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74–193 2001

S. HRG. 106–1040

CONTINUATION OF OVERSIGHT OF THE

WEN HO LEE CASE

HEARINGS

BEFORE THE

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT

AND THE COURTS

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

SEPTEMBER 27 AND OCTOBER 3, 2000

Serial No. J–106–109

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

BOB SMITH, New Hampshire

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

ROBERT G. TORRICELLI, New Jersey

CHARLES E. SCHUMER, New York

MANUS COONEY, Chief Counsel and Staff Director

BRUCE A. COHEN, Minority Chief Counsel

SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

CHARLES E. GRASSLEY, Iowa, Chairman

JEFF SESSIONS, Alabama

STROM THURMOND, South Carolina

SPENCER ABRAHAM, Michigan

ROBERT G. TORRICELLI, New Jersey

RUSSELL D. FEINGOLD, Wisconsin

CHARLES E. SCHUMER, New York

KOLAN DAVIS, Chief Counsel

MATT TANIELIAN, Minority Chief Counsel

(III)

C O N T E N T S

WEDNESDAY, SEPTEMBER 27, 2000

STATEMENT OF COMMITTEE MEMBER

Page

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES

Bay, Norman, U.S. Attorney, District of New Mexico, Albuquerque, NM .......... 2

Curran, Edward, Security Chief, Department of Energy, Washington, DC ....... 2

Parkinson, Larry, General Counsel, Federal Bureau of Investigation, Department of Justice, Washington, DC ....................................................................... 2

Robinson, James, Assistant Attorney General, Criminal Division, Department

Justice, Washington, DC ..................................................................................... 2

TUESDAY, OCTOBER 3, 2000

STATEMENTS OF COMMITTEE MEMBERS

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 36

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 35

WITNESSES

Richter, John, Scientist, Department of Energy ................................................... 37

Trulock, Notra, III, Former Intelligence Chief, Department of Energy, accompanied by Larry Klayman, Counsel .................................................................... 51

Vrooman, Robert, Former Counterintelligence Officer, Department of Energy . 49

Wilkins, Ron, Computer Network Specialist, Los Alamos Laboratory ................ 63

Younger, Stephen, Scientist, Department of Energy ............................................ 40

SUBMISSIONS FOR THE RECORD

Barreras, Lawrence, Senior Warden, Cornell Corrections, Inc., Santa Fe

County Correctional Facility, Santa Fe, NM:

memorandum, December 10, 1999 .................................................................. 200

memorandum, January 4, 2000 ....................................................................... 210

Bryant, Daniel J., Assistant Attorney General, Office of Legislative Affairs,

Department of Justice, Washington, DC:

June 22, 2001, letter ........................................................................................ 75

letter to Senator Leahy, June 28, 2001 .......................................................... 278

Capps, Michael H., Deputy Director for Developmental Programs, Defense

Security Service, Department of Defense, Alexandria, VA, letter to Senator

Specter, June 25, 2001 ......................................................................................... 268

Chronology of Significant Events, chart ................................................................ 68

Cline, John D., Freedman, Boyd, Daniels, Hollander, Goldberg & Cline, P.A.,

letter to Robert J. Gorence, Esq .......................................................................... 216

Collingwood, John E., Assistant Director, Office of Public and Congressional

Affairs, Federal Bureau of Investigation, Washington, DC, letter with enclosures to Senator Specter ...................................................................................... 93

Page

IV

Committee on the Judiciary, United States Senate, Washington, DC, Executive Business Meeting:

October 14, 1999, summary and attachments ................................................ 301

November 17, 1999, summary and attachments ........................................... 309

Cunningham, Charles J., Jr., Director, Defense Security Service, Department

of Defense, Alexandria, VA, letter, with attachment, to Senator Specter,

February 14, 2000 ................................................................................................ 264

Curran, Edward J., Director, Office of Counterintelligence, Department of

Energy, Washington, DC, letter, with attachments, to Senator Specter,

January 31, 2000 .................................................................................................. 258

Department of Energy Chronology, May 6, 1999 .................................................. 64

Department of Energy, news release:

August 12, 1999 ................................................................................................ 279

January 19, 2000 .............................................................................................. 287

Deposition of Supervisory Special Agent Craig Schmidt, July 29, 1999 ............. 99

District Court of New Mexico, news release, December 10, 1999 ........................ 282

Failed Attempts by Wen Ho Lee to Enter LANL X Division After His Access

Had Been Terminated, table ............................................................................... 72

Federal Bureau of Investigation, document, August 29, 1995 ............................. 97

Federation of American Scientists, Washington, DC:

Affidavit In Support of a Search Warrant for Wen Ho Lee’s House,

declassified FBI affidavit .............................................................................. 78

Motion for Discovery of Materials Related to Selective Prosecution,

United States District Court for the District of New Mexico, document

appearing on FAS website: ........................................................................... 154

Declaration of Robert Vrooman ....................................................................... 197

Robert Vrooman, President Clinton’s comments on Wen Ho Lee, document appearing on FAS website .................................................................. 294

Freeh, Louis J., Director, Federal Bureau of Investigation, Department of

Justice, Washington, DC, letter to Senator Specter .......................................... 87

Friedman, Gregory H., Inspector General, Department of Energy, Washington, DC, memorandum, April 3, 2001 ........................................................... 250

Gallagher, Neil J., Assistant Director, National Security Division, Federal

Bureau of Investigation, Department of Justice, Washington, DC:

letter to Senator Thompson, November 10, 1999 .......................................... 254

letter to Edward J. Curran .............................................................................. 89

Grindler, Gary G., Principal Associate Deputy Attorney General, Department

of Justice, Washington, DC, and Nicholas M. Gess, Associate Deputy Attorney General, Department of Justice, Washington, DC, memorandum and

attachments, January 12, 2000 ........................................................................... 217

Habiger, Eugene E., Director, Office of Security and Emergency Operations,

Department of Energy, Washington, DC, memorandum, December 27, 1999 207

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, letter to

Attorney General Reno, October 8, 1999 ............................................................ 253

Holscher, Mark, O’Melveny & Myers LLP, Los Angeles, CA:

letter, December 10, 1999 ................................................................................ 124

letter and attachment ...................................................................................... 203

Hoskins, Carlton, memorandum to Senator Specter, September 26, 2000 ......... 74

Jennings, John P., Principal Deputy Assistant Attorney General, Office of

Legislative Affairs, Department of Justice, Washington, DC, letter to Senator Hatch, October 25, 1999 .............................................................................. 255

Kalisch, Eleni P., Special Counsel, Office of Public and Congressional Affairs,

Federal Bureau of Investigation, Department of Justice, Washington, DC,

facsimile ................................................................................................................ 90

Keifer, Richard W., Keifer Group Investigations Inc., Apopka, FL, letter,

with an attachment to Senator Specter, June 26, 2001 .................................... 272

Nuclear Weapons Restricted Data Downloaded by Dr. Lee Onto Portable

Tapes, chart .......................................................................................................... 73

Raben, Robert, Assistant Attorney General, Office of Legislative Affairs, Department of Justice, Washington, DC:

letter to Senators Leahy, Hatch, Graham and Shelby, January 20, 2001 ... 265

letter to Senator Hatch, January 19, 2001 ..................................................... 266

Robinson, James K., Assistant Attorney General, Criminal Division, Department of Justice, Washington, DC, letter to Senator Specter ............................ 88

Sanchez, John S., U.S. Marshal, United States Marshal Service, District

of New Mexico, Department of Justice, Albuquerque, NM, letter to Lawrence Barreras ...................................................................................................... 216

Page

V

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania, letter

to Attorney General Reno, September 18, 2000 ................................................ 264

Steps Required to Down-Partition, Download, and Create Tapes, chart ............ 71

Tenet, George J., Director of Central Intelligence, Central Intelligence Agency, Washington, DC, statement ........................................................................... 249

Trulock, Notra, National Review article, July 31, 2000 ....................................... 290

United States District Court for the District of New Mexico, Albuquerque,

NM:

Response to Defendant Wen Ho Lee’s Motion To Revoke Judge Svet’s

Order of Detention ........................................................................................ 105

Memorandum Opinion and Order ................................................................... 126

Response to Defendant Wen Ho Lee’s Motion To Compel Discovery on

Issues Other Than Selective Prosecution ................................................... 145

Renewed Motion of Dr. Wen Ho Lee for Pretrial Release ............................. 167

Plea and Disposition Agreement ..................................................................... 186

(1)

CONTINUATION OF OVERSIGHT OF THE WEN

HO LEE CASE

WEDNESDAY, SEPTEMBER 27, 2000

U.S. SENATE, SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT

AND THE COURTS, COMMITTEE ON THE JUDICIARY, Washington, DC.

The subcommittee met, pursuant to notice, at 9:03 a.m., in room

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter presiding.

Also present: Senator Torricelli.

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S.

SENATOR FROM THE STATE OF PENNSYLVANIA

Senator SPECTER. Good morning, ladies and gentlemen. We are

proceeding at 9 o’clock this morning because the objections are

being raised about proceeding beyond 11:30, so we wanted to get

started a little earlier. And since this hearing was scheduled, Senator Lott and Speaker Hastert have scheduled a meeting on the appropriations bill for Labor, Health, Human Services, and Education, a subcommittee which I chair, so I am going to have to excuse myself shortly before 11 o’clock. And there is quite a lot of

ground to cover, so we are going to start now.

As you all know, this is, in effect, a continuation of the hearing

from yesterday, and we are going to be looking at a fair number

of issues. At the outset, I think it is important to note the difference in issues between what Dr. Wen Ho Lee did as to

downloading and to the guilt which that evidence shows and to

which he has pleaded guilty, contrasted with the kind of treatment

which was afforded to him. Whether he was treated fairly or not

does not really impact on this guilt, and we all know that in our

society due process requires fair treatment for those who are guilty

of the most heinous offenses.

