-Caveat Lector-
Spy hunters hit peaks and valleys searching for thief of U.S.
secrets
BY DAN STOBER
San Jose Mercury News
Sunday Dec. 17, 2000
1996
W-88 investigation
On May 28, 1996, the FBI received a report from the Energy
Department that identified a nuclear scientist at Los Alamos, Wen
Ho Lee, as the chief suspect in the apparent theft of the design
of the nation's most advanced nuclear warhead, the W-88. Two
days later, the FBI opened its third investigation of Lee in 14
years.
The belief that China had acquired the design of the W-88 through
espionage was bolstered by another source: documents that a
``walk-in'' Chinese defector had brought to the CIA. The
documents contained charts and diagrams describing several
Chinese and U.S. nuclear warheads, including the W-88.
Rather than start from scratch, the FBI decided to pick up the
Energy Department report and run with it. It was taken for
granted that espionage had occurred, that the leak was from Los
Alamos, and that Wen Ho Lee and his wife, Sylvia Lee, were the
suspects.
The bureau's experience with Lee -- investigating a call he made
in 1982 to a suspected spy, and his warm greeting from one of
China's top weapons scientists in 1994 -- made it easier for the
bureau to accept the Energy Department's findings, Attorney
General Janet Reno and FBI Director Louis Freeh said four years
later. But doing so was a mistake, they added.
``Clearly, the FBI should have conducted an additional,
independent investigation to verify what was reflected in the
administrative inquiry,'' Reno told a Senate committee three
months ago.
Dan Bruno, who conducted the Energy Department inquiry, said he
was astounded that ``the most prestigious law-enforcement
organization on Earth'' would claim to have based a major
espionage investigation on nothing more than his ``cursory''
report.
The FBI investigation was half-hearted, according to Los Alamos'
chief of counterintelligence, Bob Vrooman, and others. No agent
was assigned full time. The FBI has never explained its
lackadaisical approach other than to say it was a mistake.
One consequence of the FBI's accepting the Energy Department's
findings was that the bureau did not explore the wide
distribution of W-88 data in the military and among defense
contractors such as Lockheed Missiles & Space, which built the
Trident missile that carries the warhead. The walk-in defector
from China, for example, was a missile expert, not a bomb
scientist.
Thousands of people had access to the W-88 information. FBI
agents also did not investigate everyone on the long and short
lists of suspects the Energy Department had compiled in which the
Lees emerged as the top suspects.
What about a pro-China Maoist who was on the short list, for
example? Reno noted in congressional testimony that the scientist
had traveled to Beijing, like Lee, had access to W-88
information, like Lee, but had not been investigated.
In this investigation, however, agents did decide for the first
time to look at Lee's Los Alamos computer.
Thus began a series of miscommunications and mistakes by and
between the lead FBI agent and a Los Alamos counterintelligence
official. Were they discussing e-mail or computer files? Did
the FBI want a one-time search or continuous monitoring? The Los
Alamos official failed to learn that Lee had signed a privacy
waiver. The FBI agent didn't keep FBI headquarters fully
informed, which perpetuated the confusion and derailed the bid to
search Lee's computer.
Meanwhile, Lee's illegal downloading in 1993 and 1994 remained a
secret.
1997
FBI moves slowly
In February 1997, a new lead agent was assigned to jump-start the
investigation. The FBI also finally decided to seek court
permission for electronic surveillance of Lee's home and
telephones.
But Justice Department lawyers refused to submit the FBI request
for a search warrant to a special court in Washington, saying it
lacked sufficient evidence.
The request also lacked a significant disclosure: that Sylvia
Lee's allegedly suspicious behavior had been encouraged, approved
and monitored by the FBI, the CIA and the Los Alamos lab, for
whom she was an informant.
Up to that point, the FBI had asked that Wen Ho Lee's job
assignment not change significantly. Agents worried that doing
so would alert him to their investigation. When the warrant fell
through, however, Freeh changed his mind. In August he told
Energy Department officials that as far as the FBI was concerned,
Lee could now be moved to a less sensitive post, away from
weapons secrets. In October, he said it again.
But through another remarkable series of missteps -- by Los
Alamos, the Energy Department and the FBI -- Lee remained in the
top-secret X Division.
1998
Dead ends, then action
In 1998, the FBI tried another approach to try to trap Lee, a
``false flag.'' Posing as a Chinese official, a Chinese-American
FBI agent phoned Lee to arrange a meeting. Lee turned him down.
