-Caveat Lector-
December 8, 2000
Page One Feature
How Federal Agents Bungled The Spy Case Against Lee
By LAURIE P. COHEN and DAVID S. CLOUD
Staff Reporters
THE WALL STREET JOURNAL
In early November 1998, David Kitchen, the head of the Federal
Bureau of Investigation's New Mexico office, got a phone call
from his deputy with bad news from FBI headquarters in
Washington.
The deputy told Mr. Kitchen that top officials in the agency's
national security division "aren't happy with how the Lee case is
progressing."
Mr. Kitchen's baffled response: "What Lee case?"
It wasn't surprising that the name Wen Ho Lee didn't ring any
bells for Mr. Kitchen, who had arrived in Albuquerque three
months earlier. FBI agents had been investigating the Los Alamos
National Laboratory scientist sporadically since 1982, based on
sketchy indications that he might be a spy. But the case was a
black hole, characterized by bursts of activity followed by long
periods of inaction.
In late 1998, however, FBI Director Louis Freeh's top deputies
suddenly decided that the FBI case was a priority and began
pressing Albuquerque to get moving. The reason: The mood in
Washington was changing.
A special congressional committee investigating Chinese espionage
latched onto an unconfirmed report that Dr. Lee had leaked U.S.
nuclear-warhead data to Beijing, and was also delving into why
the scientist's access to classified information hadn't been
revoked. Within months, as more than 100 FBI employees descended
on the bureau's local outpost in Albuquerque, Dr. Lee became the
nation's most-renowned espionage suspect since Ethel and Julius
Rosenberg.
Faced with escalating political pressure, the FBI turned the Lee
case into the costliest computer forensic probe in history.
However, despite puzzling behavior by Dr. Lee -- which included
his downloading data about nuclear weapons onto portable computer
tapes -- no conclusive evidence emerged that the scientist was a
spy. In September, after pleading guilty to a single count of
mishandling classified information, Dr. Lee was released from
the maximum-security prison where he spent eight months in
solitary confinement.
Today, much of the Lee case remains wrapped in mystery, with
heated debate still swirling over whether he was a traitor or the
victim of a race-based witch hunt. But this much is clear: The
FBI bungled its probe so badly the U.S. may never get to the
truth.
Congress is now reviewing the entire sweep of the FBI's
investigation of Dr. Lee. And in ordering Dr. Lee's release, a
federal judge cited the inaccurate testimony, given months
earlier, by the FBI's lead agent on the case, Robert Messemer.
What went wrong?
In interviews, more than a dozen current and former FBI employees
say the bureau's pursuit of Dr. Lee was marked by embarrassing
blunders, personality clashes and vacillation at crucial
junctures. Among the missteps: The FBI allowed a private
security-guard company to perform an initial polygraph test on
the scientist rather than using its own experts; it failed to put
surveillance on Dr. Lee even after it concluded he had flunked a
subsequent polygraph; and an agent spent only two days prepping
for a pivotal interview with Dr. Lee that turned into a
public-relations nightmare for the FBI, even though espionage
interviews usually require weeks of rehearsal.
A Series of 'Mishaps'
"This case probably should have been resolved three years
earlier, and, if the FBI had been doing its job, it probably
would have been," says Ed Curran, an FBI counterintelligence
agent who was detailed to the Department of Energy to beef up the
agency's security in early 1998. "It was just one mishap after
another."
While conceding some mistakes, Neal Gallagher, an assistant FBI
director, defends the agency's overall handling of the case. He
says that, while early on "we could have been far more aggressive
and thorough," once the case became a priority for the FBI in
early 1999, "We did everything we could have done."
Turning Points in the Wen Ho Lee Case
1982: FBI opens first unsuccessful investigation into Dr. Lee
after he is discovered to have phoned another Chinese-American
scientist suspected of spying.
1993: The government alleges Dr. Lee began his illegal
downloading of nuclear-weapons information.
1998: The FBI does an undercover investigation of Dr. Lee and
asks a neighbor for help pursuing him, but comes up dry. Later
that year, the Energy Department and FBI, under pressure from
Congress, begin to investigate Dr. Lee in earnest. Dr. Lee
takes a polygraph and is told he passes.
1999: February: Dr. Lee is given an FBI lie-detector test, which
he fails. He denies to the FBI in a hostile interview that he is
a spy.
Dec. 10: The scientist is arrested and put in solitary
confinement. After a bail hearing in which a federal judge heard
testimony from FBI agent Robert Messemer, the scientist is
ordered detained, without bail, pending trial.