We are going to want to pursue the details of this early offer

which was referred to by Judge Parker, which we got into yesterday with Mr. Bay to an extent, to examine the specifics as to what

the differences were between what was offered pre-indictment and

what was obtained on September 13.

We are going to get into the details of why action was not taken

against Dr. Lee earlier, with the evidence of downloading back in

1993 and 1994, and then what was found in April 1999 with the

search warrant. Director Freeh testified about this, saying it was

a very complicated case and could not have been acted upon until

2

the indictment in December. We are going to want to explore that

in detail as to why not.

And then the elements of the offense, the question of the intent

to injure the United States, is something we are going to want to

take up in detail as to what constituted that, and then the issue

of the restraints, the manacles, the references to the Rosenbergs,

the erroneous testimony given, and an inference which may arise— I say ‘‘may’’; I haven’t reached a conclusion on it—an inference

which may arise as to pressure to get Dr. Lee to plead guilty.

On our examination of the Dr. Peter Lee case, we had evidence

that the Government wanted a jail sentence there to make him

talk, put him in custody. And unless and until there are some very

solid reasons to explain the treatment for Dr. Lee, that inference

remains a distinct possibility. But that is what these oversight

hearings are about to try to determine.

So with that very brief introduction, we will proceed with the

witnesses, and we appreciate all of your coming. The witness list

has Mr. Edward Curran first, so we will start with you. And in accordance with our practice, we are going to seek to limit opening

statements to 5 minutes, leaving the maximum amount of time for

dialog, questions and answers.

Mr. Curran, welcome, and the floor is yours.

Mr. CURRAN. Thank you, Mr. Specter. I have no opening statement.

Senator SPECTER. Mr. Parkinson.

Mr. PARKINSON. Mr. Chairman, as you know, the Director submitted a lengthy opening statement yesterday, so I don’t intend to

have an opening statement here, but I am happy to answer any

questions.

Senator SPECTER. Mr. Bay.

Mr. BAY. Mr. Chairman, I don’t have an opening statement either. As you know, the statement yesterday was a joint submission

between the Department and the FBI.

Senator SPECTER. Mr. Robinson.

Mr. ROBINSON. I have no opening statement. We are happy to try

to answer your questions, Senator.

Senator SPECTER. Let us start with the statement made by Judge

Parker on September 13, ‘‘Before the executive branch obtained

your indictment’’—he was speaking to Dr. Lee—‘‘on the 59 charges

last December, your attorney, Mr. Holscher, made a written offer

to the Office of the U.S. Attorney to have you explain the missing

tapes under polygraph examination.’’ Now, Mr. Bay, what more did you get on September 13 than an

agreement to explain the missing tapes with the check of a polygraph examination?

Mr. BAY. If I could, Mr. Chairman, I would first like to explain

that Judge Parker qualified that remark at the sentencing hearing

because the lead prosecutor, George Stamboulidis, corrected him,

saying, you know, the Government responded and it is not just like

there is the December 10 letter and nothing else there in the

record. And Judge Parker admitted that there had been this exchange of correspondence, so I want to qualify that first.

Senator SPECTER. What portion of the transcript are you referring to now?

3

Mr. BAY. At one point, Mr.—— Senator SPECTER. Could you be specific?

Mr. BAY. I am sorry. I don’t have the transcript in front of me,

but I could find the reference if you like.

Senator SPECTER. I would like that.

Mr. BAY. OK; if someone could provide me with a copy, I will

look it up for you.

But in any case, what we got in the September 13 plea agreement was that the defendant admitted his guilt to a serious felony.

He pled to one of the counts in the indictment which involved the

downloading of the classified information in an unsecure part of

Los Alamos; that is, in the T Division, not in the X Division where

he had been a scientist.

Senator SPECTER. Did that count require as an element of proof

injury to the United States or aiding a foreign government?

Mr. BAY. It did not, Mr. Chairman. It did, however, require that

he admit that he committed this act willfully and knowing that it

was in violation of the law. So, that was the intent requirement for

that count of the indictment.

So he admitted his guilt and, in addition, he agreed to fully cooperate with the Government for a year-long period, not simply to

one proffer session. And more than that, the plea agreement was

structured in such a way that there were huge penalties that could

fall upon him if he lied. Put another way, there were huge incentives for him to tell the truth.

The plea agreement is written in such a way that not only does

he give us this debriefing under oath over a 10-day period, at least

for 3 days over a 3-week period, but we can also polygraph him.

Senator SPECTER. Well, you had a polygraph on the offer pre-indictment, didn’t you?

Mr. BAY. That is correct. But, you know, I also want to point out

that that offer did get withdrawn because once the indictment

came down, that offer was no longer on the table. We

counteroffered in a letter in early January, asking to do this extensive pre-polygraph interview. The defense said——

Senator SPECTER. Was there any response for their pre-indictment offer before indictment?

Mr. BAY. I don’t think so because what happened—I mean, I actually just don’t know, but I do know that that offer did not stay

on the table. I know that—— Senator SPECTER. Well, Mr. Bay, the offer was made in the context of trying to avoid indictment. So would it be surprising that

the offer would be withdrawn once the indictment was returned?

The point I am coming to is a very direct one, and I think that

is the point Judge Parker made, and that is that in order to try

to seek the avoidance of an indictment, the defense was prepared

to do a fair amount at that stage. After the indictment was returned, there had been a material change in circumstances, so it

wouldn’t be surprising that that offer would be withdrawn. So my

question really goes to whether the Government responded to that

pre-indictment offer before the indictment.

Mr. BAY. Just to clarify with respect to the portion of the record

where the court noted that there had been this exchange between

counsel, Mr. Chairman, that is on page 57 of the sentencing tranVerDate 11-MAY-2000 13:22 Nov 01, 2001 Jkt 074193 PO 00000 Frm 00009 Fmt 6633 Sfmt 6602 E:\HR\OC\A193.XXX pfrm04 PsN: A193
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script, lines 8, 9, and 10, where the court notes, after Mr.

Stamboulidis objects, ‘‘Nothing came of it and I was saddened by

the fact that nothing came of it. I did read the letters that were

sent and exchanged.’’ Senator SPECTER. Well, what in what you just read suggests a

difference between the portion of Judge Parker’s statement that I

read at the outset?

Mr. BAY. Well, what it shows is that there was a response by the

Government, that it wasn’t simply a case where there was a letter

sent on December 10 and the Government, you know, never responded. And you have to keep in mind the history of the discussions between—— Senator SPECTER. When did the Government respond?

Mr. BAY. The Government responded, I believe, in early January.

Senator SPECTER. Well, that was after the indictment.

Mr. BAY. It was after the indictment, but my understanding is

that the defense took this offer off the table once the indictment

came down. They weren’t willing to let their client submit to a

polygraph. They weren’t willing to provide the kind of proffer that

we had been seeking all along.

Senator SPECTER. Well, I could understand that, but I come back

to the suggestion I made earlier as to a material change. If Dr. Lee

could avoid indictment, he was prepared to do certain things. Once

the indictment was returned, then he was not prepared to do that.

I have just been handed a transcript which purports to be at

page 57 where the court says, ‘‘Nothing came of it and I was saddened by the fact that nothing came of it. I did read the letters that

were sent and exchanged. I think I commented one time that I

think both sides prepared their letters primarily for use by the

media, not by me. Notwithstanding that, I thought my request was

not taken seriously into consideration.’’ Did Judge Parker say anything beyond that which would support

your contention that the judge was really not faulting the Government for not taking the deal pre-indictment which was essentially

the same that they got on September 13, 2000?

Mr. BAY. I think in those comments there, the judge realizes that

the parties had discussed this issue and that there had been this

exchange of letters, but the—— Senator SPECTER. Well, this language that I just read back to

you—frankly, Mr. Bay, I don’t see anything there which undercuts

in any way what the judge had said earlier that the deal could

have been obtained pre-indictment with an explanation of the missing tapes and a polygraph.

Mr. BAY. But, Mr. Chairman, that December 10 letter does not

contain an offer to resolve the charges. All it does is to say that

he is willing to provide a proffer and take a polygraph. But this

was an illusory offer. You have to keep in mind the context of the

discussions.

Senator SPECTER. Well, was the judge wrong when he said that

the offer was to explain the missing tapes?

Mr. BAY. I don’t believe that the judge was wrong, but—and let

me say this: I have got great respect for Judge Parker, but I don’t

know if he was aware of all the discussions that had occurred between the parties in the preceding 9-month period. And surely he

5

could not have been aware of the June 21, 1999, meeting between

Dr. Lee and his lawyers and lawyers of the Department of Justice

at the U.S. Attorney’s Office in Albuquerque.

Senator SPECTER. Was Judge Parker told about that after he

made this statement that he was saddened because the Government didn’t take up the offer for the explanation of the missing

tapes and a polygraph?

Mr. BAY. I am not aware—I don’t think he has been told or was

told, but it would be very unusual to—you couldn’t bring the judge

into any kind of plea negotiations before the case was decided. You

can’t do that. That is barred under the Federal Rules of Criminal

Procedure, so we could not have informed him.

Senator SPECTER. I understand that, and I wouldn’t expect you

to. But when he faults the Government and he is about to make

a decision in the case as to what is going to happen to Dr. Lee, at

that juncture you could have told him that, what happened in

June.

Mr. BAY. I don’t know about that, Mr. Chairman. We try very

hard not to do anything that would involve the judge in pre-indictment discussions between the parties. And I think if we tried to do

that, the defense could argue that we were somehow trying to taint

the judge. I don’t think we can involve the judge in pre-indictment

negotiations between parties.

