation of 18 U.S.C. 1001 (making a false statement to a government entity) based on false statements made by him to his employer TRW about his May 1997 trip to the PRC. Both counts were felonies and combined they exposed Lee to a maximum of 15 years in jail. What is remarkable is that the prosecutors convinced Lee to plead guilty to a serious count (the § 793(d) charge) for which the statute of limitations had expired. Instead of second-guessing this plea agreement, we should commend our prosecutors for their hard-nosed perseverance.
Criticism of the prosecutor's position at sentencing is misplaced. Senator Specter has raised questions about why the prosecutor did not push harder for a lengthy prison term for Peter Lee and criticized the fact that he was sentenced to a probationary term rather than sent to jail. I agree with Senator Specter that Peter Lee got a lenient sentence but the prosecutor's role at sentencing is limited. Only the judge sentences; the prosecutor must make sure that the sentencing judge has all the relevant information at hand to make a just decision. In this case, the prosecutor did his job and provided to the court information on Peter Lee's failed polygraphs and deceptive statements to the FBI. Certain information could not be made available and cannot even be discussed today in an open forum due to the sensitivity of that information. Certainly, we can not fault a prosecutor for protecting that sensitive information in the context of a sentencing hearing, where every defendant rightfully has the right to probe information being used against him.
A number of provocative questions have been raised about the handling of the Peter Lee case and to my mind have been answered fully and completely. While many of us – most notably the prosecutors – may be disappointed that Peter Lee's sentence did not include jail time, there has been no showing of any wrongdoing at the FBI, the Justice Department or any other agency with regard to this matter.
