AIM Report 2004 February-B
JOURNALISTS’ TURN TO SQUIRM
Only in America could a convicted felon sue the federal government for violating his privacy and find a federal judge sympathetic to his case. But that is exactly what has happened in a U.S. District Court in Washington, D.C.
When government officials denied being the source of media reports about the felon, his attorneys switched their attention to journalists in an effort to force them to give up their sources. Media spokesmen and advocacy groups have been quick to defend the press’ First Amendment rights, but continue to ignore new information about the felon’s history and suspicious activities.
That convicted felon is former Los Alamos scientist Wen Ho Lee. In December 1999, he was indicted on 59 counts of mishandling classified nuclear-weapons data.
The indictment followed the discovery that Lee had been transferring the equivalent of 400,000 pages of classified nuclear weapons information to an unclassified computer network and a set of portable magnetic tapes.
Deal With Lee
Lee’s case never made it to trial, but was settled via a plea bargain in September 2001. He pled to one count of tampering with “restricted data”?that is, nuclear weapons design information. The prosecution gave him a pass on other charges, including one allegation that he compromised the very latest data on the two most modern nuclear warheads in the U.S. enduring nuclear stockpile. In return, he promised to tell the government what he had done with at least seventeen portable computer tapes that he had compiled since 1993. In a characterization shared by many inside the government, Lee’s tapes were said to represent a portable nuclear library. At the time, FBI Director Louis Freeh told the Congress that the deal represented the “best opportunity to protect the national security by finding out what happened” to the tapes. He walked out of court a free man, but the tapes have never been recovered.
The presiding judge at Lee’s bail hearings, a Reagan appointee, excoriated top officials at the Energy and Justice Departments for their treatment of Lee. Recent media accounts claim that President Bill Clinton apologized to Lee, but those reports are inaccurate. After the plea bargain, Clinton did pronounce himself “troubled” with the outcome, but a White House press spokesman later told the media that Clinton had not meant this as a criticism of Janet Reno or federal prosecutors.
In 2001, Lee filed a lawsuit against the Departments of Energy and Justice as well as the FBI alleging that these agencies had violated his Privacy Act rights. The suit charges that the government disclosed information in 1999 and 2000 about the former Los Alamos scientist “by name, without obtaining his consent or assuring its accuracy” to the media. The suit further charges that information about Lee’s employment record and financial status were leaked. In particular, Lee’s attorneys charged that the government provided false information to the media about the results of polygraphs taken by Lee in late 1998 and 1999.
The case has dragged on for three years as Lee’s attorneys deposed current and former government officials. Not surprisingly, these officials denied being the source of media reports or, more commonly, couldn’t recall events from that period.
Former Energy Secretary Bill Richardson, for example, said he couldn’t recall whether he had talked to reporters from the New York Times about Lee. Unable to obtain relevant information from these officials, Lee’s attorneys petitioned Judge Thomas Penfield Jackson to order journalists to reveal their confidential government sources for stories they wrote about Lee in 1999. The attorneys also requested that the judge order the reporters to turn over all notes and any other documents used in the preparation of their stories.
The five journalists named in the petition are Jeff Gerth and Jim Risen of the New York Times, Robert Drogin of the Los Angeles Times, H. Josef Herbert of the Associated Press, and Pierre Thomas, who was then working for CNN. Gerth and Risen are credited with breaking the story of suspected Chinese espionage at the Energy Department’s nuclear weapons labs on March 6, 1999. In truth, however, Carla Ann Robbins of the Wall Street Journal was the first to break the story on January 7, 1999; but unfortunately for her, the Journal ran the story the same day the impeachment trial of then-President Bill Clinton opened.
The Washington Post ran Walter Pincus’ story on the espionage case on February 17; Pincus cited unnamed sources as telling him that the FBI’s espionage investigation “came to focus on an Asian-American scientist at Los Alamos who had contacts with the Chinese and has since been transferred to a job in the [lab’s] national security area.” Lee is Chinese-American, although he was born in Taiwan. His clearance had been suspended in December 1998 and he was working in an unclassified area at the lab at that time.