2000 July: After defense lawyers uncover evidence of errors by
Agent Robert Messemer, the Lee case begins to unravel.
August: After the FBI agent admits having made "inadvertent"
mistakes in earlier testimony against Dr. Lee, a plea deal is
reached with Dr. Lee. The scientist is released from prison and
agrees to cooperate with the government.
September: Debriefings of Dr. Lee begin.
December: FBI agents, still uncertain of what Dr. Lee has done
with the missing nuclear-weapons data, continue to look for it in
a Los Alamos landfill where the laboratory's trash is dumped.
The FBI's mild interest in Wen Ho Lee, a 60-year-old scientist
from Taiwan, was first piqued in 1982 when a telephone call he
made to another Chinese-American scientist suspected of espionage
was picked up on a wiretap.
Then in 1994, an FBI informant said that a Chinese scientist
visiting the lab hugged Dr. Lee and thanked him for help with
"codes and software." The still-unexplained incident apparently
strengthened the FBI's conviction that Dr. Lee was the right
target in 1996, when his name topped a list of people suspected
by the DOE of supplying nuclear-weapons secrets to Beijing.
At the FBI's New Mexico outpost in Albuquerque, however, no one
seemed particularly eager to dig deeply into Dr. Lee's
activities. For one thing, Los Alamos, a government lab which is
privately run, was considered by agents to be hostile territory.
Matthew Perez, who ran the FBI operation in New Mexico until
1995, says the FBI had "a tough time" getting access to the lab's
many scientists, who seemed to him more concerned with the free
flow of information than loyalty to the government.
He says, for instance, that lab officials rebuffed him when he
suggested the lab and the FBI work on contingency plans in the
event that hostile agents tried to infiltrate Los Alamos. "They
didn't think of themselves as working for the government," he
says. "Their whole mentality was that if the whole world knew
their nuclear secrets, that would be fine."
Mr. Gallagher says that the relationship between Los Alamos and
the FBI "wasn't as functional as it could have been."
A Los Alamos spokesman says the lab has "always cooperated fully
with the FBI and provided access whenever requested." He adds
that "patriotism runs very strongly" at the lab and its
scientists "do everything possible to protect national secrets."
In late 1996, the FBI wanted permission to search Dr. Lee's
computer to comb through e-mail to prove he was a spy. But
agents were so unfamiliar with procedures at Los Alamos that they
took the word of a lab official who -- erroneously -- told them
he wouldn't be allowed to search Dr. Lee's computer without the
scientist's authorization. The FBI didn't try again for more
than two years.
Today, FBI critics such as Republican Sen. Arlen Specter of
Pennsylvania say an earlier search might have uncovered
more-conclusive evidence of wrongdoing by Dr. Lee. Mr.
Gallagher, who has been the top FBI official overseeing the Lee
case in Washington since November 1999, denies this.
The Lunch Invitation
Some headquarters officials weren't pleased with the sparse
attention paid to the case by Albuquerque, an out-of-the-way
office whose roughly 70 agents tend to handle routine cases, such
as bank robberies. In early 1997, for instance, Craig Schmidt,
the FBI official in Washington then overseeing the investigation,
grew so frustrated with New Mexico's inaction that when the
Albuquerque agent handling the Lee matter at the time proposed
getting together for lunch to discuss the case, Mr. Schmidt
purportedly replied: "I will only have lunch with you to watch
you choke to death on a chicken bone."
Mr. Schmidt declines to comment. The incident is detailed in a
secret Justice Department report, according to congressional
investigators.
For the most part, the FBI's top brass didn't seem especially
bent on driving the case forward, either. In August 1997, the
FBI's request for a wiretap warrant to eavesdrop on Dr. Lee's
phone conversations was rejected by the Justice Department for
lack of "probable cause" that he was a spy. It took another
three months for headquarters to send a teletype to Albuquerque,
outlining a 15-step plan to jump-start the flagging
investigation. Mr. Gallagher attributes much of the delay to
the FBI's unsuccessful appeal of the Justice Department warrant
decision.
Mr. Kitchen, who later took over the FBI's New Mexico operation,
says that after the memo was sent, local agents almost completely
ignored it. He himself says that although he had heard some
brief mention of a possible spy case at Los Alamos early on, he
hadn't bothered to educate himself about the matter. New Mexico
agents acted only on two of Washington's recommendations.
First, in August 1998, they tried to lure Dr. Lee to a meeting
with an FBI agent who posed as an official working for China's
Ministry of State Security. The sting failed when Dr. Lee
declined the meeting.