Senator SPECTER. I quite agree with that while he is presiding

over the case. But at a time when he is making a disposition of the

case and sentencing Dr. Lee to time already served and accepting

a plea bargain, at that time you can tell the judge what has happened if there is some material fact which contradicts a strong

stand he took on expressing his disappointment that you hadn’t

taken the pre-indictment deal, which is what he said you ended up

with on September 13.

Mr. BAY. Mr. Chairman, if I had known that the court had these

concerns, I would have wanted to try to address them before he

made the statement. But it is not like he called the parties into

chambers and said, Government, could you tell me what happened

here because I am very concerned? I know that there is the December 10 letter, but could you tell me something about what happened in the preceding 9-month period? Could you tell me anything

about whether or not the Government tried to get Dr. Lee to cooperate and what efforts the Government made?

But the fact of the matter is he never said anything like that.

So when we were sitting in the courtroom at sentencing, his comments came as a complete surprise to us. And we wish, we dearly

wish, Mr. Chairman, that we had had the opportunity to talk to

the court beforehand and to see what his specific concerns were

and to see whether or not we could allay them. But we went

through this mediation process, and part of mediation is you resolve a case in the spirit of mediation. And so to be honest with

you, I was very much blind-sided by the judge’s comments.

Senator SPECTER. Well, Mr. Bay, you don’t have to be meeting

in chambers and you don’t have to have the judge making a specific

inquiry. You can say it in open court at that stage of the proceeding, but let’s go on with what you have talked about.

6

You said you had a year to question Dr. Lee, that there were

penalties involved and there was a 10-day period. Is there any

other difference between what you got on September 13 and what

was offered pre-indictment?

Mr. BAY. Well, we also got some sworn proffers from him on the

day of the plea itself. We got two sworn proffers from him. These

were statements given by him under oath. We got the promise of

his cooperation for a year. We got the sworn debriefings, 10 days’ worth, over a 3-week period. We got a year’s worth of cooperation,

and we got some penalties put into the agreement to guarantee

that he would tell us the truth.

Senator SPECTER. And what were the penalties?

Mr. BAY. Well, the penalties are pretty severe, Mr. Chairman. If

he lies to us, we can prosecute him for false statements, perjury,

and obstruction of justice. In addition, we can move to set aside the

plea agreement. And if that happens, the remaining counts in the

indictment that were dismissed are reinstated.

Senator SPECTER. Mr. Bay, is there any reason to conclude that

you couldn’t have gotten all of that—the year of cooperation, the

penalties, the 10-day briefing, the sworn proffer—had you pursed

the matter pre-indictment?

Mr. BAY. And he pled to a very serious felony, a felony in the

indictment.

Mr. ROBINSON. Mr. Chairman, perhaps I could answer, because

I was there and Mr. Bay wasn’t in the early stages with regard to

the history. I think it is very important to see the correspondence

between counsel and the meetings that occurred between counsel.

And I think it is quite clear this December 10 letter that was sent

was sent the very day that the grand jury was returning its indictment, as Mr. Bay pointed out at the hearing on yesterday. And it

is quite clear that what was envisioned by that letter was very,

very limited, yes or no polygraph to very limited questions without

the ability of the Government to test any of those things.

But the history of the discussions between Dr. Lee’s attorneys

and the Government extended back for many, many months, and

included give-and-take which at various times indicated that Dr.

Lee was willing to provide this information only in exchange for

immunity, at times only in exchange for possible pleas to misdemeanors.

This arrangement, in our judgment, that was worked out as a result of this mediation with Judge Levy was never available before

it was finally resolved as a result of very difficult negotiations brokered by Judge Levy. But they were extensive discussions, and I

know that from early on the Government sought this information

from Dr. Lee pre-indictment; in effect, as the correspondence between counsel indicated, pled for this information from Dr. Lee because it was obviously critical to the prosecution decision as to

whether to proceed and what to proceed on.

There were extensive submissions by counsel that were carefully

examined by the Government. There were several meetings, one in

Albuquerque where Dr. Lee was in another room and counsel back

and forth in an effort to get at this issue. And so the notion that

this December 10 letter was something that, A, was satisfactory or,

B, that the arrangement finally worked out as a result of these neVerDate 11-MAY-2000 13:22 Nov 01, 2001 Jkt 074193 PO 00000 Frm 00012 Fmt 6633 Sfmt 6602 E:\HR\OC\A193.XXX pfrm04 PsN: A193
7

gotiations would have been available before, in my opinion, based

upon the discussions and the correspondence, simply was not possible.

Senator SPECTER. Well, Mr. Robinson, what you have described

is jockeying which goes on where defense counsel seeks to get the

very best deal they can.

Mr. ROBINSON. Sure.

Senator SPECTER. That happens all the time and their positions

change.

Mr. ROBINSON. Of course.

Senator SPECTER. And the moment of truth—just like when the

jury comes back on the settlement of a case, the moment of truth

or the real pressure comes when the indictment is returned. And

that was the time that defense counsel was going to make you their

best offer, and at that time they made you an offer which did not

have all of the elements that you have described about the year of

cooperation and the penalties and the 10-day briefing. But it did

have, at least as Judge Parker stated it, explaining the missing

tapes. And one of the points that Director Freeh made very emphatically yesterday was the very high premium the Government

placed on finding those missing tapes.

Mr. ROBINSON. Right.

Senator SPECTER. And there had to be very substantial value to

finding them 10 months earlier, in December, as opposed to the following September.

Now, you did get one additional element on a guilty plea.

Mr. ROBINSON. We got much more than that. The arrangements

with regard to this December 10 letter, which was a very short letter which envisioned basically an up or down, yes or no, did you

destroy the tapes, did you share them with anyone else—those

were the things they were willing to deal with, and we didn’t get

the details which we had numerous discussion about, about the

consequences of going forward, the ability of the Government to

verify these things, the ability to deal directly with Dr. Lee.

These were all subjects of extensive discussion, and the correspondence, I think, speaks volumes about the efforts of the Government. And you are quite right. Defense counsel obviously tries—

to the extent that they can, they would like to get immunity. They

don’t want their client subject to additional exposure.

But what you have in this situation is if, during the debriefing

process, Dr. Lee provides information that is false—and we are

going to obviously do everything we can to verify everything we

learn and to probe all of the elements of it—he can be right back

to where he was before the plea, the way this worked.

I am confident—and you can ask Mr. Holscher if he comes here

to testify—that this was not an arrangement that they were ever

willing to engage in. And we had extensive discussions in an effort

to try to get this information, obviously, which was critical information.

Senator SPECTER. Well, we will ask Mr. Holscher and Mr. Cline.

We have them tentatively scheduled to come before the subcommittee on October 11. I think we have pursued this question

about as far as we can usefully.

I have a question which remains as to your——

8

Mr. ROBINSON. I want to make one other point here. The December 10 letter also makes a representation we know not to be true

about the tapes never leaving the X Division, and this is the dialog

that has been back and forth in which we have sought information,

got representations. I mean, counsel are doing the best they can,

but they are obviously doing it based upon the information their

client provides.

And so we had very serious concerns about the reliability of the

information that we were getting, and I think it is important to

evaluate the whole series of correspondence and the meetings that

occurred. And I can tell you I sat in one meeting with counsel for

Dr. Lee in which I said we want to learn everything we can about

Dr. Lee’s intent. We are not interested in charging Dr. Lee with a

crime that he didn’t commit, and we want to know whatever you

can provide on that subject.

And they obviously made—and it is understandable—a tactical

decision that they didn’t want to share certain information with the

Government. They wanted to save it for trial, and we weren’t able

to work this out and the stakes obviously were high to their client.

I think ultimately it took a very skillful effort by Senior Circuit

Judge Levy between the parties to come up with this final agreement which I think does give us the best hope for getting the kinds

of answers that will address the national security concerns that we

all share here about these tapes, their whereabouts, and whether

they were exposed to anyone else. And that has obviously been a

critical matter.

The correspondence makes it clear and the meetings make it clear that this was the $64,000 question about where these tapes— why they were created, where they were, did anyone else see them.

If they were destroyed, as represented, how were they destroyed,

how we could verify that. Those are all questions that I think we

all are very interested in knowing the answer to.

Senator SPECTER. Well, as I had said earlier, I don’t think it

would be useful to pursue the matter beyond this. I do not see the

import of a yes or no. This is a negotiation and the defense offer—

it seems to me you had the opportunity to come back and say no

on your terms, but if we get A, B, C, D and E, we will agree with

it.

Mr. ROBINSON. We had been doing that for months and months.

I mean, that dialog had occurred. It continued to occur.

Senator SPECTER. Well, that is true. Now, I am repeating myself,

but on the day of indictment, it is all different. But at any rate,

the judge, Judge Parker, who is right there—we are going to have

Mr. Holscher and Mr. Cline, and we will ask them the questions

you have posed. But Judge Parker lays it rather flatly.

Mr. ROBINSON. Judge Parker didn’t have the information about

the meetings, the correspondence, and the dialog. Just as Mr. Bay

points out, Judge Parker wasn’t involved in this process. It was

Judge Parker who, in effect, urged the parties from the time he got

into this case to engage in mediation to resolve the issues of both

bail and disposition of the case.

And, in effect, what happened is he encouraged us to do this. We

did it in good faith. We achieved a result which we think will advance the national security. And, frankly, with all due respect to

9

Judge Parker, the notion that he put us in that position and encouraged us to do it, we do it in good faith and reach a result— and he made a comment, I think, without the benefit of all the information concerning the efforts that had been made by the Government, which are extensive, to try to get answers to these questions—extensive meetings, extensive correspondence, extensive discussions.

