Two narratives stand in mutual contradiction. In one of them, Wen Ho Lee, a computer scientist at Los Alamos National Laboratory, is what the New York Times called him in June 1999: a man possibly “responsible for the most damaging espionage of the post-cold-war era,” and almost certainly guilty of providing the nation’s most precious secrets to Communist China. In the other, he is what the same New York Times called him a year later in an extraordinary editorial note: the victim of a “witch hunt.”
Which narrative, if either, is true, or at least more plausible? The question is caught up in a thicket of hot-button issues: racial profiling, journalistic conduct and misconduct, prosecutorial tactics, political ambition, Chinese strategy, and the secret workings of U.S. law-enforcement agencies. But most of the facts are now in the public domain, and two new books about the case—including one by Wen Ho Lee himself—enable us to reach some tentative judgments.1 What makes the opportunity timely is this: the entire episode sheds a great deal of light on how a major agency of our government grappled with national-security lapses in the decade before September 11.
Many of the essentials of the story are not in dispute. In the early 1990’s, U.S. counterintelligence officials began to suspect that the People’s Republic of China (PRC) had acquired top-secret information about the W-88, a highly compact nuclear warhead of the kind that made possible the mounting of multiple independently targeted reentry vehicles (MIRV’s)—i.e., numerous warheads on a single rocket. China now has only twenty intercontinental ballistic missiles capable of reaching the U.S., and each of these missiles is able to carry only a single warhead; thus, the acquisition of MIRV technology would have enabled the Chinese to make a great leap forward in their offensive nuclear capacity, with profound consequences for the balance of power in Asia and the world.
The evidence suggesting espionage was of two kinds. First, in 1992, the PRC tested a nuclear device dramatically smaller than anything previously known to be in its possession; given how difficult it is to design and manufacture a miniaturized warhead, this raised fears that advanced U.S. technology had leaked. Second, and greatly amplifying worries about a security lapse, in 1995 a walk-in defector purporting to be a PRC missile expert delivered a stack of weapon-design plans, including drawings of the W-88, to Taiwanese intelligence.
In short order, a full-fledged hunt for a spy was set in motion by officials at the Department of Energy (DOE), the agency that oversees the U.S nuclear arsenal, working jointly with the Central Intelligence Agency (CIA), the Justice Department (DOJ), and the Federal Bureau of Investigation (FBI). For reasons that remain a subject of intense controversy, suspicion fell on Wen Ho Lee.
A Taiwan-born computer scientist who acquired U.S. citizenship in 1974, Lee was working in the highly classified X, or theoretical, division at Los Alamos, one of three national laboratories (along with Sandia and Lawrence Livermore) where nuclear weapons are designed, tested, manufactured, and maintained. In 1994, Lee was observed embracing a leading Chinese weapon designer who was visiting Los Alamos. This raised questions about how they had become acquainted. In short order an FBI investigation was launched, but it proceeded desultorily and after several years had arrived at a standstill. (I shall return to this below.) Then, in early 1999, the spy-hunters suddenly struck what looked like a vein of gold: Lee, it seems, had embarked on a multi-year effort to download the entire collection of computer codes used to model the effects of test explosions of U.S. nuclear weapons, moving them from the secure computer system on which they were housed to unclassified computers and then onto portable cassette tapes.
Not long after this astonishing find, word that a spy had been uncovered at Los Alamos was fed to the press, and in March 1999, the New York Times published dramatic revelations alleging that an (as yet unnamed) employee at the lab had done immense damage to national security. Lee, now aware that he was under suspicion, entered secure areas of the Los Alamos lab under false pretenses and succeeded in deleting some, but only some, of the sensitive files he had illicitly copied.
In the final weeks before he was picked up, rotating teams of FBI agents shadowed his every move. So did the media, which staked out his home around the clock. Finally, on December 10, 1999, Lee was arrested and charged with 59 separate criminal acts, 39 of which carried a life sentence for espionage and violations of the Atomic Energy Act. Denied bail as someone at risk of fleeing, he was placed in solitary confinement in a Sante Fe maximum-security prison. To block any further possible communication with Chinese spy-masters, he was subjected to the most stringent conditions under which a prisoner can be held in a U.S. jail; among other precautions, his feet were manacled for long stretches and a chain connected his hands to a belt. The physical restraints, though, were the least of his worries, for the government also appeared to have an airtight case against him. His transgressions seemed to be deliberate, blatant, prolonged, and shockingly extensive.