Agents also went down another dead end. A neighbor of Lee's
complained of strange, intermittent noises on his telephone.
The FBI first thought Lee might be sending secret messages to an
overhead Chinese satellite, but eventually ruled that out.
On Dec. 16, 1998, Edward Curran, who had recently become the
Energy Department's chief spy catcher, learned to his surprise
that Lee still had access to weapons data; he thought Lee had
been moved away from any sensitive work long ago.
Curran, who had come aboard just a few months earlier, was
worried. No action had been taken against Lee after the false
flag approach, even though the failed gambit might have tipped
Lee to the investigation. On top of that, Lee was off on a trip
to Taiwan.
``It's unheard of, once you've false-flagged someone, to let him
leave the country,'' Curran said.
Curran told Energy Secretary Bill Richardson, who also had only
just joined the department, ``The guy's overseas, I don't know
where he is, he could be in the PRC,'' referring to the People's
Republic of China.
Curran decided to act. When Lee returned he undergo a polygraph
test and lose his access to X Division and its computers for 30
days.
On Dec. 23, Lee went in for the lie-detector test. In
questioning before the test began, Lee revealed for the first
time that a Chinese weapons scientist had asked him for
classified data in his hotel room, during a 1988 visit to
Beijing, but that he had not cooperated.
The news of the espionage approach was alarming. Although an
agent was in the hall nearby, it would be three weeks before the
FBI finally interviewed Lee.
The polygraph ended at 2:18 p.m. At about 5 p.m., Lee was told
his access to X Division had been suspended. Hours later, he
began a pattern of behavior that only heaped more suspicion on
himself.
At 9:36 p.m. he tried to get into X Division through a
stairwell, swiping his ID card in an automated door lock four
times. Then he tried an elevator and failed. At 3:31 a.m., he
again tried the stairwell. No luck.
1999
Case heats up, cools off
Jan. 4, 1999, was Lee's first day in his new office in Los
Alamos's theoretical division. That night, he found a simple way
to regain his access to the unclassified area of the X Division
computer system. He merely contacted the lab's computer help
desk and had his access restored. No one had told the help desk
that Lee was locked out for security reasons.
It would be four weeks before the mistake was discovered.
Meanwhile, Lee was back in the network. He began deleting files,
including copies of those he had downloaded to tapes years
earlier.
Over the next few weeks, Lee deleted hundred of files. But no
one noticed. Not even when he asked the help desk Jan. 21 why
files he was deleting were not ``going away.''
Lee also continued trying to get into X Division -- 31 attempts
in all. He succeeded at least twice: once by phoning a friend who
let him in, and once by ``tailgating'' behind another worker who
had opened a secure door. Once inside, he went to his old
office, grabbed data tapes full of weapons information and threw
them into a dumpster outside, he would later tell the FBI.
His actions went undetected.
By this time -- January 1999 -- the classified version of the Cox
Report was circulating in government circles, including the FBI
and Energy Department. A committee headed by Rep. Christopher
Cox, R-Newport Beach, had looked at Chinese campaign donations to
the Democratic Party, then at illegal transfers of sensitive U.S.
technology to China.
Committee staffers were already writing the final report in late
1999 when they heard about another Chinese issue: the loss of the
W-88. In two closed-door hearings, Notra Trulock, who at the time
directed counterintelligence for the Energy Department, was the
star witness. The report was quickly rewritten.
And so the report contained startling findings that the W-88 and
several other warheads had been compromised, that security at the
nuclear labs was a disaster, that the Chinese were stealing
secrets almost at will.
Those who read the classified edition could sense where things
were leading. The final report would be released into a
political environment poisoned by the Clinton impeachment battle
and partisan feuding. It would be fuel for Republicans to attack
the administration over security lapses and portray China as an
aggressive communist threat to the United States.
The FBI, meanwhile, was wrapping up its investigation of Lee and
the W-88 and had reached the conclusion there was no evidence
that Lee was a spy. In reaching that decision, the FBI had
relied on the results of the Energy Department's polygraph a
month ago, which had cleared Lee of espionage.
On Jan. 17, FBI agents spent an entire Sunday afternoon at Lee's
house conducting one last interview. On Jan. 22, the
Albuquerque office wrote a ``he's not our guy'' memo to
Washington.