Despite these details, Pincus has not been named in Lee’s suit. That may be because the Post played a leading role in the media campaign in 1999-2000 to play down the espionage scandal and exonerate Lee.
The journalists petitioned to have Judge Jackson dismiss the motion citing their protection under the First Amendment “reporter’s privilege.” They argued that journalists may “decline to reveal news sources in the interest of protecting the press’ ability to acquire information freely, particularly when a source had been promised that his or her identity would not be revealed.” In particular, the journalists argued that Lee has hardly exhausted all possible alternative sources of information; they asserted, correctly, that literally hundreds of individuals on Capitol Hill, in the White House, and serving on special commissions were in possession of information about Lee, but have not been deposed. But Jackson rejected those arguments and ordered the journalists to submit to depositions. He ordered that all five, “if asked, truthfully answer questions as to the identity of any officer or agents of the defendants who provided information to them directly about Wen Ho Lee.”
Media spokesmen and advocacy groups sharply criticized Jackson for what they fear is an encroachment on the press’ ability to conduct investigative journalism. According to a Washington Post report, the LA Times’ Drogin declined to identify confidential sources and said, “I have thought long and hard about this, and unlike you attorneys here in the room, I do not have subpoena power or anything else to gather information. I have the word that I give to people to protect their confidentiality. If I violate that trust, then I believe I can no longer work as a journalist.” All five could potentially face jail time or fines for refusing to comply with the judge’s order.
There has been considerable speculation as to Jackson’s motives for ordering the depositions. In his memorandum, Jackson criticizes current and former government officials for memory lapses, “denials, vague or evasive answers, and stonewalling.” The Judge obviously has not read Wen Ho Lee’s deposition taken in the context of another civil action. (For a masterwork of stonewalling and obfuscation, see the transcript of Lee’s deposition at http://www.JudicialWatch.org . Jackson cites the Energy Department’s response to a question posed to then Secretary Bill Richardson: “Admit that Richardson provided Wen Ho Lee’s name to James Risen of the New York Times in connection with purported Chinese spy scandal coverage.” The Department’s reply: DOE responds that it has made reasonable inquiry and that information known or readily obtainable is insufficient for DOE to admit or deny the truth of the requested information.”
Judge Jackson gained notoriety for his handling of the Microsoft anti-trust case. In 2001, a Court of Appeals overturned his verdict that would have broken up Microsoft. In its order, the court harshly criticized Jackson for his comments about Microsoft to reporters as well as his conduct of the trial. One account labeled him a “media blabbermouth, whose private chats with reporters wound up costing the Justice Department its biggest victory in a generation.”
The appeals court cited Jackson’s “rampant disregard for the judiciary’s ethical obligations” and complained, “The system would be a sham if all judges went around doing this.” Some have wondered if Jackson is miffed at seeing high-ranking government officials, like Richardson, stonewalling on interactions with the media, while he was publicly condemned for similar behavior. The Seattle Times asked if Jackson’s ruling represented “payback” for the Microsoft case.
Media Myths About the Case
Judge Jackson’s order perpetuates several of the media myths surrounding the Lee case. For example, he writes that on March 6, 1999, a New York Times article by Gerth and Risen “broke the story of the [Chinese nuclear espionage] investigations and publicly identified Dr. Lee as a suspect.” That assertion is inaccurate. As already shown, the story was “broken” weeks before the Gerth/Risen article. Moreover, their article identified the “main suspect” as a “Los Alamos computer scientist who is Chinese-American.” That an “Asian American scientist at Los Alamos” was the Bureau’s prime suspect was already a matter of public record. Gerth and Risen did not name Lee. What made Gerth and Risen’s article significant were their revelations about the Clinton administration’s handling of the spy scandal; it was the third in a series by Gerth on corruption and mismanagement in the administration. He had been one of the first to report on Whitewater and he also broke the story of the administration’s complicity in illicit technology transfers to the Chinese in return for campaign contributions. Two high-level Clinton officials subsequently acknowledged to the Times that the administration had “moved too slowly” in response to the discovery of “enormous lapses in security at the Energy Department’s laboratories.”