And it wasn’t easy even when we got the parties together. These

negotiations broke down on a number of occasions. We learned

things at the 11th hour that were very disturbing to us about copies. This was something that was difficult and carefully negotiated

in good faith, and as a result of Judge Levy’s efforts we achieved

a result at the end that we think is in the national interest.

Senator SPECTER. I understand that. That is essentially what

Mr. Bay said. But when Judge Parker makes the statement that

I am sad and it could have been resolved a long time ago, that was

an opportunity for the Government to stand up and say, no, it

couldn’t have, Judge, and to give all the reasons you have given.

I have been at a few of these proceedings, and when a judge says

something which is material and is bothering him and he is wrong,

then the Government tells him so.

Mr. ROBINSON. Well, he said that after the deal had been made.

The agreements had been signed. We were putting this on the

record in court. There was a meeting, as I understand it—— Senator SPECTER. Well, the judge had to accept it, didn’t he?

Mr. ROBINSON. Well, he didn’t have to accept it, but—— Senator SPECTER. Well, he had to make a ruling as to whether

he would accept it. Of course, he did.

Mr. ROBINSON. Sure, he did. At the end of the day, he did.

Senator SPECTER. He had to accept it if it was going to be final.

So this is a proceeding to get the judge to say yes or no to the plea

bargain.

Mr. ROBINSON. Right, and we were in favor of the plea bargain

at that point. And he did approve it, and these were statements

that he made, frankly, afterwards.

Senator SPECTER. OK, Mr. Robinson. Why not say to the judge

all the explanations you have just tendered here when he says he

is sad and, in effect, you could have gotten the same deal last December? Why not tell the judge he is wrong? This is not an immaterial factor. Why not tell him?

Mr. ROBINSON. Well, I wasn’t in the courtroom at the time, but

I have been in courtrooms where I have sat there where judges

have ruled and they are making these comments for the galleries

at this juncture. And I think that is what was happening, but the

Government, as I understand it——

Senator SPECTER. You think Judge Parker was making that comment for the galleries?

Mr. ROBINSON. Galleries, including the Government, obviously.

He made these statements in court——

Senator SPECTER. What do you mean, ‘‘the galleries,’’ Mr. Robinson?

Mr. ROBINSON. Well, obviously he was making this public statement about this matter. I think the fact that Judge Parker made

this statement was a little unusual under the circumstances, his

10

comments with regard to this matter. I think it was a little unusual.

Senator SPECTER. Well, then he went beyond that when he

talked about an apology. If he was moving from a factual basis

where he was incorrect, the Government had a responsibility to

correct him, to say so.

Mr. ROBINSON. Well, I do understand that the Government has

had a meeting with Judge Parker after this matter and has had

discussion of a number of his comments in his chambers.

Mr. BAY. Mr. Chairman.

Senator SPECTER. Well, that doesn’t bear on the underlying question as to whether the Government could have gotten the same

deal in December if you had pursued it. That doesn’t bear on that

at all.

Mr. ROBINSON. I don’t have any doubt in the world—and the

record, I think, demonstrates it to a fare thee well—that the Government could not have gotten this arrangement any time before

it was negotiated in this very extensive way over this very extensive period of time at the request of Judge Parker.

Senator SPECTER. Well, our next step is to talk to Mr. Holscher

and Mr. Cline, but let me move on to another subject, and that is

the subject about—— Mr. ROBINSON. Senator, I am sorry to interrupt, but I just want

to make sure—I do understand, I am told—I wasn’t there—that the

attorney did object or stand up to object in connection with this.

Perhaps Mr. Bay can enlighten us on your point of whether the

Government tried to say anything in response to this.

Senator SPECTER. We would be interested to hear about that, Mr.

Bay.

Mr. BAY. That is correct, and this is in the record, sir. Mr.

Stamboulidis did stand up—— Senator SPECTER. What page are you on so I can follow you?

Mr. BAY. Page 57, lines 4 through 7. On line 1 on page 57, Judge

Parker says, ‘‘At the inception of the December hearing, I asked the

parties to pursue that offer made by Mr. Holscher on behalf of Dr.

Lee, but that was to no avail.’’ Mr. Stamboulidis stood up and objected. He said, ‘‘Your Honor, most respectfully, I take issue with

that. There has been a full record of letters that were sent back

and forth to you and Mr. Holscher withdrew that offer.’’

So we did attempt at the hearing to correct the court’s impression.

Senator SPECTER. But then the judge goes on to say, ‘‘Nothing

came of it and I was saddened by the fact that nothing came of it.

I did read the letters that were sent and exchanged. I think I commented one time that I think both sides prepared their letters primarily for use by the media and not by me. Notwithstanding that,

I thought my request was not taken seriously into consideration.’’

So when Mr. Stamboulidis makes the comment, the judge comes

right back and doesn’t change his position.

Mr. BAY. But, Senator Specter—and I know you have the correspondence that we produced for your committee, and when you

go through it, for example, there is a letter dated August 4, 1999,

where the U.S. Attorney at the time says, ‘‘I assure you that I have

absolutely no desire to prosecute an innocent man. I have used

11

what tools prosecutors have to try to gather all the facts. Those

facts establish your client’s guilt. If additional facts that only he

can provide would explain his actions and point to his innocence,

I would sincerely like to know that before embarking on a course

of action that will have a profound impact on many people. Once

again, I extend to you the invitation to have your client tell his side

of the story.’’ And it continues, ‘‘If you let me know soon whether he will accept the invitation, I can be available for his interview or grand

jury testimony with very little advance notice. I will not present

the matter for indictment this week, but I simply cannot delay it

indefinitely.’’ These were the kinds of communications that were going back

and forth. The Government all summer long kept asking for the

participation, and this was even after the June 21 meeting where

Dr. Lee gets caught in this misrepresentation. A month later, you

have got this letter dated September 3, 1999, where the U.S. attorney at the time asks for detailed information, ‘‘succinct, verifiable,

factual information responding to my concerns by Monday, September 13, 1999.’’ And we know that proffer was never provided. But what we

asked for there was information regarding the tapes. ‘‘We know

that Dr. Lee copied both classified and unclassified information

onto 6150 tape cartridges. We know that he didn’t have a tape

drive on his computer. We found some of the unclassified cartridges

in his T Division Office when it was searched earlier this year, but

we do not know what happened to the tapes containing classified

information. We want to know the complete chain of custody for

the tapes from the moment they were created until today. We want

to know how and where he created them, where they have been

physically located over the last 5 or 6 years, who other than Dr.

Lee knew of their existence, and why no one in the X Division was

told about the tapes. We want to know whether he gave the tapes

to a third person. If he did, we want to know to whom, when,

where, how, and why. If the tapes were lost or destroyed, we need

those details as well.’’

This is indicative of what we were trying to learn from Dr. Lee.

This was indicative of the kind of cooperation we sought from him

in the pre-indictment period, a period which lasted for 9 months.

He had 9 months to try to cooperate with the Government, and at

the last minute, on the day that the indictment is returned, he is

sending us a fax saying, you know, stop the train, I am ready to

talk now, where even that letter contains a misrepresentation, as

Mr. Robinson pointed out.

Senator SPECTER. Well, when you talk about a prosecutor not

wanting to go after an innocent man in the opening part of your

statement, I can understand that. It doesn’t bear on the question

of the tapes. When you read in detail this letter from September

3, 1999, there is no doubt that U.S. Attorney Kelly is posing the

questions which you want answered. But all of that, with all respect, begs the question as to whether the offer that the defense

made right before the indictment might have been expanded to all

of the items that you have explained here today, all of the reasons

you have given. And the judge’s statement still stands.

12

To repeat for the third time, I think we have explored this to the

extent we can. And we will pick it up with Mr. Holscher and Mr.

Cline, but the dominant statement remains the one on the record

by the judge that you could have gotten this deal a long time earlier.

Let me move, as I had said earlier, to the question acting on the

downloading, and let’s pick up with you on this, Mr. Curran. There

were indications that the Department of Energy had noticed massive downloading by Dr. Lee back in 1993, and then again in 1994

there was extensive downloading noted by the Department of Energy by Dr. Lee.

What were the specifics of that downloading?

Mr. CURRAN. Sir, I have no knowledge of that downloading. My

tenure at the Department of Energy started in April 1998.

Senator SPECTER. Well, does anyone here know about the details

of that downloading, Mr. Parkinson?

Mr. PARKINSON. We at the FBI learned about the details of the

downloading in 1999 through the detailed forensic work that we

did last year.

Senator SPECTER. When in 1999, Mr. Parkinson?

Mr. PARKINSON. It began primarily in March with the search of

his office and then continued from that point forward.

Senator SPECTER. Well, Mr. Curran, we need somebody here

from the Department of Energy who can explain that because the

records show that the Department of Energy did know about it.

They also show that the FBI did not know about it, and that is a

question we have.

But let’s move to April, Mr. Parkinson, a question which I posed

to Director Freeh yesterday. There were a lot of activities by—well,

backing up to December 21, where internal memos show that Secretary of Energy Richardson had contacted the FBI—and I believe

Director Freeh had expressed concern about the pending release of

the Cox Committee Report—what were the specifics of that, Mr.

Parkinson?

Mr. PARKINSON. I don’t know the specifics of that, Mr. Chairman,

and maybe one of my colleagues can assist me in that, if you could

indulge me.

Senator SPECTER. Take your time, Mr. Parkinson.

Mr. PARKINSON. We will explore that and get back to you. I have

a very extensive chronology of all relevant events here. There is no

indication in my briefing materials that there is any kind of correspondence between Secretary Richardson and the Director on the

21st.

Senator SPECTER. Well, there is a memo from Mr. Craig Smith

to the Director dated December 21, 1998, which references Secretary Richardson’s concern about the pending release of the Cox

Committee Report.

Mr. CURRAN. Sir, can I perhaps add to that?

Senator SPECTER. You may.