The case was all but closed. Lee was given a letter of apology
by the lab and told he would be sent back to X Division.
But before Lee could return to his old office, the FBI delivered
surprising news.
FBI experts had belatedly reviewed the wiggly line charts and
videotape from Lee's Energy Department polygraph in December.
They did not agree that he had told the truth. FBI Director
Freeh would later testify that ``Dr. Lee's response to the
question whether he had ever committed espionage against the
United States was at best inconclusive.'' Another review of the
polygraph, by an Energy Department expert at the department's
Pacific Northwest National Laboratory, also concluded that the
earlier finding was inaccurate.
On Feb. 10, the FBI gave Lee two polygraphs. The first was
inconclusive. But he failed the second, the FBI concluded,
because Lee was deceptive when he denied ever having given away
nuclear weapons design codes.
The polygraphs lasted from 9 a.m. to 4 p.m. By 4:10, Lee was
back in his office, deleting computer files -- 310, the FBI said,
by 9:30 p.m.
Four weeks later, Wen Ho Lee became headline news.
On Saturday, March 6, the New York Times ran a front-page story
that would turn the simmering case into a national controversy.
The Times laid out the investigation of the loss of the W-88, in
a tone of alarm. Although the story contained a number of
caveats, the overall impression was that an unnamed
Chinese-American weapons scientist at Los Alamos had helped China
make a great leap forward in the miniaturization of nuclear
weapons.
The Times quoted a retired CIA officer as saying, ``This is going
to be just as bad as the Rosenbergs.''
FBI agents had held about 20 conversations with Lee, with little
to show for it. Now, with the Times story sure to drive him to
hire a lawyer, the bureau decided on a final, all-or-nothing
confrontational interrogation in hope of winning a confession.
It failed. The severe techniques used by the agents -- they told
Lee that he could be executed like convicted spies Julius and
Ethel Rosenberg -- would later become a public relations
nightmare for the prosecution.
The morning after the interrogation, two days after the Times
story, Energy Secretary Richardson ordered Lee fired from Los
Alamos, where he had worked for 20 years.
The Times story the next morning, like others, identified Lee by
name and called him the chief suspect in the alleged theft of the
W-88. The Times reporter who wrote the story, James Risen, did
not identify the source of Lee's name.
Notra Trulock, who knew Risen well, testified later that Risen
told him Richardson was the source. Richardson has denied that.
Other reporters have said privately that lower-ranking Energy
officials named Lee.
The reaction from Asian-American leaders, especially in the Bay
Area, was swift. They accused Richardson of smearing a
Chinese-American, violating his privacy and whipping up a new
``red scare'' just to appease Republican critics of lax security
at the weapons labs.
Fremont resident Cecilia Chang, an old friend of Wen Ho and
Sylvia Lee, created WenHoLee.org, which became the main support
group for Lee.
Amid this firestorm, the FBI still had no evidence that Lee had
violated any U.S. laws.
April 1999
FBI's `Sea Change'
In April 1999, FBI agents searched Lee's home. They were in for
a surprise.
In the house they found a notebook that detailed how he had
stored highly sensitive weapons design codes on the unclassified
network and downloaded them to portable tapes. Even after he
made the tapes, he had left copies of the codes on the network.
They had been there for at least six years.
With this discovery, the FBI ended ``Kindred Spirit'' and
launched ``Sea Change,'' an investigation of the tapes.
This time, the FBI went all out. But after conducting 1,000
interviews, agents once again found no evidence that Lee was a
spy. There was no handler, no bribes, no blackmail, no apparent
ideological motive. Lee was oblivious to politics, careful with
money. He was liked by his neighbors. His passions were
computer codes, his children, fishing, gardening and classical
music.
But the FBI still believed that Lee might have given secrets to
China. The Chinese had played Lee carefully, the FBI concluded.
The agents saw Lee as a run-of-the-mill scientist, low on the
status ladder, who sought recognition for his work and
exaggerated his role at the lab. Flattery would be the key to
drawing him out. The Chinese invited him to give talks, told him
they needed his help with problems they couldn't solve.
High-ranking officials sought him out.
Still, even with Lee's admission that he had helped Chinese
scientists with some unclassified computer codes and mathematics
problems, there was no proof that he had ever given away
classified information.
While ``Sea Change'' went forward, other agents were going
backward, picking up the investigative leads that weren't
followed in 1996, when the Energy Department had focused on Lee.