The first journalist to publicly identify Lee by name was the AP’s H. Josef Herbert on March 8. His article cited an Energy Department press release announcing that a Los Alamos scientist had been fired for “failing to properly safeguard classified material” and unreported contacts with “people from a sensitive country,” although the press release did not name Lee. Herbert has refused to identify the government source of his report.
On March 9, Risen published Lee’s name in a report of an interview he had conducted with Energy Secretary Richardson. Risen reported Richardson told him that Lee had been fired on March 8 “for security breaches after the FBI questioned him in connection with China’s suspected theft of American nuclear secrets.” Richardson would later deny that he had named Lee in this interview.
One major inaccuracy in the media stories about Lee concerns the results of polygraphs he underwent in December 1998 and February 1999. In his February article in the Post, Pincus claims that his sources told him that the “individual so far [has] refused to take a polygraph test.” Pincus’ sources misled him or were not privy to details of the case. Certainly the FBI and DOE officials knew about Lee’s polygraph experiences, which suggest that Pincus’ sources were on Capitol Hill or at the Central Intelligence Agency. But the Times’ March 6 article got it right. Gerth and Risen wrote that Lee had failed a lie detector test in February 1999.
Lee Flunked Two Polygraphs
The circumstances surrounding Lee’s polygraphs remain obscure. The FBI ran the espionage investigation, but for reasons still unexplained, the Bureau agreed to allow a private security firm, Wackenhut, under contract to the Energy Department, to conduct the first polygraph exam of Lee in December 1998. A June 1999 Foreign Intelligence Advisory Board investigation of the case asked, “Why DOE, rather than the FBI, conducted the first polygraph in this case when the case was an open FBI investigation.” A Senate inquiry would later conclude that the “mishandling of this polygraph is one of the most consequential errors of the Wen Ho Lee matter.”
On December 23, 1998, the Wackenhut polygrapher told Lee that he had passed the exam. That would become part of the lore of the Lee case and be repeatedly cited by Lee’s apologists to show that the government scapegoated him. On February 4, 2000, for example, CBS Evening News correspondent Sharyl Attkisson told viewers that Lee had passed the December polygraph with flying colors. She quoted former FBI agent Richard Keifer, then chairman of the American Polygraph Association, saying “he had never been able to score anyone so high on the non-deceptive scale.” Keifer would later claim that Attkisson had quoted him out of context. When he finally had the opportunity to review Lee’s polygraph charts, he said that the Wackenhut exam questions were structured in such a fashion as to ensure that Lee scored well on the exam.
How Wackenhut botched Lee’s December polygraph is revealed in a recently declassified FBI report on that exam. FBI agents were present at the exam and requested that copies of the transcripts be made available to the Bureau’s polygraph quality control unit in Washington. But Energy Department security officials declined to forward those transcripts for at least a month.
When the Bureau finally had an opportunity to review them, it told the FBI agents “it cannot endorse the results.” A declassified memo from the FBI Headquarters Polygraph Unit to the Albuquerque FBI field office concluded the Polygraph Unit “cannot officially evaluate the results of any outside exam because the FBI had no control over the quality of the exam.” But the unit concluded it “would not have passed the subject. He seemed inconclusive, if not deceptive, on two of the questions, those being ‘Have you ever had any contact with anyone to commit espionage against the United States?’ and ‘Have you ever had any personal contact with anyone you know who has committed espionage against the United States?’” The unit “observed there seems to be something wrong because the subject had huge reactions to both control and relevant questions. Subject did not pass the exam.”