Mr. CURRAN. If it is the conversation between Secretary Richardson and Director Freeh, we had planned action against Mr. Lee

upon his return from Taiwan which led up to the ultimate interview and polygraph of Mr. Lee on December 23.

13

I remember being beeped in Washington, DC, by Mr. Kilroy, who

is the Unit Chief of the China Section, where this activity that we

were planning to do which was fully coordinated with the FBI

headquarters in Albuquerque was given in a note to Director

Freeh. Director Freeh had a question on that note. My conversation

with Mr. Kilroy resolved that issue.

That same day, I saw Secretary Richardson and he told me he

talked to Director Freeh and everything was on track for December

23. So if that has something to do with it, I know that conversation

did take place.

Senator SPECTER. That conversation occurred on December 21?

Mr. CURRAN. It would have been shortly before the activity. I

know it was around that time. I can’t remember the specific—— Senator SPECTER. Well, the memo from Craig Smith to the Director specifies concern about the pending Cox Committee Report.

Mr. CURRAN. Well, I have no knowledge of the Cox Committee

Report. I know in my conversations with the unit at that time

there was an issue with Director Freeh. He misunderstood the information in there. That was immediately corrected.

Senator SPECTER. What did Director Freeh misunderstand?

Mr. CURRAN. Again, I don’t like to speak for Director Freeh, but

it is my understanding at the time that when the note went up to

Director Freeh explaining what was going to happen on December

23, he misunderstood the note, indicating he did not want DOE to

take that action. That then was confirmed and later went up—— Senator SPECTER. He did not want DOE to run a polygraph?

Mr. CURRAN. There was a whole series of events that were going

to take place. My understanding is he misunderstood that the unit

was agreeing with it. He thought they were disagreeing with that

activity, and that was the misunderstanding. That was immediately clarified.

Senator SPECTER. When you say the unit, you mean the FBI

unit?

Mr. CURRAN. Yes; the FBI unit that was running this investigation, yes. And that was immediately clarified, and I spoke to Secretary Richardson upon the return that day. He said he had spoke

to Director Freeh and everything was fine. I don’t know of any conversation about a Cox Report conversation.

Senator SPECTER. The polygraph was taken on December 23. The

reports are, Mr. Parkinson, that there was some difficulty between

the FBI and DOE on having access to the tapes. What did happen

with respect to that?

Mr. PARKINSON. There was some difficulty, Mr. Chairman, and

particularly on getting timely access to the results of the polygraph. And, frankly, I think the Director has indicated that this

was the place where the FBI should have pushed harder.

We didn’t get the polygraph results until late January from DOE,

all of the results that could be analyzed by an independent

polygrapher. And so several weeks went by after the December 23

contractor polygraph done by the DOE contractor before our

polygraphers could independently assess the results.

And I think there was probably some brandishing on both sides,

but I think we have stated, and I will state again, we should have

pushed harder to make sure that we got those in a more timely

14

fashion. And when we did get them, they were immediately reviewed by our own polygraphers as well as another independent

polygrapher at DOE’s initiative, and that, of course, led to the results that we have testified about that indicated that he did not

pass the polygraph. At best, it was inconclusive.

Senator SPECTER. When the results announced by Wackenhut,

who ran the polygraph on December 23, 1998, were disclosed, there

was, in fact, a decision by the FBI field office to close the investigation, right?

Mr. PARKINSON. It was under consideration. They had not

reached the decision.

Senator SPECTER. Well, had they at least recommended the investigation be closed?

Mr. PARKINSON. They had recommended consideration of closing

it following the January 17 interview with Dr. Lee. That, of course,

was a snapshot in time which changed dramatically when we actually did see the Wackenhut polygraph results and did the independent analysis.

Senator SPECTER. Why have someone like Wackenhut run the

polygraph when the FBI is so much more proficient at it?

Mr. PARKINSON. I think that is a fair question, and we were

working jointly with DOE. We knew that they were going to do

this, and on the ground they concluded that we would permit DOE

to go ahead and conduct the polygraph.

Mr. CURRAN. Sir, could I add to that, because I am the one who

made the decision to polygraph the person? My position as an FBI

employee assigned to DOE as the counterintelligence person—I was

obviously very, very concerned about this entire case that was

being worked. Through coordination with the FBI, the interview

that we conducted was a cursory interview. It was an interview to

suspend him from access to the X Division upon his return from

Taiwan.

I asked my people to ask him if he would voluntarily take a polygraph. It would be noncoercive, nonthreatening, and the bottom

line in all this activity was not to compromise the FBI investigation

in this thing. The FBI investigation was coming to a conclusion. I

had an immediate decision. This person had just left the country.

He had been out of the country for 4 months. He is the subject of

a full FBI investigation. There is good indication that he was aware

of the FBI investigation.

I did not know where he was, who he was talking to. I had assumed the worst at that point, and that is when we made the decision that upon his return he would not have access to the X Division. And we suspended his clearance without any prejudice whatsoever. Because the FBI was going to come in and do their interview and polygraph, there was a good likelihood that he could have

turned down a polygraph for the FBI because you have brought it

to a different level at this point.

I had asked that he be polygraphed so if that did occur that I

have some idea whether this person is telling the truth, not telling

the truth, whatever, and not faced with a problem where I have a

significant breach in security and I have no clue where it was coming from.

Senator SPECTER. Well, let’s move ahead here to——

15

Mr. PARKINSON. Mr. Chairman, if I might, I just want to quickly

add one point. There was a very good investigative reason to allow

the DOE polygraphers to do the initial polygraph, and that is we

were concerned that even though there was talk about the investigation, we didn’t have reason to think that he knew very much

about what we were doing.

And the polygraph on the 23rd coincided with his return from

foreign travel as well as a five-year reinvestigation at DOE. So in

an effort to be nonalerting to the extent that we could, it made

sense to do it in the ordinary course. And, of course, if the FBI had

come in and done it, that certainly would have been more alerting.

Senator SPECTER. Well, OK. You have the December 23rd polygraph. You don’t get the results. You have conceded that you

should have been more aggressive; faults on both sides; polygraph

incorrectly read. You finally found out about it on January 17 that

he did not pass the polygraph, or at least inconclusive, but the indicators were that he did pass the polygraph.

Then Dr. Lee, without going into the details—we are going to

run out of time and I want to yield in just a minute here to Senator

Torricelli, who has consented to my questioning beyond our customary 5-minute period. A lot of erasing by Dr. Lee. He is not terminated until March 8, 1999. A search warrant is not obtained

until April. In April, you go in and you find the diary that they testified about yesterday, so you know that there is a lot of

downloading which he has done at that time.

Now, it takes from early April 1999 until December 1999 to bring

an indictment, an indictment which carries a life sentence, and a

request to the judge that he hold this man in solitary confinement.

We will get into the details of that later.

I understand it is a national security case and I understand

there are a lot of factors to be considered, and I didn’t have the

chance to get into the details with Director Freeh yesterday. But

why does it take from early April to the end of December when you

have a matter where the Government contends there are crown

jewels involved and that Dr. Lee can transmit this information to

someone else and the most extraordinary steps are taken to stop

him from talking to anybody, including his wife? What is the justification? Could that not have been expedited?

Mr. Parkinson.

Mr. PARKINSON. Let me begin, and my colleagues can add to this,

but as the Director pointed out yesterday, which is absolutely accurate, this was an extraordinarily complicated case to put together.

I think we knew the broad outline in the spring after we did some

initial forensic analysis, but the forensics and the working with

DOE to figure out what, if anything, we could expose in a public

trial was an extraordinarily complicated and difficult process.

Senator SPECTER. Well, how long did the forensic evidence take?

Mr. PARKINSON. The forensic examination continued for well over

a year. Even after the indictment, we continued to do forensic

work.

Senator SPECTER. Well, you didn’t have the meetings with Mr.

Berger and the other principals until when, early December, late

November?

Mr. PARKINSON. December 4, 1999.

16

Senator SPECTER. December 4. What I would like you to do, Mr.

Parkinson, without taking the time now is to give the subcommittee a detailed chronology of what you did. We want to know

exactly what you did and how long it all took.

I am not unfamiliar with criminal investigations, and neither is

Senator Torricelli or Senator Sessions or the others on the subcommittee. We want to know what you did and why it took so long

to have this emergency, to confine Lee the way you did.

I am going to come back to the classified information Act, CIPA,

and others, but let me yield at this point to my distinguished colleague, Senator Torricelli.

Senator TORRICELLI. Thank you, Mr. Chairman. I am afraid I am

a little under the weather, so you are all going to be spared the

full extent of my interest in the case. But let me try for a few minutes to do the best that I can.

Yesterday, Senator Leahy noted that many people on the committee were in the extraordinary position of having been critical

some months ago that the Government was not sufficiently aggressive in dealing with this case and now we return to be critical that

the Government was too aggressive in aspects of the case. I am one

of those people.

Initially, in what I now regard as an unfortunate exchange with

the Attorney General in private session, I was very critical that a

wiretap was not granted in dealing with Dr. Lee. While my tone

may not have been appropriate, I believe my conclusion was. It

should have been granted, and I believe the FBI should have put

greater resources on the case. In hindsight, I think with regard to

the initial investigation of Dr. Lee almost every division of the U.S.

Government at every level of responsibility probably would have

handled the case differently. It is not given to us to do that again,

but to learn from the experience.

But now I return with a different perspective in what is a remarkable bipartisan concern for how the case was handled after

Dr. Lee was detained and prosecuted, and what I think has

touched an extraordinary raw nerve in the country. I do not believe

from my own cursory review of the evidence that Dr. Lee was innocent. Even if you accept the single charge to which he pled—it is

serious, it should be dealt with seriously and the Government

should respond to it seriously—I am not at all convinced that that

is all that he is guilty of. Nor do I have much sympathy for the

fact that he was vigorously prosecuted and pursued. The anecdotal

evidence suggests inappropriate contacts. The consequences to the

United States are so enormous that I think a vigorous prosecution

was warranted.