A Nosy Neighbor
Second, the FBI enlisted Norman Pruvost, Dr. Lee's next-door
neighbor, to watch for signs that Dr. Lee was sending messages
to Chinese satellites. Four years earlier, Mr. Pruvost, who
also worked at the lab, had reported to Los Alamos security
officials that strange noises were coming from one of his home
phones, according to congressional investigators who have seen
the secret Justice Department report. Mr. Pruvost wondered if
the noises might have been produced by signals emanating from Mr.
Lee's nearby television satellite dish. Why Mr. Pruvost raised
the issue isn't clear, and he declined to be interviewed.
In any case, lab security officials passed the tip to the FBI in
Santa Fe. But Mr. Schmidt, the Washington supervisor, advised
the agents not to pursue it, saying Chinese agents didn't use
such methods. Only in 1998, desperate to make a case, did the
FBI turn to Mr. Pruvost, asking him to keep a log of his phone
problems so agents could try to determine if they coincided with
the passage of Chinese satellites overhead. They didn't, and the
FBI ultimately uncovered no evidence of transmissions by Dr. Lee.
By late 1998, "the investigative steps had produced zero," Mr.
Gallagher says.
But at this very moment, for reasons having nothing to do with
the FBI, the Taiwan native suddenly became a cause celebre on
Capitol Hill. A special congressional panel, investigating the
improper transfer of U.S. technology to China, heard about
numerous security breaches at Los Alamos. The allegation put
heat on Energy Secretary Bill Richardson, who was already under
pressure to tighten security at the lab.
On Dec. 18, the panel, led by Republican Rep. Christopher Cox
of California, learned from FBI officials that Dr. Lee, the main
suspect in an alleged transfer of nuclear-warhead technology, was
in Taiwan, unmonitored, at that very moment. What's more, his
access to classified secrets hadn't been revoked.
The Surprise Polygraph
Mr. Curran, the DOE's chief of counterintelligence, was so
worried about how this bombshell would affect the Energy
Department that he came up with the idea that his agency would
conduct a surprise polygraph as soon as Dr. Lee returned. And,
regardless of its outcome, Dr. Lee would be suspended from his
involvement in nuclear programs at the lab. The FBI acceded,
effectively putting the agency in the singular position of taking
its marching orders on an espionage case from the DOE.
"At that point, I no longer had any control over the
investigation," said Mr. Schmidt, the FBI official overseeing the
case in Washington, in a 1999 deposition given to the Senate
Judiciary Committee. "Nor did Albuquerque or anybody else," at
the FBI. Mr. Schmidt made his remarks in a sealed deposition, a
part of which has been reviewed by The Wall Street Journal.
On Dec. 23, Carol Covert, then the FBI's lead agent on the Lee
case, waited in a hallway at the Lab as Wackenhut Inc., on behalf
of the Energy Department, polygraphed Dr. Lee. Hours later,
both Dr. Lee and Ms. Covert were told he had passed the exam.
At this point, the FBI began preparing to shut the case down.
On Jan. 22, Albuquerque sent a message to FBI headquarters
concluding that Dr. Lee wasn't the right target. Ms. Covert
even told the scientist he was no longer a suspect, says a lawyer
for Dr. Lee. Ms. Covert, who now works for the FBI in
Washington, didn't return calls seeking comment.
Little more than a week later, however, the FBI did an
about-face. Feeling uneasy about shutting down the case so
abruptly, Mr. Kitchen had ordered his agents to send the
Wackenhut polygraph to the FBI's experts in Washington, he says.
While Wackenhut concluded that Dr. Lee was "not deceptive" about
whether he had "ever committed espionage," the FBI's experts
disagreed.
Reviewing the same exam, they said Dr. Lee's response was
"inconclusive," at best, and that he probably had failed the
polygraph, according to Mr. Gallagher's testimony before
Congress this year. At this point, officials at headquarters
reasserted control over the case, dispatching Mr. Schmidt to
oversee a new polygraph test for Dr. Lee.
On Feb. 10, Ms. Covert persuaded Dr. Lee to meet her at a Los
Alamos Holiday Inn, on the pretext that the FBI wanted him to
"help us solve a puzzle," says the lawyer for Dr. Lee. There,
Dr. Lee was given an FBI polygraph, which the FBI says he
flunked.
The FBI's suspicions intensified further at the session when Dr.
Lee next admitted that he had helped a Chinese scientist with an
unclassified mathematical equation that could be useful in
nuclear weapons design. Dr. Lee hadn't previously disclosed
this contact -- made during a 1986 trip to China -- as he was
required to do by the lab.