But the day of Wen Ho Lee’s arrest also proved to be the high point for the spy-catchers, and from then on it was all downhill. Adamantly and consistently denying that he had ever committed espionage, Lee recruited a team of top-flight lawyers who set to work mastering the arcana of nuclear-weapons codes and the security restrictions governing them. His daughter Alberta traveled the country, rallying audiences to her father’s defense. A public-relations firm was signed up by Lee’s lawyers to help sway elite and popular opinion. Ambiguities and anomalies in the government’s allegations began to gain a hearing in the press. The editorial pages of the nation’s newspapers, at first sharply against Lee, began to shift.
By the time Lee’s trial was set to commence a year later, the government’s case had almost completely collapsed. The whole affair ended in a plea bargain. Lee confessed to a single count of violating security procedures and accepted his punishment—a slap on the wrist that was grossly disproportionate to the grave charges he had faced and that made a mockery of the draconian conditions of his pretrial imprisonment. He was sentenced by the court to time already served, 278 days. From the bench, the presiding judge, James Parker, issued an extraordinary apology:
I believe you were terribly wronged by being held in custody pretrial in the Santa Fe County Detention Center under demeaning, unnecessarily punitive conditions. I am truly sorry that I was led by our executive branch of government to order your detention last December. . . .
The top decision-makers in the executive branch, especially the Department of Justice and the Department of Energy and locally . . . have caused embarrassment by the way this case began and was handled. They did not embarrass me alone. They have embarrassed our entire nation and each of us who is a citizen.
What had happened to produce this thoroughly unexpected result? Even today, with the wealth of information on the table, a definitive answer remains elusive, though at least some subsidiary matters can be wrapped up with assurance. One of them, which became highly contentious over the course of the affair, is the issue of racial profiling.
A number of activists and Asian-American defense organizations continue to allege that, from beginning to end, the investigation of Wen Ho Lee was driven by racism. This accusation has been voiced loudest of all by Lee himself. In My Country Versus Me, an exceptionally persuasive (and at key junctures exceptionally deceitful) book, Lee paints himself as a selfless, hardworking, and entirely guiltless immigrant who loyally served the national-security establishment of his adopted land for decades. A number of commonplace security infractions, he writes, were misinterpreted in a climate in which virulent anti-Chinese sentiment was on the ascent, “articles and talk shows banged the drum against the insidious spying techniques of China,” and the press, already replete with “derogatory” references to Chinese people, “characterized Chinese-Americans as potential, and easy, espionage targets.”
An exhaustive review of the evidence bearing on this particular charge can be found in the Bellows Commission report, an authoritative, four-volume post-mortem of the entire Wen Ho Lee fiasco released by the Justice Department in December 2001. (Bellows is Randy Bellows, an assistant U.S. attorney who headed the commission.) The report itself is stamped “top secret” and is available to the public only in heavily redacted form.2 But the unexpurgated portions make several things clear, and among them is the place of ethnic or racial profiling in the investigation.
Very early in the inquiry into the feared loss of the W-88, a DOE investigator drew up an investigative plan that stated, in part: “An initial consideration will be to identify those U.S. citizens, of Chinese heritage, who worked directly or peripherally with the design development” of the warhead. Such a method, the document noted, “is a logical starting point based upon the intelligence community’s evaluation that the PRC targets and utilizes ethnic Chinese for espionage rather than persons of non-Chinese origin.”
There could hardly be clearer evidence of an intention to conduct racial profiling. But the matter is not so simple. For one thing, if PRC intelligence does in fact single out Chinese-Americans for recruitment—as seems to be the case—U.S. officials who failed to take this into account would be grossly remiss in their duty. But, for another thing, racial profiling was almost wholly absent in the Wen Ho Lee affair. The Bellows commission uncovered no evidence whatsoever that the espionage inquiry ever proceeded in the manner proposed by the DOE investigator, and no officials from the Energy Department or any other arm of the federal government ever drew up any sort of list of U.S. citizens of “Chinese heritage.” Even more significantly, Wen Ho Lee’s name surfaced in the spy hunt—repeatedly—for reasons entirely unconnected to his national origin.