But let me get beyond the prosecution to my new concerns, those

I amply stated in the past when we revisited this case with concern

that the Government wasn’t dealing with it sufficiently, to what is

now a remarkable undercurrent in this Congress.

I will begin it with a friend of mine who is a senior official at

the Justice Department who went recently to a conference of young

prosecutors and returned saying he was unnerved and concerned

that there was a ‘‘win at any cost’’ attitude, that sometimes the

Constitution seemed like an inconvenience, a sense that the Government held a monopoly on truth, and that the professional

17

boundaries of our profession and the traditions of the Justice Department were not respected as they might have once been respected.

Dr. Lee, to me, is not a terribly sympathetic figure, given some

of the things that he even now has admitted that he did. But that

shouldn’t change how he is approached by the Government. There

are several things about this case that are inexplicable and should

have consequences.

First, Mr. Parkinson, I do not regard a citizen lying before a

court of the United States an an official of the United States lying

before a court of the United States on the same scale. The Government being untruthful and misleading is not a threat to a case, but

to our entire system of justice. The people of the United States

have a right to expect that, without exception, the Government will

be truthful and accountable when under oath and dealing with a

case. Sometimes, we forget this is not the Department of Prosecutions; it is the Department of Justice. The only Government stake

in the outcome is fairness, not the scorecard.

And so when I conclude my opening remarks, I would like your

response to how the Bureau intends to proceed in this individual

case where it appears by statement of a Federal judge that he was

not dealt with forthrightly, if not truthfully. That matters.

Second, Mr. Robinson, it is not enough that we regard ourselves

as a civilized Nation because we do not force things under people’s

fingernails if we simply replaced it with new, sophisticated methods of using incarceration as a means of intimidation. Incarceration

of a person who has not yet faced justice is to prevent flight, or the

damaging release of information in his case. It is not to psychologically break an individual, put him in untenable circumstances

so that he might admit to something that he did not do or otherwise wear upon him. That is, in my mind, unconscionable against

a guilty person, no less one who has not yet had a case proven

against him.

Yesterday, this was reviewed at length. We need not do so again,

but I think the simple truth is there is not an adequate explanation for keeping the lights on in a cell all hours of the night.

There is not a reason for shackling an individual in these circumstances, in private moments, within a jail, given his history.

There is not a reason to deny reading materials or to not be more

accommodating with family visits. There are bounds of reason.

If I thought that Dr. Lee was the only person now facing justice

who dealt with these circumstances, I would be concerned, but I

would think a lesson had been learned and we would move on. But

I return to my friend who went to a Justice Department conference, to be shaken himself. These tools can be misused. This is

extraordinary power.

My sense increasingly of the Justice Department is that it is run

from the bottom up, not the top down, by people with lesser experience who, like all of us in early stages of life, have excessive enthusiasm for our objectives rather than the wisdom of experience and

age. Some of that, I believe, is involved in these circumstances.

I find this a difficult case. I find myself like anyone conflicted,

because I believe that Dr. Lee did a great disservice to the United

States. But it is not Dr. Lee I fear alone. You can be in law school

18

no more than a few days, in your first lessons on the American

Constitution, when you discover to your great surprise that the

American Constitution seems primarily designed to protect the

American people from the American Government. The moment we

begin to take some of these restraints less seriously, we are changing the nature of our country. That, Mr. Robinson, is my major concern coming out of this case, and I am concerned about it.

That leads to something I have never understood about the Department, and it is really the question I ask of Mr. Parkinson. If

a citizen of the United States were to go before this Federal judge

and lie, I understand the consequences. They would be prosecuted,

and they should be.

I understand in private industry, or even in American politics, if

you wage an effort and you fail and you are found to have dealt

with it inappropriately, the consequences are on you professionally.

I don’t understand what happens in the Department. There were

enormous misjudgments here by line prosecutors. A Federal judge

asked that the circumstances of Dr. Lee’s confinement be altered.

It did not happen for 9 months. What are the professional consequences of this within the Department to ensure that people really respect the guidelines of the Department, and respect you and

Ms. Reno?

I know you fairly well. I know Ms. Reno better. If someone had

told you that a Federal judge had said, alter these circumstances

of confinement, it would have happened that minute. Somebody

didn’t. In this Department, how does that work? What are the consequences of someone who didn’t bring that to your attention and

didn’t respect the judge and did misuse that power, misused an

enormous power, admittedly not putting anything under anybody’s

fingernails, but using a 21st century version of it?

Those are my concerns, and at this point I would like to open it

to Mr. Robinson and Mr. Parkinson to at least answer specifically

the questions I posed, if not the general proposition of what I presented.

Mr. PARKINSON. Let me begin, Senator Torricelli, since the first

question related to our agent, and I assume you are talking about

Agent Messemer who testified, the case agent on this case. I think

it is very critical, in fairness to everyone at the outset, to put this

in proper context.

He did not say he lied. The judge did not say he lied. And even

though it is being portrayed in some press accounts as he is a perjurer, that is simply not the case, at least not at this stage in time.

He said he made an honest mistake. The judge did not take issue

with that characterization at any point in these proceedings. I

think it is important to keep in mind that he was dealing with

enormously voluminous amounts of material. He was on the stand

for probably literally hours and he made a mistake, and that is

what he says.

Now, it was an important mistake and it is something that we

take absolutely seriously. The Director emphasized that yesterday.

It had a consequence to this case. It undermined the prosecution

because even if it was an honest mistake, it was on an important

fact and it undermined the credibility of the lead case agent. So I

don’t want to minimize the conduct and the mistake that he made.

19

But I think it is fair to him, in particular, to let this play out and

see what the conclusion is.

Senator TORRICELLI. What were the judge’s operative words in

characterizing his testimony?

Mr. PARKINSON. The judge—and maybe Mr. Bay can help me

with the transcript itself, but he, as the Government pointed

out——

Senator TORRICELLI. I think the word was ‘‘misled,’’ was it not?

Mr. PARKINSON. Mischaracterization or erroneous testimony.

Hold on. I can probably lay my finger on it. This is from the judge’s

order: ‘‘During his recent testimony, Agent Messemer admitted

that incorrectly testified earlier.’’ That was the phrase that he

used.

Senator TORRICELLI. Admittedly, Mr. Parkinson, ‘‘incorrectly testified’’ is this side of a lie, but it is on the other side of what is

acceptable by a representative of the U.S. Government.

Mr. PARKINSON. Well, even representatives of the U.S. Government sometimes make mistakes. But this is an important thing,

and for the lead case agent he should have had that right. I don’t

think there is any question about it, and nobody is shrinking from

that. And we are following up. This has been referred for investigation, not by the Criminal Division at this stage but by the Office

of Professional Responsibility, which is—— Senator TORRICELLI. Within the Bureau?

Mr. PARKINSON. Within the Bureau. We take this very seriously,

and I don’t quarrel at all with your comments about the nature of

the Government testimony and agents of the U.S. Government. It

is qualitatively different for any Federal agent of any sort, or Federal officer of the court, to make any kind of a false statement before the court. While we ought to take it seriously even if it is a

citizen who is not a Federal employee, it is qualitatively different

and we recognize that.

I will say this, that Director Freeh has had many initiatives

since he became Director, and I can’t think of any initiative that

has received more attention from him than ethics. He has incorporated ethics training at Quantico, and our entire training system

is devoted in large part to the teaching of ethics and devotion to

the Constitution, and to demonstrate to everybody who works for

the FBI that the process is more important than the result.

Sometimes, bad guys get away even, but that is no reason to

shade testimony, or in particular obviously it is not any excuse to

make any calculated misrepresentation. But I think it is important,

having said that, for the process to play out. I know Agent

Messemer has been condemned in a lot of quarters as a liar, and

I think that is flatly unfair to him and I think we need to keep that

in context, and we will see how that plays out.

Senator TORRICELLI. I think that is helpful. I also agree that I

think Mr. Freeh has brought a new level of professionalism to the

Bureau, and I think that is admirable. I nevertheless simply leave

this exchange with the thought that I don’t know this agent. He

may have done great service to our country for which we would be

grateful, but we also, like the law itself, administer the Government by precedent. And the precedent of how this case is dealt

with is important.

20

He should not be made an example of if he is innocent or if it

was an honest error, but I forget the operative word again—

misstatement or mischaracterization, whatever the operative word

may have been, is also not an acceptable standard, to which I know

you agree.

Mr. Robinson.

Mr. ROBINSON. Well, first of all, let me fully agree with your

statements about the fact that Federal prosecutors have enormous

power, and with that comes enormous responsibility. And I think

we have an obligation to continue to remind particularly new prosecutors that in appropriate cases a declination, saying no, frankly,

to our friends occasionally from the FBI on intrusive investigative

activities if there is a feeling that there is not probable cause—

those are obligations that Federal prosecutors have. It is something

that I feel strongly about.

I have Justice Sutherland’s quotation from Berger v. United

States in my office about the extraordinary role of the Federal prosecutor. I think we have to continue to try to make it clear that a

‘‘win at any cost’’ attitude is not the kind of attitude the American

people want in their prosecutors, although I must say occasionally

with the feeding frenzy that occurs on high-level, sophisticated

cases, you know, the pressures are there. And I think that we have

to be vigilant at all times with respect to it, and that message

needs to come down.

Winning cases is not unimportant, but doing the right thing is

more important, and we need to remind people of that and get the

message out among the U.S. Attorney community and Federal

prosecutors as well. And I think most Federal prosecutors believe

that, believe it strongly. And when we have exceptions to it, I think

they need to be dealt with, and dealt with in a way that makes it

clear that that is the message.