Mr. Schmidt, who has retired from the FBI's national security
division, called the admission "incredible" in his deposition to
the Senate Judiciary Committee. Even so, within hours of
finishing the interrogation, the FBI allowed Dr. Lee to return
to his office unmonitored. There, he deleted files that were
later recovered and became the core of the government's case
against him.
Indeed, for the next two months, the FBI never put its suspected
spy under surveillance, as is typical in espionage cases. Dr.
Lee continued to go to work, though the lab restricted his access
to classified information. An FBI spokesman says the agency felt
it still didn't have enough current evidence of wrongdoing to
again seek Justice Department approval of a wiretap -- or even to
order local agents to tail him.
Not until early March did external pressures again force the FBI
into action.
On March 4, the bureau learned the New York Times was preparing a
major expose about the FBI's investigation of a Los Alamos
scientist suspected of giving weapons secrets to the Chinese.
At FBI headquarters, officials were concerned that media reports
about Dr. Lee would prompt him to get legal counsel, eliminating
the FBI's opportunity to interview him again. Although the story
was ready on March 5, the newspaper withheld it a day, Mr.
Gallagher says, so agents could interview Dr. Lee and get consent
to search his office. A New York Times spokeswoman says the
newspaper delayed publication because "we were told that there
was a national-security interest and that we might be responsible
for their case collapsing."
When the Times story came out on March 6, it didn't name Dr.
Lee. But because FBI officials assumed it was only a matter of
days before the media would reveal his identity, it rushed to
prepare Ms. Covert for what her boss, Mr. Kitchen, describes as
a "confrontational" interview.
While such interrogations usually require agents to prepare for
weeks, Ms. Covert, a former employee of International Business
Machines Corp. and an expert in computer crimes, only got a
two-day crash course in spy-case tactics. In a transcript of the
taped interview, Ms. Covert referred to the Rosenbergs, the Cold
War-era spies, telling him they "are the only people that never
cooperated in an espionage case." She added: "What happened to
them? They electrocuted them, Wen Ho."
The interview ultimately proved a debacle. Not only didn't Dr.
Lee budge an inch, but the transcript created a public-relations
nightmare for the FBI when it was released. Coming at a time
when critics were already accusing the agency of targeting Dr.
Lee because of his ethnic heritage, the transcripts reinforced an
image of FBI hamhandedness.
Mr. Gallagher now says that Ms. Covert went "too far" in her
interview; he denies, however, that Dr. Lee became a suspect
because of his ethnicity.
At about that same time, FBI agents and lab officials were
searching Dr. Lee's office and made their first breakthrough.
A notebook found in the office contained a list of computer files
that appeared to contain classified information, but which were
no longer to be found on his computers. On March 8, Dr. Lee was
fired. Mr. Richardson says it was "strictly a coincidence" that
the firing came in the wake of a media report.
When these files were later reconstructed by the lab and the FBI,
it emerged that Dr. Lee had transferred classified information
-- a vast library of U.S. nuclear-warhead test data -- into the
unclassified portion of the Los Alamos computer system. With
hard evidence of wrongdoing at last, the FBI went into overdrive.
Fifty-Member Surveillance Crew
More than 60 agents with experience in computer forensics and
counterintelligence descended on New Mexico. A 50-member
surveillance crew also showed up to watch Dr. Lee and his family
round the clock for the next nine months.
Even so, the case seemed surprisingly rudderless. Ms. Covert
called in sick a week after the hostile interview and stayed out
for weeks, Mr. Kitchen says, forcing him to assign yet another
agent to lead the case. But this agent had experience in neither
counterintelligence nor computer forensics. He hadn't even been
part of the Lee team.
Into this leadership vacuum stepped Robert Messemer. A
44-year-old China counterintelligence specialist in the FBI's Los
Angeles office, Mr. Messemer joined the FBI in 1983, after a
stint selling General Electric Corp.'s lighting equipment.
After the FBI trained him to speak Chinese, it sent him to
Chicago and, in the mid-1990s, to Hong Kong, where he was the
agency's assistant Hong Kong legal attache. He was later named
the FBI's first Beijing-based attache, though the position fell
through when Congress didn't fund it.
Because of his knowledge of Chinese spy craft, Washington
dispatched Mr.
Messemer to Albuquerque. After arriving there in early April,
Mr. Messemer began declaring to his colleagues that the case was
a mess, Mr. Kitchen and others who worked with him say. He
complained that agents' interview notes were incomplete or hadn't
been reviewed, and that basic tasks, such as fingerprinting
objects in Mr. Lee's office, hadn't been completed.