Nearly a decade before the W-88 became an object of concern, Wen Ho Lee’s conduct had attracted the attention of the FBI. In 1982, he had placed a telephone call to another Chinese-American scientist at Lawrence Livermore Laboratory who was himself under suspicion for betraying nuclear secrets and whose telephone was then being tapped by the FBI. Questioned a year later about the call, Lee denied knowing the other man, let alone ever having had any contact with him. Only when confronted with documentary evidence did he acknowledge his lie to the FBI.
Though Lee’s behavior led to an investigation, he passed a polygraph exam and agreed to assist the FBI in its investigation of the other scientist. He lost neither his position nor his security clearance and suffered no further repercussions of any sort. Still, a counterintelligence file had been created under his name, which made it entirely natural that in any new investigation of a security breach at Los Alamos, especially one of this gravity, old dossiers would be exhumed and previous findings would be juxtaposed to fresh information.
That is precisely what happened. Lee’s past and present behavior was now subjected to close scrutiny; even before investigators learned about the downloaded nuclear codes, what they uncovered was disturbing enough. It seems that on a lab-approved visit to the PRC, Lee had met with leading Chinese nuclear-weapon designers, two of whom had even come to his hotel room and asked detailed questions about the detonation mechanisms of U.S. nuclear bombs. Upon his return home, Lee had failed to say a word about this extraordinary encounter in his official trip report—which at the very least was a serious violation of regulations. (One of his hotel visitors was later a participant in the 1994 “hug” incident, as the FBI called it.)
What was he up to? Why had he secretly met with Chinese weapon designers in a Beijing hotel room, and to what end did he (as it later emerged) download a complete collection of the government’s most sensitive nuclear files? If this was not espionage—the loss of the downloaded files, according to one government official, represented “the gravest possible security risk to the United States”—what was it?
Astonishingly enough, on this particular point the government’s case turned out to be appallingly thin. As Lee’s attorneys discovered to their delight, the software in question, despite its alleged sensitivity, had not been classified as secret by the DOE until after Lee was indicted. Up to that juncture, it bore the mark PARD—“protect as restricted data”—a low-level security designation devised to cover huge collections of unclassified information that might possibly contain classified fragments. With this revelation, in one fell swoop, the prosecution suffered a devastating blow.
For another thing, as Dan Stober and Ian Hoffman emphasize in A Convenient Spy, their instructive if sometimes overheated account of the case, some (though not all) of Lee’s fellow scientists were very skeptical of the usefulness of the downloaded files to a foreign adversary. Among its various flaws, the software was said to be replete with bugs that caused it to crash, to “deliver bad answers,” or “to predict bombs would work that wouldn’t.” As Judge Parker declared at Wen Ho Lee’s bail proceedings, “I am confronted with radically divergent opinions expressed by several distinguished United States nuclear-weapons scientists who are on opposite sides of the issue of the importance of the information Dr. Lee took.”
Even if we assume the worst—namely, that the codes were vital to U.S. national security—the prosecution had nothing beyond circumstantial evidence that Wen Ho Lee ever transferred them to any unauthorized person. If it had come down to a trial, a jury, on the basis of reasonable doubt as to whether the scientist had betrayed his country, would have been forced to acquit.
In My Country Versus Me, Lee offers his own “very simple and mundane” explanation for why he downloaded the codes and transferred them to cassette tapes. He was doing nothing more, he writes, than backing up his work out of concern that the lab might change its computer operating system or that the system itself would crash and erase his data, rendering useless years of his own toil. He knew it “wasn’t proper,” but such practices were widespread and “before me, no one was ever fired for this,” let alone “arrested, thrown in jail, placed in solitary confinement for nine months, and accused of espionage.”
As for erasing files on the eve of his arrest, he did this, he asserts, openly and with no intention of covering his tracks. He had been stripped of his security clearance and was anxious to relinquish possession of all classified documents under his control. To this end, he even asked the people at the lab’s computer-assistance desk for “instructions on how to delete the files,” and they cheerfully obliged, just as they had done when he sought assistance in making the unauthorized copies in the first place.
