The American public must be wondering what it takes to be formally accused of espionage these days, especially if the People’s Republic of China is somehow involved. For the third time in less than a decade, indictments have been returned against Chinese-Americans suspected of spying for China. And for the third time, the Justice Department has shied away from formally charging these suspects with violations of 18 U.S. Code 794, the federal espionage provision which carries with it the possibility of a death sentence.
For example, in 1997 former Los Alamos National Lab scientist Peter Lee confessed to FBI agents that he had provided classified nuclear weapons design and testing information to Chinese scientists as well as classified information on U.S. anti-submarine warfare programs. Main Justice in Washington overruled a federal prosecutor’s request to indict Lee on espionage charges on the nuclear issue and the government refused to pursue any charges on the anti-submarine warfare allegations. Instead, Justice prosecuted Lee on the lesser charge of attempting to communicate national defense information to an unauthorized party. If convicted, Lee could have been sentenced to up to 15 years; instead, he got a year in a half-way house in Anaheim, a $20,000 fine and community service.
Or take the case of Wen Ho Lee in 2000. Despite an internal Justice Department review that concluded there was sufficient probable cause to believe that Lee was “currently engaged in clandestine intelligence-gathering activities for or on behalf of the PRC,” the FBI bungled so badly that it was about to drop its investigation altogether when it stumbled over Lee’s massive transfers of classified nuclear weapons information to an unprotected computer network server. Despite the U.S. intelligence community’s knowledge that China was trying to acquire precisely this type of information from our nuclear labs, the government settled for Lee’s plea of guilty to one count of mishandling classified information. He got a sentence of time served and a fine in return for his promise to tell the government what he did with at least 20 portable magnetic tapes containing his downloaded classified files. The tapes have never been recovered.
Now the government has returned indictments against suspected Chinese-American double agent Katrina Leung and her FBI lover J.J. Smith. A declassified FBI affidavit alleged that Leung “was providing classified information to PRC intelligence services.” The Bureau has known for more than 10 years that she has had unauthorized contacts with the Chinese Ministry of State Security, China’s intelligence arm, which had assigned a case officer to her and even given her a code name. The Bureau’s affidavit states that Leung “admitted that she provided intelligence she gained (from her FBI lover)…to the MSS.”
Yet she was indicted on three counts of illegally copying and retaining classified U.S. national defense documents. There is no reference in the indictments to providing these documents to China or any other of her activities on behalf of the MSS. Prosecutors told reporters that additional charges could be filed at a later date, but don’t bet on it. Her FBI lover was actually indicted on more counts than Leung, although if convicted he would receive a lighter sentence. Prosecutors were broadly hinting, however, that they preferred to strike a plea bargain with Leung in hopes that in return she would help the Bureau with its damage assessment. The Bureau is said to fear that she has compromised nearly every FBI Chinese counter-espionage investigation as far back as twenty years, including nuclear espionage and campaign finance cases. She is also suspected of providing a means for Chinese intelligence to introduce disinformation that was conveyed as high up as presidents from Reagan to George W. Bush. They also implied strongly that obtaining an espionage conviction might be too tough. Not surprisingly, Leung’s lawyer is delighted at the government’s decision not to prosecute on espionage charges.
But that wasn’t the case in the recent prosecution of a retired Air Force sergeant. Brian P. Regan was tried and convicted of attempted espionage; he received life in prison without parole after a jury rejected the government’s efforts to give him the death penalty. Although China was mentioned as one of the intended benefactors of Regan’s spying, his big mistake was trying to sell classified documents to Libya and Iraq. Neither country has much support in the U.S. and they lack the kind of activist organizations and effective lobbying campaigns that China has been able to muster. So if you get caught spying for China, you likely will get a free pass.