Mr. Messemer sprang into action, developing a detailed plan for
the case. He conducted dozens of interviews with Dr. Lee's
neighbors and colleagues and he spearheaded a check of every
storage locker, safe deposit and mail drop box in New Mexico in
search of computer tapes onto which the FBI believed Dr. Lee
transferred classified data.
The Niece Gets a Visit
On June 9, Mr. Messemer also directed more than a dozen FBI
agents to fan out across the country, where they descended on Dr.
Lee's relatives all at once. Mr. Messemer personally went to the
home of Dr. Lee's niece, Lori Lee Janey, in Bloomington, Minn.
Ms. Janey had lived with Dr. Lee and his family in the early
1990s and viewed Dr. Lee as a surrogate father. Mr. Messemer
grilled her for more than six hours that day, demanding to know
if her uncle was a spy. When he left, Ms. Janey phoned a Lee
family lawyer, saying she feared the FBI man had misunderstood
her. After viewing Mr. Messemer's memo of the interview, the
defense lawyer complained to prosecutors that it contained
numerous errors. Mr. Messemer's attorney, Michael Bromwich,
says his client denies his notes or memos based on interviews
with "adversarial" witnesses were inaccurate. Still, disputes
over Mr. Messemer's accuracy would later have more-serious
consequences for the government's case.
On Dec. 10, Dr. Lee was indicted on 59 counts related to
improperly tampering with and acquiring classified
nuclear-weapons information. The government demanded that he be
held in solitary confinement.
Prosecutor Robert Gorence made Mr. Messemer the government's
chief witness at a bail hearing intended to determine whether Dr.
Lee would have to remain in prison while the scientist awaited
trial. Mr. Messemer steeped himself in the 12,000-page Lee file,
distilling key points into a single memo, which Mr. Gorence
reviewed.
At the December 1999 bail hearing, Mr. Messemer painted a
picture of a suspect prone to deceptiveness. For instance, he
testified that Dr. Lee previously had asked a colleague if he
could use his password to download a "resume." But Dr. Lee, Mr.
Messmer claimed, really wanted to transfer classified
information.
A Grave Threat?
U.S. District Judge James Parker, convinced that Dr. Lee was a
grave threat to national security, ordered Dr. Lee held without
bail in solitary. Shortly thereafter, the FBI gave Mr. Messmer
a promotion and pay raise.
But by July of this year, the case was unraveling.
In preparing their defense, Dr. Lee's lawyers received Mr.
Messemer's notes and memos of interviews, and discovered what
they believed to be inaccuracies designed to make their client
look bad. For instance, nowhere in the paperwork was there any
mention of a "resume." In fact, Dr. Lee had asked his former
colleague to use the password to download "files," just as Mr.
Messemer's own notes said. At the time, nobody noticed the
mistake, which made Dr. Lee appear more devious.
By the time of a new bond hearing on Aug. 17, defense lawyers
had managed to raise serious doubts about Mr. Messemer's
credibility, and Judge Parker agreed. "The most startling
incident of deception" alleged by the government "has now been
shown to be groundless," said the judge, referring to Mr.
Messemer's testimony about the resume.
Within weeks, the scientist was released after pleading guilty to
a single count in exchange for his cooperation with prosecutors
and the FBI.
It still isn't clear whether Mr. Messemer deliberately
embellished or made "inadvertent mistakes" as he told Judge
Parker. Also in dispute is how great a role his errors played in
causing the government's case to implode. Dr. Lee's lawyers
made Mr. Messemer's credibility a centerpiece of their argument
for why their client should be released from prison. Even Mr.
Freeh, the FBI director, testified before a Senate committee that
Mr. Messemer's mistakes affected his "credibility and thereby
damaged the prosecution" of Dr. Lee. Michael Bromwich, Mr.
Messemer's attorney, says his client did nothing wrong and has
become "a convenient scapegoat" for other problems.
The official line from the Justice Department is that the plea
deal was struck for fear that classified information would be
released at trial and because a deal would be the fastest way to
determine what happened to the missing tapes.
As the first anniversary of Dr. Lee's arrest approaches this
Sunday, the case remains in limbo, with the charges settled but
the facts maddeningly unresolved. Washington still doesn't know
if the Chinese government has obtained U.S. nuclear-weapon
secrets. Mr. Messemer is the subject of an internal FBI
investigation into his professional conduct, but is still helping
out on the case.
Dr. Lee, unemployed since March of last year, has signed
contracts to tell his story in a book and a TV miniseries. In
keeping with his plea agreement, he has given FBI agents tips on
where his missing tapes might be. Recently, more than a dozen
FBI employees were spotted digging through a frozen landfill in
New Mexico.
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Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
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