Lee also has an explanation, almost as benign, for his failure to report his meeting with Chinese weapon designers in a Beijing hotel room. At that meeting, he writes, he declined to answer the questions about U.S. warheads posed to him by his visitors, and no secrets were betrayed. The reason he did not report the episode was that he feared another investigation of the kind to which he had been subjected in 1983. His behavior may have been unethical, even a criminal violation of security regulations, but it did not amount to espionage.
Indeed, as Lee is at pains to stress in his book, the FBI only learned about the hotel meeting because he himself voluntarily told them about it in a 1998 interview at which he waived his right to have an attorney present—hardly the actions of a guilty man.
I told everything I could think of, so that any doubts about me could be cleared. Little did I realize that . . . the fact that I hadn’t mentioned it earlier became the “proof” of my suspected espionage activity. Officials at the lab, the FBI, the DOJ, the DOE, politicians in Congress, and the media would later cite my recollections of this 1988 incident as evidence that I was deceptive, a liar, and therefore a probable spy.
Lee’s explanation for his conduct in Beijing, for his unauthorized downloads, and for everything else he did that was strange and suspicious is less than utterly convincing. Especially feeble is his claim to suffer from periodic “memory loss,” an argument he invokes to cover some of his most perplexing actions, including the outright falsehoods he told to security officials. Yet even this is not to dismiss the possibility of his innocence: there is a considerable gulf between being a liar, which Lee certainly is, and being a spy and a traitor.
Stringent security regulations of the kind in place at Los Alamos are not only burdensome but also frequently sidestepped or ignored. In such an environment, behavior that might otherwise be regarded as an ordinary human foible can easily be misperceived as sinister. Carelessness or negligence conjoined with a couple of unlucky coincidences can land one in the deepest trouble. A compelling fact is that while Wen Ho Lee was sitting in leg irons awaiting trial on charges that could have deprived him of freedom for the rest of his life, the man appointed by Bill Clinton to run the CIA, John M. Deutch, was using a personal computer hooked up to the Internet from his home to work on documents bearing classifications at least as sensitive as anything ever mishandled by Wen Ho Lee. For this abuse, Deutch, who never sat in jail for even a day, was pardoned on January 20, 2001, just two hours before Clinton’s term expired.
Although Wen Ho Lee did many things that looked like espionage, he also did quite a few things that seem uncharacteristic of a determined spy. Amassing a huge collection of classified data (with file names spelling out the exact contents) and retaining this collection for years on a government computer do not exactly fit the profile of a carefully instructed agent. Neither does hugging one of your supposed espionage contacts in front of a roomful of colleagues. There is also the impression left by Lee under interrogation, which is of a stammering and often desperate-sounding man. Threatened with the electric chair by FBI agents bent on extracting a confession, Lee did not waver in the least from his protestation of innocence. (He reproduces several of these sessions in his book.) Clever spies can of course disguise culpability convincingly, and Wen Ho Lee, as I have suggested, is fully capable of telling bald-faced lies. But, taken all in all, it is hard to believe that he was a spy.
What Wen Ho Lee was really up to is thus ultimately a mystery to which there are as yet no satisfying solutions. In A Convenient Spy, Stober and Hoffman weigh the various hypotheses and settle on a wholly quotidian speculation: that he was afraid of losing his job at the lab—he had been warned of layoffs in 1993, the year he began making the tapes. Since, by all accounts (other than his own), he was a mediocre scientist, he believed that the information contained on the cassettes would be immensely helpful in a new job, allowing him rapidly to solve all sorts of complex problems in his field and making him “appear more talented to a potential employer” than he actually was. Stober and Hoffman’s guess seems as good as any, and I am inclined to accept it—while acknowledging, as they do, that there is ample room for darker interpretations of the kind that landed the scientist in so much trouble.3
If Lee’s motives represent an enigma, a much more difficult subject is the U.S. government’s—and especially the FBI’s—handling of the case. And it is here that the Lee affair rises from being a mere curiosity in the annals of espionage into a telling indicator of the parlous state of our domestic security arrangements in the period leading up to September 11.
While the Wen Ho Lee case was active, it was widely regarded within the government as the gravest national-security breach to confront our country in a decade or more. At issue, after all, were weapons that can incinerate millions of people in one blow. Yet despite the immense stakes, the investigation was handled worse than poorly. What went wrong, and why?
