Sunday, September 17, 2000

Searching for a Wen Ho Lee Scapegoat

By Ian Hoffman
Journal Northern Bureau
    SANTA FE — The Wen Ho Lee case leapt to the nation's consciousness with a plot to rival any novel:
    A scientist is accused of stealing secrets to the U.S. nuclear arsenal and the nation's top prosecutor levies charges that could mean life in prison. The scientist is locked in solitary confinement due to fears he will send coded signals ("The fish are biting") to convey the secrets, putting Americans at risk of nuclear threats. But then he walks free, and an apologetic federal judge lambastes the government's handling of the case as an "embarrassment to our entire nation."
    Now, official Washington is in a whirl to pinpoint fault. And there are many players to consider — Congress, the national media, the departments of Justice and Energy.
    The authors of the first chapter of the saga were an Energy Department counterintelligence officer, Notra Trulock, and two reporters for the New York Times.
    Trulock pegged Lee as stealing secrets to a nuclear weapon, and the New York Times broke the story about his investigation.
    That propelled Wen Ho Lee into a political fray with the backdrop of the impeachment proceedings of President Bill Clinton and Congress' search for a Cold War-style adversary to replace the collapsed Soviet Union.
    "This whole case is a product of that inflamed political climate," said Russian studies researcher Priscilla McMillan at Harvard. "In a way, it's one more consequence of the Lewinsky affair."
    At the same time, McMillan said, "There's a thread in America to make an enemy of China as we once had in Russia."
   
Political hay
    Congress quickly took up the Lee case as evidence that security at the national laboratories was weak and called for action and explanations.
    Senate Armed Services chairman John Warner invoked the China-as-villain theme to open one of the first hearings on Lee and alleged nuclear espionage at Los Alamos National Laboratory in April 1999.
    "China," said the Virginia Republican, "...will indeed be America's and the West's natural enemy in the next millennium."
    In 16 months, at least nine committees weighed into the Lee affair and security at the nation's weapons labs. Five Senate committees held 26 hearings, more than Senate lawmakers held on international arms-control agreements such as the Comprehensive Test Ban Treaty.
    "Holy smoke," said Sen. Ben Nighthorse Campbell, R-Colo., "we are talking about the potential loss of every major nuclear secret in the United States, not to say anything of the untold billions of dollars of tax money it took to do that research, but the potential of putting Americans in danger at some future point."
    Sen. Frank Murkowski, R-Alaska, was enraged in May 1999, two months after The New York Times named Lee as the suspected thief of the W88 warhead and he was subsequently fired from Los Alamos National Laboratory.
    "Why did Los Alamos wait until apparently, or perhaps coincidentally, the New York Times articles were first published to fire Mr. Lee?" Murkowski demanded. "I just do not understand how we got to 1999 with so little action taken on this case, at least, again, until the New York Times articles were published."
    Fifteen months later, prosecutors agreed to let Lee walk on a single, low-level felony. He can travel to China if he wants, though he faces hours and hours of questions under oath from the FBI. Tops on the list: Why did he copy numerical descriptions of U.S. nuclear weapons to portable tapes, along with software to simulate their detonations?
    Prosecutors now seem to accept Lee's sworn statement that he disposed of the tapes, never handed their contents to anyone unauthorized and never intended to. They insisted Lee promise not to sue them for "frivolous" or improper prosecution.
    And Pennsylvania Republican Arlen Specter opens hearings in two weeks on the reasons the government treated Lee so harshly.
    Yet last year, Specter demanded Attorney General Janet Reno resign for her failure to pursue the Lee case aggressively. At the time, Specter declared Reno's inability to find probable cause for FBI phone surveillance of a U.S. citizen "inexplicable," and he authored a bill making such wiretaps easier to get.
    Steven Aftergood, a government secrecy expert for the Federation of American Scientists, says Specter's role "in propelling this case is getting obscured."
    "All of the signals coming from Congress were that the Clinton administration appears to be too soft on Chinese espionage," Aftergood said. "I think that cannot help but have an unconscious effect on the Justice Department ... on an unconscious level the message they received was 'You better nail this down.' ''
    Sen. Jeff Bingaman, D-N.M., tried in vain to calm his colleagues to a more rational debate.
    "Congress has shown in this case, as in previous cases, a willingness to fan the flames of any problem area that arises to try to make political hay out of it. And that clearly was happening here," said Bingaman, a former state attorney general. "I guess we can all learn that our judicial system is supposed to presume innocence until guilt is proven."
    New Mexico's Republican Sen. Pete Domenici was among numerous Republicans and some Democrats who lashed out at the executive branch in the early days of the Lee saga. At a May 1999 Senate hearing, Domenici portrayed the government's investigation as a "tragedy of errors."
    Asked last week if congressional Republicans are partly responsible for the government's rush to judgment against Lee, Domenici replied: "Hogwash."
    "I think it is an absolute absurdity to say that Congress, reacting to various reports and investigations, had anything to do with the mistreatment of Wen Ho Lee," he said.
   