Senator TORRICELLI. That is a little bit of what I wanted to understand. This is, after all, an oversight committee, not an investigative committee, and it is part of what I wanted to understand

about the Department. In fairness to the line prosecutors involved,

I will not raise their names or circumstances, but a series of errors

are made, allocations of resources. A case collapses on what I think

should have been the full impact based on the evidence that I have

seen. A judge is angered and believes he was not dealt with honestly. There were real mistakes of judgment. They can be made by

anybody. Here, they are compounded to enormous national consequence, undermining confidence in the Department, and it cost

an important prosecution.

Without speaking of any of the individuals, how do you as the

head of a division of the Department—is this just dealt with by notations in a personnel file? How does this impact a person’s career?

The seriousness with which a person handles their responsibilities

in the future—other prosecutors in the Department, I am sure, are

watching about the accountability of employees in the Department

when they make mistakes of this magnitude.

Mr. ROBINSON. I think it is very important, however, for us not

to do here what we are urging young prosecutors not to do. I mean,

we are at a stage here where I think that we need to fully underVerDate 11-MAY-2000 13:22 Nov 01, 2001 Jkt 074193 PO 00000 Frm 00026 Fmt 6633 Sfmt 6602 E:\HR\OC\A193.XXX pfrm04 PsN: A193
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stand the facts, and there have been facts thrown around, it seems

to me, including facts about the detention that are——

Senator TORRICELLI. I agree with that. That is why this is a theoretical question. I am not applying to anybody.

Mr. ROBINSON. Right; well, obviously, what all lawyers have and

Federal prosecutors have is their reputation with Federal judges,

with the defense community, with the public, with their supervisors. For me, that has always been enough, and I think for most

lawyers it is enough. But that isn’t where it stops. Obviously, there

is the Office of Professional Responsibility referral and investigation. That is no fun for anybody even who gets vindicated at the

end of the day.

Congress, as we know, saw fit to make it clear with regard to

McDade that Federal prosecutors are answerable to every bar that

they are involved in, so there is the State bar disciplinary process.

An angry Federal judge upset with you, with whom you have to

practice for the rest of your life, is a very serious matter. They also

have sanctionable authority. So there are a whole host of matter,

including if one were to engage in criminal activities as a Federal

prosecutor, that can be implicated as well. There is the media attention and all that.

So it seems to me Federal prosecutors are fairly significantly

scrutinized in the scheme of things, and I think the scrutiny is

healthy for people who have this much power and authority. But

I think on some of these issues, what we need to do is make sure,

before we make judgments about people, that we fully understand

what the facts are.

The detention with regard to Dr. Lee, was as a consequence motivated solely and exclusively by the very serious concern that

there was missing in action from the Government’s point of view

information that the experts indicated could, if falling into the

wrong hands, change the balance of global power in the world, a

very serious matter.

Judge Parker originally at the detention hearing agreed with

that. The tenth circuit approved that. There was a hearing about

it, and the process worked itself out at the end of the day to the

point where things changed from the judge’s point of view. And so

I think it is well to explore those things for the larger picture and

that is what we ought to be doing as well, and if there are mistakes

that are made—obviously, the Attorney General has indicated that

this matter is going to be reviewed fully within the Department as

well by its Office of Professional Responsibility, also. And we have

obviously the important role of Congress in its oversight as well.

So I think there are plenty of levers with regard to this and they

are being exercised, and I think it is appropriate that they be exercised.

Mr. BAY. Senator Torricelli, if I could say one thing for the

record, sir, you have referred on two occasions to line prosecutors

and mistakes they might have made. But Judge Parker specifically

said that virtually all of the lawyers who work for the Department

of Justice ‘‘are honest, honorable, dedicated people who exemplify

the best of those who represent our Federal Government.’’ I don’t

want that to be lost.

22

And, in addition, with respect to the line prosecutors on the case

itself, he said that they are all outstanding members of the bar

‘‘and I have the highest regard for all of them.’’ That is on pages

57 and 58 of his transcript. Now, I would respectfully disagree with

his criticisms, but I very much agree with his judgment as to the

people who worked on the case.

Senator TORRICELLI. Well, given that as members of the U.S.

Senate our responsibilities include not the oversight of Justice

alone, but the general welfare of the people of the United States,

allow me to write a paragraph into this analysis.

I agree with the Department of Justice’s initial assessment that

the loss of this information, a compromise of the activities at Los

Alamos, could change the entire strategic balance of power and

jeopardize the United States. I believe from much of the evidence

that I saw that there was real reason to believe that Dr. Lee was

guilty of some of these offenses. Indeed, he has now pled guilty to

what is a serious offense.

Yet, the prosecution of the larger case was compromised. The

case clearly was not handled appropriately, or it would not have resulted in a plea to a single of 59 counts. It is not clear to me that

you are ever going to fully know what happened to those tapes or

who saw them. There were misjudgments from the time a wiretap

was required to the almost unbelievable manner in which we failed

to get access to his computer and his workspace through the prosecution.

We can be laudatory about everyone who touched this case at

every stage, but the final result suggests no one deserves any enormous credit. The people of the United States have no right to be

proud of how this case was handled. Their interests, and even their

security was potentially compromised. I say that not knowing how

this case would have resolved. Perhaps Dr. Lee would have been

found innocent, but I don’t think any of us can feel particularly

good about anybody’s role in this activity.

Mr. Robinson.

Mr. ROBINSON. I was only going to suggest that one of the things

that needs to be kept in mind—and obviously everybody is entitled

to their opinion at the end of the day—these cases, particularly

cases that involve as a necessary item of proof the exposure of confidential Government information—the whole decision to bring a

case like this has perils associated with it.

We do have the Classified Information Procedures Act that mitigates in many ways that risk. But these kinds of cases oftentimes

are not brought at all—— Senator TORRICELLI. I think that is an important point.

Mr. ROBINSON [continuing]. Because the exposure of the secrets

publicly will do all the damage that you are trying to prosecute,

and that was absolutely true in this case. The CIPA procedures

were invoked. The signals coming from the judge—and, you know,

Dr. Lee had the benefit of very fine lawyers who did a very fine

job for him in connection with this matter. And part of their job

before indictment and during the proceedings was to push the envelope as far as they could to get the Government to the point

where the cost of proceeding would be outweighed by the cost of

throwing in the towel.

23

And talk about a worst case scenario. It seems to me the worst

case scenario in this case would have been a situation in which we

would have had to throw in the towel because we couldn’t afford

to proceed with the trial. And we would have had none of the benefit of the plea bargain, none of the benefit of trying to get to the

bottom of this, to get the answers which really are far more important than punishing Dr. Lee for his very serious conduct which he

has now admitted.

We have to keep in mind that we have to assume the worst and

hope for the best. And, assuming the worst, maybe you have to recalculate the whole nuclear arsenal of the United States because

you can’t take the risk that it is in the wrong hands. So I just think

it is a point that needs to be—— Senator TORRICELLI. It is a good point to add that it required a

mature and sober judgment to look at the larger interests of the

country, finally, and I accept that and I think it was an important

point to make here.

I have another seven tabs in my notebook, but given the fact that

I have very little voice left, I know the witnesses will regret this,

but I am unable to—— Mr. BAY. Senator Torricelli, may I add one footnote to what Mr.

Robinson just said?

Senator TORRICELLI. Sure.

Mr. BAY. I would like to tell you something that happened during

the course of the case that frankly I don’t think has been disclosed

before. In late May, we met with defense counsel in this case. They

came over to the U.S. Attorney’s Office in Albuquerque; this is in

late May. And the defense lawyer said that he would never take

a plea to any count in the indictment—that is, ‘‘he’’ being Dr. Lee— and that if the Government wasn’t willing to accept, the defense

was going to put the United States on a, ‘‘long, slow death march

under CIPA.’’ I still remember that phrase, ‘‘long, slow death march’’ because

as I was sitting in our conference room, I am hearing this defense

lawyer tell us that he is going to bludgeon us using CIPA.

Senator TORRICELLI. Is that in the transcript or was this a

private—— Mr. BAY. This was a private meeting that we had in late May

when he said, my guy is not going to take any charge in the indictment and if you don’t like that, I am going to put you on a long,

slow death march under CIPA. And, you know, in mid-September,

had the case not been resolved, the judge would have decided

whether or not the Government substitutions under CIPA were

adequate.

Our sense was that the judge was going to rule against us, and

had that happened, our indictment would have been gutted. We either would have had to declassify a huge amount of highly sensitive information, nuclear source codes, or we would have had to

dismiss counts in the indictment. It was a very stark choice. And

then I think what Mr. Robinson was talking about, that could have

been the result; that is, at the end of the day we would have had

nothing.

Senator TORRICELLI. Thank you, Mr. Bay.

Senator SPECTER. Thank you, Senator Torricelli.

24

Mr. Bay, if somebody had told me when I was a prosecuting attorney they were going to put me on a long, slow death march, I

would say let’s start walking. That is the kind of a threat lawyers

make—— Senator TORRICELLI. I believe that. [Laughter.]

Senator SPECTER. I have even done a lot of walking in my current job. That is the kind of threat lawyers make all the time.

And on the Classified Information Procedures Act, the Government had not run out the string on the legal challenges. You had

offered a substitution so that you didn’t have to make disclosures.

The judge hadn’t ruled on that. He may have been predisposed, but

you never know until you get the ruling. And then you had appellate rights, so that you were a long way in this case from ever

being required to produce confidential or highly sensitive information. And I am going to come to that, but I am going to start at

a more important point.