Part of the problem unquestionably stemmed from the vicissitudes of Washington politics during the Clinton administration. Reports that the Democratic party had accepted funds from Chinese-government sources at the very moment the administration was relaxing controls on the export of sensitive technology to China had already touched off an uproar. When word of a security breach at Los Alamos surfaced amid a wave of thematically related scandals, and with the impeachment of the President unfolding, members of the cabinet acted to bypass the normal safeguards against the abuse of executive authority.
After first letting the case languish, Energy Secretary Bill Richardson, Attorney General Janet Reno, and FBI Director Louis Freeh shifted gears. Each of them handled a different aspect of the case, but each took a pivotal part both in inflating the charges against Wen Ho Lee and then having him imprisoned under conditions whose harshness was designed to elicit a supporting admission of guilt that never came. The New York Times was thus right to say that Wen Ho Lee became the target of a “witch hunt,” but it was a hunt conducted not by right-wing anti-Communist zealots (as this language suggests) but by liberals seeking cover from artillery shells they had fired at themselves.
In this witch hunt, the New York Times itself played a leading role. At critical moments, the newspaper published slanted and highly inflammatory reports that simultaneously upended the investigation and served to intensify the pressure to arrest and prosecute Wen Ho Lee on untenable charges. “Passages of some articles,” the Times‘s editors would eventually and euphemistically concede in the editorial note I referred to earlier, “posed a problem of tone.”
The peccadilloes of the Clinton administration are familiar enough, but they have also receded into the past. All too familiar, as well, are the axes ground by the Times. The real story, very much with us still today, is of the government’s permanent investigative bureaucracy, where the record in the case of Wen Ho Lee was one of blunder piled upon blunder into a mountain of incompetence.
Only a small sampling of the mishaps treated at length in the Bellows Commission report can be recounted here. As I have noted, Lee was caught lying to the FBI about a national-security issue as far back as 1983, in a case involving the suspected theft of nuclear secrets. Such behavior might be thought grounds for instant dismissal. But his conduct was downplayed by the FBI because he subsequently appeared to be telling the truth while hooked up to a polygraph machine—a device in which the Bureau (along with the CIA and other government agencies) continues to place inordinate confidence despite repeated instances in which traitors have defeated it.
In this particular instance, thanks either to Lee’s truthfulness or to his ability to overcome the device, he managed to pass an exam in which he was directly asked if he was a spy. Thus, the Los Alamos laboratory was never properly informed about the deeply suspicious lies he had told while not being polygraphed. If it had been, Lee’s security clearance might well have been revoked and with it his prospects for further employment in classified defense work. The Wen Ho Lee story would have ended before it began.
An even more consequential and less comprehensible bungle came a decade or so later, well before the uncovering of Lee’s illicit downloading of the nation’s nuclear “crown jewels” but just as he was emerging as a suspect in the loss of the W-88. It was then that the FBI entered into a battle with the Justice Department over a search warrant to examine the contents of Lee’s office computer. The Justice Department did not find probable cause to issue such a warrant, and repeatedly turned down the FBI’s application until the Bureau tired of asking.
What the FBI agents did not know and did not learn was that, like every other employee of the government-run lab, and like themselves, Wen Ho Lee had agreed to unfettered and surreptitious monitoring of his computer as a condition of employment. Several years elapsed as FBI agents in the field and at headquarters attempted fruitlessly to untangle a knot tied entirely by their own cloddishness, years in which Lee completed his collection of tapes. This, the Bellows report concludes, was “a failure of incalculable and potentially catastrophic significance.”
Inability to examine Lee’s computer was hardly the only reason for the unhurried tempo of the investigation. From beginning to end, the FBI leadership in Washington, though well aware of the ramifications of the case, allocated almost no resources to it, being far more preoccupied with the politically perilous task of investigating Chinese campaign contributions to the Democratic party. This meant that for extended spells, only solitary agents were responsible for the entire W-88 investigation, and these were not the best and brightest in an agency that has never been accused of having a thinking man’s approach to law enforcement.