The players
    However, there is much soul searching over the collapse of the Lee case.
    U.S. District Judge James Parker, in accepting the plea agreement, apologized to Lee for "the unfair manner in which you were held in custody by the executive branch."
    "What I believe remains unanswered is the question: What was the government's motive in insisting in 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?" he said.
    In fact, many groups and individuals were involved since the case first became public last year:
    * Trulock, embraced by Congress and the New York Times as a whistleblower, had worked one year in DOE counterintelligence when he began the analysis that pointed to Los Alamos and Lee as the source of the supposedly stolen W88 secrets, according to former Los Alamos counterintelligence chief Robert Vrooman.
    Trulock repeatedly told colleagues that there were too many foreign nationals working at the nuclear-weapons labs, and especially too many Asian-Americans in Los Alamos' X Division, where weapons are designed. The combination led Trulock to narrow his suspect list to a dozen X Division scientists, half of them Asian, then hone in on Lee.
    "He was not experienced in the job and this was the result," Vrooman said. "There was a lack of really rigorous thinking, then stopping when they came to Lee. It was just a subjective thing where the investigators accepted the conventional wisdom that the Chinese would only recruit an ethnic Chinese."
    * The media has come under fire for its role. New York Times reporters James Risen and Jeff Gerth first reported on Trulock's investigation fingering Lee.
    "The Times helped to validate the most extreme version of the events, thereby opening the door for overcharging," said Aftergood. "... They simply said this data was transferred, Wen Ho Lee did it and the Chinese nuclear weapons program leaped forward as a result — none of which seems to be true in retrospect."
    The Times has vigorously defended its Risen-Gerth coverage. "What is clear is that Gerth and Risen accurately described what investigators knew and what they were speculating" at the time, wrote Times investigations editor Stephen Engelberg.
    Other media followed the Times' lead for weeks, and Congress obliged by filling pages and airwaves with accusations.
    "No question the media made this into a cause celebré," said Bingaman. "One reason that the Congress had so many hearings on the subject was the press had shown up and brought all the cameras. If the cameras had stopped showing up, I guarantee you Congress wouldn't have had the hearings."
    * At the time, the Energy Department, which oversees the national laboratories, was being criticized for lax security. Energy Secretary Bill Richardson awarded $10,000 to Trulock for his work, and he allowed Trulock's questionable testimony in Congress to push former deputy secretary Elizabeth Moler out of the government.
    "I've decided to put that behind me," said Moler, now working for an energy utility. "I'm sort of bitter about it."
    * As the case continued, Los Alamos, Sandia and Lawrence Livermore national laboratories, and the rest of the U.S. scientific community, kept a low profile.
    They knew some conclusions in Rep. Christopher Cox's committee on Chinese nuclear espionage were either wrong or speculative. They failed to step forward until months later, after the Lee prosecution was under way.
    "It was so much detail but so much B.S. really. It basically said everything was lost. And that report was very highly praised in Congress and in the media," said Sandia engineer William N. Sullivan, who had worked on the W88 warhead. "I just thought it was an outrage. As a lab employee, I was deeply offended, but the labs offered no defense to it at all. I think that really hurt, a big report like that going unchallenged."
    When Justice Department prosecutors sought expert knowledge on the nuclear-weapons data that Lee downloaded to portable tapes, LANL scientists again kept a low profile. Experts for the defense said 99 percent of the data was already published and posed little or no risk to U.S. national security. Prosecutors hadn't heard that when they decided to seek an indictment against Lee.
   
Prosecution problems
    Meanwhile, federal rules require prosecutors in national security cases to weigh the risk of having to expose classified information in their case against the value of the case.
    But Parker ruled that Lee was entitled to use vast amounts of classified information — potentially all he downloaded, plus more sensitive information likely to include a blueprint of a U.S. nuclear weapon — in open court to mount his defense.
    And prosecutors from Reno down cited the risk of losing that classified information as a reason for agreeing to Lee's plea to a single, low-level felony out of 59 original counts.
    The Justice Department also lost ground when it lost its lead prosecutor in the Lee case. Assistant U.S. Attorney Bob Gorence was a skilled trial lawyer who had immersed himself in nuclear-weapons science and knew the case thoroughly. But he was removed, leaving a gap in experience.
    A major blow occurred late in the case when FBI case agent Robert Messemer was forced to recant four key points of testimony that had suggested Lee was deceptive and actively applied for jobs abroad.
   
More politics?
    New Mexico's Bingaman worries the looming congressional investigation will become mired in political posturing, as in the spring of 1999.
    "I have no problem with somebody trying to do an objective investigation," Bingaman said. "But unfortunately most of the investigations done by Congress in recent years have not been objective. They have been highly partisan and intended to serve some political purpose."
    Domenici on Wednesday felt the same — no more blazing spotlights on Los Alamos. But he changed his mind Thursday.
    "We ought to look at it," Domenici said. "Right now we are kind of in the dark."
    Journal staff writer Michael Coleman contributed to this story.