The Albuquerque field office was urged to conduct its own examination, which it did on February 10, 1999. The test focused on Lee’s contacts with Chinese scientists and “whether or not he had compromised the W-88 warhead.” It has been previously reported that he reacted deceptively to two questions as to whether he had passed specific nuclear weapons codes or W88 information to unauthorized persons. Another declassified FBI memo provides more detail about the questions; he was asked whether he had ever provided two classified codes to a PRC scientist and whether he had ever “deliberately obtained any blueprints for the W-88.” The FBI polygrapher administered the exam twice and then concluded Lee’s “reactions indicat[ed] deception when he answered those questions.” The reference to “blueprints” is significant because, first, Lee claimed no knowledge of the W88 warhead. More significantly, the Clinton administration would later claim not to know whether China had obtained blueprints for the W88 or other warheads.
Since Lee’s 2000 plea bargain, much new information about his “long history” with the FBI has been placed on the public record. We now know that the Bureau investigated Lee three times between 1982 and 1999.
Most telling was the conclusion of a federal prosecutor who reviewed the Clinton administration’s handling of the case. In 2001, his report concluded there was sufficient “probable cause to believe that Wen Ho Lee was an agent of a foreign power, that is to say, a United States Person currently engaged in clandestine intelligence gathering activities for or on behalf of the PRC which activities might involve violations of the criminal laws of the United States and that his wife, Sylvia Lee, aided, abetted, or conspired in such activities.”
Recently, the Public Broadcasting Service (PBS) Frontline program ran a story on the “Parlor Maid” Chinese espionage case in California. The story, “From China With Love,” aired on January 15 and included an interview with Notra Trulock, AIM Report Associate Editor who is the former chief of intelligence in the Energy Department.
The program also featured interviews with former FBI special agents Edward Appel, T. Van Magers, Jack Keller, and I.C. Smith, former Ambassador to China James Lilley, and Dan Stober of the San Jose Mercury News.
The broadcast was a useful expos? of the serious problems at the Bureau and in our national security apparatus in general. It was also a useful antidote to the tendency by the media (and the Bush administration) to ignore China and the threat it poses.
Frontline made only a passing reference to the Wen Ho Lee case, citing it as one of the many Bureau frustrations in coping with Chinese spying. The next day, the Frontline producer Michael Kirk participated in an on-line Internet chat hosted by the Washington Post and was asked about the Lee case and its relation to the Parlor Maid and other Chinese espionage cases of the past twenty years. He said, “The Wen Ho Lee case remains one of the great unresolved stories in the history of American counterintelligence. Someday, perhaps someday soon, serious journalism will take a long hard look at the facts of the case.”
In truth, “many hard facts” about Lee, Chinese nuclear espionage, and the Bureau’s handling of this threat, are on the public record. Most of those run counter to the media’s interpretation of what actually happened in this case.
The Justice Department has declassified large portions of one of its internal reviews; there is a detailed account of Lee’s previous encounters with the FBI. Lee’s brush with the Bureau in 1996, for example, was the third time he had been the subject of an FBI counterintelligence investigation. Similarly, congressional testimony by administration officials, like Janet Reno, has also been declassified and provides further insight into the Bureau’s probe of Lee.
A Senate Judiciary committee report also provided new details and insights into the case. Among other things, the Senate report revealed that in 1994 the Bureau had already been told that Lee had helped Chinese nuclear scientists with computer codes and software. Its main conclusion?that since 1982 the government’s “handling of the Wen Ho Lee affair has been an unmitigated disaster”?should have provoked intense scrutiny from the media. But Lee’s apologists have persuaded many in the media that Lee was an innocent victim of an administration eager to deflect public attention from its mismanagement of national security. Add to this allegations that Lee was a victim of racism and ethnic profiling, and it’s little wonder that journalists have shied away from taking that “long, hard look” at the case.
What You Can Do
Send the enclosed cards or cards and letters of your own choosing to Margaret Spellings of the White House, CNN’s David Bohrman, and Frontline producer Michael Kirk.