In late September the FBI announced that it had broadened its
W-88 investigation -- a tacit admission that Lee probably was not
the source of any lost W-88 secrets.
1999-2000
59-count indictment
In December 1999, the Justice Department threw the book at Lee.
He was indicted in Albuquerque on 59 counts of mishandling
classified material by moving nuclear codes to the open network
and downloading them to magnetic tapes. Three tapes had been
found in Lee's office, but seven were missing. Though the
indictment did not accuse Lee of giving the tapes to China, that
was the clear implication.
The Justice Department played hardball. Some of the charges were
filed under the rarely invoked 1954 Atomic Energy Act, and
conviction could bring life in prison. Prosecutors and
government witnesses convinced U.S. District Judge James Parker
that Lee was a national security threat whose missing tapes could
tip the global strategic balance if a foreign government obtained
them.
Stephen Younger, the director of nuclear weapons programs at Los
Alamos, testified that, in the wrong hands, the missing tapes
``represent the gravest possible security risk to the United
States.''
To hammer home the point, U.S. Attorney Robert Gorence
repeatedly referred to the tapes as the ``crown jewels'' of U.S.
weapons secrets.
Reluctantly, Parker jailed Lee without bail, virtually
incommunicado.
But for the next nine months the government's case hit one
roadblock after another.
The Atomic Energy Act required prosecutors to prove that Lee had
downloaded the files to the magnetic tapes ``with intent to
injure the United States'' or ``to secure an advantage to any
foreign nation.'' It would prove to be an almost impossible
burden of proof.
John Cline, one of Lee's lawyers, crafted a ``graymail'' defense
and convinced Parker that for Lee to get a fair trial, the
defense would have to present large amounts of classified
information in open court. The government was forced to choose
between dropping the case or disclosing the classified material.
Parker also ordered the government to turn over documents that
might show Lee was singled out for investigation because of his
race. Moreover, Parker ordered the government to turn over
documents about Wen Ho and Sylvia Lee's cooperation with the FBI
and CIA. These files would blunt prosecuting claims that the
Lees' contacts with Chinese scientists were nefarious.
The prosecution also abruptly altered a crucial part of its case
-- Lee's alleged motive. In a surprising move, George
Stamboulidis, the lead prosecutor, announced that the government
might claim at trial that Lee made the tapes to beef up his
résumé in the early 1990s as he applied for jobs in Germany,
Hungary, Austria and France. The sudden introduction of the
``résumé theory'' implied desperation on the government's part.
By August, Parker was ready to release Lee on bail. In a
scathing critique, he said he felt he had been misled by
exaggerated statements by Los Alamos officials about the
importance of the tapes, along with the inaccurate testimony of
the government's chief witness, FBI agent Robert Messemer.
Parker had been pushing for a plea bargain for months. In
September, the government finally saw the handwriting on the
wall. A deal was reached. Lee pleaded guilty to a single felony
count of downloading classified codes to one tape, agreed to tell
the FBI about the missing tapes and was released after serving
278 days in jail.
Finale Plea deal to TV deal
In the most dramatic moment of all, Parker delivered a long,
emotional apology to Lee from the bench. The small, quiet man --
once cast as the most dangerous man in America -- went home to go
fishing.
As part of the plea bargain he finally talked to the FBI about
the missing tapes, saying he had thrown them in the dumpster.
The FBI waited two months and then began digging up the Los
Alamos landfill. None of Lee's tapes has been found. He's told
agents he doesn't remember how many he made. Justice Department
officials worry that there may never be a satisfactory answer to
the questions of why Lee made the tapes and what he did with
them.
Meanwhile, the FBI continues to search elsewhere for the spy who
gave away the W-88 -- if there is one.
In Los Alamos, Lee and his family are preparing for a party
Thursday in Foster City to celebrate his 61st birthday, not to
mention the deals they've just signed to tell their story in
print and on the small screen.
Over in X Division, the nation's bomb wizards are joking about
who in Hollywood will portray them in the ABC-TV miniseries.
=================================================================
Kadosh, Kadosh, Kadosh, YHVH, TZEVAOT
FROM THE DESK OF:
*Michael Spitzer* <[EMAIL PROTECTED]>
~~~~~~~~~~~~~~~
The Best Way To Destroy Enemies Is To Change Them To Friends
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