One of the special agents running the show for a period of time was known for being (according to his personnel records) not only “meticulous and methodical” but also “very, very slow.” At another point, the case was handed over to someone grudgingly characterized by his supervisor as “not the worst agent” he had worked with over the course of his career. For one critical four-year interlude, the Bellows report informs us, the investigation “proceeded at a pace that can only be described as languid, if not torpid, and that pace was itself periodically disrupted by dead-stop-in-the-water delays that, in an important counterintelligence investigation, can only be characterized as maddening and inexplicable.”
The Bellows commission has other choice words for the FBI’s investigation. It was “deeply and fundamentally flawed” in “virtually every material respect.” It was “a paradigm of how not to manage and work an important counterintelligence case.” For years, the case “suffered from neglect, faulty judgment, bad personnel choices, inept investigation, and the inadequate supervision of that inept investigation, nearly nonexistent follow-up, faulty communication between DOE and the FBI and between FBI-HQ [headquarters] and FBI-AQ [Albuquerque], and a consistent failure to recognize or appreciate the gravity of the case.”
A sorry tale indeed. Is there an indirect link, one inevitably wonders, between it and another recent case, that of Robert Philip Hanssen, the FBI agent who was arrested in 2001 as a highly productive mole for Soviet/Russian intelligence? For years, it turned out, Hanssen had been posting pornographic stories about his wife on the Internet. He had also taken a deep interest in a stripper whom he had met at a topless bar a few blocks north of FBI headquarters, escorted on a tour of the FBI training center in Quantico, Virginia, taken on a two-week holiday to Hong Kong, and brought to his church in an unsuccessful effort to turn her into a devout Catholic.
This bizarre individual, we are asked to believe, did not stand out at all at the Bureau; indeed, he fit in so well that the was repeatedly promoted and rewarded until he became a ranking supervisor in its division of Russian counterintelligence. Yet as far back as 1990, we learn from a recent book about the case by the Washington Post reporter David A. Vise,4 Hanssen’s brother-in-law, himself an FBI agent, had grown suspicious and informed his superiors that Hanssen had a lot of unexplained extra cash on hand; he also told them of his belief that Hanssen was spying for Moscow. At that juncture, the FBI could easily have apprehended Hanssen, writes Vise, “by carrying out a standard probe involving physical and electronic surveillance.” Instead, it did nothing. Hanssen continued in place, feeding secrets to Moscow for another ten years. His true motivation for conducting espionage, as he later explained it, was not a thirst for money but “rage”—evidently entirely justified—at the glaring incompetence of the FBI itself.
Following hard on the heels of the Wen Ho Lee debacle, surely the Hanssen fiasco should have led to a major revamping of the agency. It did not. Learning nothing and forgetting nothing, the Bureau largely confined itself to initiating regular polygraph examinations (!) of its senior officials.
And what, finally, about the FBI’s handling of the case of Zacarias Moussaoui, the man charged with being the 20th hijacker on September 11? On August 16, recall, Moussaoui had been detained on immigration charges after the Bureau was tipped off by a Minnesota flight school that he was eagerly studying how to fly a Boeing 747—but not how to take off or land. The FBI also obtained Moussaoui’s laptop computer, and its field agents in Minnesota, deeply worried that some sort of terrorist hijacking was being planned, urgently sought a search warrant to examine the contents. But in a resounding echo of the Los Alamos investigation, they were turned down—in this instance not by the Justice Department but by their own superiors. According to the Washington Post, “during often heated debates from August 18 to 20, officials at headquarters opposed the request, arguing that investigators could not show probable cause that a crime had been committed.”
In the last analysis, what the Wen Ho Lee case and the Hanssen case and the events of September 11 all teach us is that the FBI may be excellent at apprehending bank robbers and uncovering campaign-finance irregularities and solving all sorts of other forms of ordinary crime. But unless and until it is radically reformed, it will remain deeply unsuited for the very different task now before it: protecting us from the al Qaeda cells that are believed to be in place in this country, apprehending whoever disseminated anthrax through the U.S. mail, and fending off all the unknown unknowns that lurk on the home front during the hazardous war in which we are engaged. It will also remain unsuited for the task of combating the very real and continuing problem of Chinese espionage—a problem made all the harder to address forthrightly on account of the FBI’s botched handling of the Wen Ho Lee affair.
Altering the culture of the FBI is a crucial long-term task; but we are in a race against time, and it is a race we might easily lose.