There is a limitation on proceeding beyond 11:30 today, and as

I said at the outset, Senator Lott has scheduled a meeting with

Speaker Hastert and those of us involved in the appropriations bill

on my subcommittee. So I am going to have to excuse myself shortly before 11 o’clock, but Senator Torricelli may want to go beyond.

I don’t think it is possible for me to get back before 11:30, and

there are a number of topics I want to cover.

First, on the comment that the Attorney General is being criticized for being too aggressive and then not aggressive enough,

there are two phases of this case. One was what the Government

did by way of investigation, and the second is what was done to

Dr. Lee.

The Attorney General has been subjected to criticism, and as

Senator Torricelli commented, her testimony was taken in a closed

session back on June 8, 1999, as to why a warrant was not authorized or pursued by the Department of Justice under the Foreign Intelligence Surveillance Act. And on that matter, FBI Director Freeh

sent a top assistant, John Lewis, to talk personally to Attorney

General Reno.

Attorney General Reno assigned the matter to Daniel Seikaly,

who had had no experience with that Act, applied the wrong standard, and the application was turned down in August 1997, which

put a dead stop to this investigation. And the FBI did relatively little until December 1998, and then we know what happened with

the polygraph and thereafter. But that is when the Attorney General was criticized for not being aggressive enough.

The treatment given to Dr. Lee after the fact—we do not know

to what extent the Attorney General was involved there. We

haven’t sorted that out. The Government was too aggressive, but

it is not inconsistent with the Attorney General having been not

sufficiently aggressive at an earlier stage.

Let me come to a question of proofs which bears on the indictment and the pressure brought on Dr. Lee, and that is, either Mr.

Parkinson or Mr. Robinson, the statute required in the disjunctive

that there either be injury to the United States or be to the advantage of a foreign nation. Director Freeh testified about injury to the

United States and he specified three items. First, there was the

most secure information which was disclosed. Second, the informaVerDate 11-MAY-2000 13:22 Nov 01, 2001 Jkt 074193 PO 00000 Frm 00030 Fmt 6633 Sfmt 6602 E:\HR\OC\A193.XXX pfrm04 PsN: A193
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tion was placed on an open system. And, third, the key information

was placed on tapes.

Is there any other factual element which went into the thinking

of the Government to prove injury to the United States? Mr. Parkinson.

Mr. PARKINSON. I think you have captured the broad terms of the

theory. I think we have stated at the outset of the prosecution

when the indictment was handed down that the theory was, and

still is, and I think was solid then and remains solid that the defendant had an intent to injure the United States, at the very least

by taking what was within the sole control and dominion of Los Alamos, some of the Nation’s most sensitive secrets, and depriving

the U.S. Government of its sole custody and control of those secrets. And while there are no cases that parallel this in precedent,

we all were comfortable, particularly analyzed within the Justice

Department, that this was a viable theory and an appropriate theory upon which to charge Dr. Lee.

Senator SPECTER. Well, Dr. Lee was also charged with the lesser

offense of downloading and mishandling Government information,

which carries a 10-year sentence. Judge Bonner, the former head

of DEA and former U.S. district judge, made a comment that the

Government overcharged and the suggestion that the Government

overcharged to subject Dr. Lee to an indictment which carried life

imprisonment as part of the argument to urge the confinement.

I personally think it is a difficult question as to whether there

is a showing of injury to the United States on proof beyond a reasonable doubt when you say that it was the most sensitive information, placed in an open system, and put on tapes, and you have an

explanation which I do not accept at all about wanting this information to try to get a new job.

Mr. ROBINSON. Well, let me suggest that because this a circumstantial case with regard to his intent, there is additional evidence, I think, that bears upon this that is critically important and

I think that this case was not overcharged.

Senator SPECTER. What is that additional evidence, Mr. Robinson?

Mr. ROBINSON. Well, I think, first of all, you have to look at the

very surreptitious way in which this was done, the fact that it

wasn’t accidental, the fact that he didn’t have a work-related purpose for doing this, the fact that we could infer from his conduct

that anything that was to be done with these tapes, and making

portable copies of it, because of the very unique nature of these— this information isn’t usable to build widgets someplace. This information is usable to build bombs. These are strategic military information, and one can explore the issue of an intent to injure.

There is no doubt in the world about the fact that there was injury, egregious, enormous injury to the national security. The question was whether Dr. Lee intended to do it.

Senator SPECTER. Well, Mr. Robinson, doesn’t the postulate of injury to the United States really turn on having these transmitted

to some foreign power?

Mr. ROBINSON. That is an alternative thing in the statute, but

injury to the United States is sufficient under the statute to make

out a crime. It is sufficient to make out a crime under this statute

26

that there be an intent to injure the United States. It is not a requirement, and it wasn’t charged as an espionage case in the sense

of a delivery. Nothing in the indictment said that.

As a matter of fact, it was stressed at the time of the indictment

that no allegation was being made that Dr. Lee had transmitted

because we weren’t in a position to offer that kind of proof. There

had been a lot of speculation in the newspapers about those kinds

of things, but those were not alleged by the United States. But we

do believe it was fair and appropriate to charge the highest provable offense against Dr. Lee, which was that this was done with

an intent to injure the United States. We believe we would have

proved it as to all of the counts in the indictment that required

that proof.

Senator SPECTER. Well, you may be right. I wouldn’t want to

pass on it beyond reporting Judge Bonner’s comment which he

made that there was an overcharge. And I think he didn’t specify

this, but I wondered when Director Freeh testified if there really

was adequate proof beyond a reasonable doubt in the context of Dr.

Lee’s looking for other jobs.

But let me pick up the thought that you are making with respect

to transference to a foreign power. That is espionage and that carries the death penalty if it is transferred to a foreign power. And

there are quite a few links in the evidence which Director Freeh

went over yesterday about contacts which Dr. Lee had with a foreign power.

In 1992, he had contact with a person who was under investigation. It was a telephone tap on the other individual, and then Dr.

Lee didn’t tell the truth about it until he was confronted. There

was an incident in 1994, or even before 1994, a lot of travel to the

People’s Republic of China and a lot of contacts with officials, nuclear scientists, where Dr. Lee did not report them, as he was obligated to report them under the DOE procedures. And then there

was a 1994 incident where Dr. Lee had contact with a nuclear scientist, with the overtone and some indication of having helped the

PRC. So you have quite a series of those incidents.

And then you raise the question which is not answered, and it

compounds the failure to get that warrant under the Foreign Intelligence Surveillance Act as to what was going on here with other

suspicious circumstances in Dr. Lee’s house, much of which is classified and can’t be commented about in open session, which leads

me to a two-part question.

First, did you consider a charge under the Espionage Act? And,

second, weren’t those factors weightier on showing a transference

to a foreign power than the factors on injury to the United States?

Mr. Robinson.

Mr. ROBINSON. Well, I think it would have been overcharging to

charge him with the death-penalty offense of espionage for transferring this information to a foreign power without the ability to

prove that beyond a reasonable doubt. And so obviously the issue

of all of the charges available were considered, and it was determined that the highest provable offenses should be and were

charged in this indictment.

But I think if we had charged a death-penalty espionage for

transmission of the information to a foreign power without the abilVerDate 11-MAY-2000 13:22 Nov 01, 2001 Jkt 074193 PO 00000 Frm 00032 Fmt 6633 Sfmt 6602 E:\HR\OC\A193.XXX pfrm04 PsN: A193
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ity to prove it beyond a reasonable doubt, then people could have

reasonably criticized that kind of a decision as overcharging.

Senator SPECTER. Did you consider that charge?

Mr. ROBINSON. We considered all of the charges.

Senator SPECTER. You did consider that charge?

Mr. ROBINSON. Obviously, that was—it is right in there among

the other offenses to be looked at.

Senator SPECTER. I don’t think you had enough to charge espionage either, but you know more about this case than I do. And I

have just enumerated a number of factors which look in that direction. When you charge espionage and it carries the death penalty,

you have really got to have a very, very powerful case. But I think

by the same token, when you charge an offense which carries a life

sentence, you have to have a powerful case, not to the same degree

because the penalty does bear on the quality of the proof. But I

raise those questions.

And I know your answer to this question, but I am going to ask

it. Did you seek a charge—and this is not a charge that Dr. Lee

pled guilty to. He pled guilty to the lesser charge carrying a 10-

year sentence, not the one where you would have to prove injury

to the United States. But did you consider that major a charge as

a pressure tactic, Mr. Robinson?

Mr. ROBINSON. No; we felt that that was the highest provable

charge that we could bring under the principles of Federal prosecution. The standard is for the Government to seek the highest provable charge against an individual. We thought this was appropriate

when we charged it. We continue to believe it is appropriate today.

And we believe, as Director Freeh and the Attorney General indicated yesterday, that if we had gone to trial, we believe that assuming the CIPA problems could have been overcome, we would

have been able to secure a conviction beyond a reasonable doubt as

to the charges made in the indictment.

Senator SPECTER. Well, without going into great detail because

you didn’t come to talk about the Dr. Peter Lee case, I think you

had a stronger case for charging a life sentence case for Dr. Lee

on injury to the United States than you had with Dr. Wen Ho Lee.

I am not going to press you for a comment on that, but if you care

to make one, I would be interested.

Mr. ROBINSON. Well, as the Senator knows, you have had extensive hearings on that. I think our positions have been made clear.

I wasn’t involved in that particular matter, but I think we have

made our positions clear that that case, in the view of the Department, was appropriately handled by the prosecutors. I know there

is some difference in opinion as to your view of the matter, and

that is what this healthy dialog is all about and we try to learn

from each other’s views on this matter.

Senator SPECTER. Well, on Dr. Peter Lee, the Assistant U.S. Attorney in Los Angeles, Jonathan Shapiro, felt that he either had to

take a lesser plea or he wouldn’t get one. And Mr. Dion in Washington never ruled that out, so that there was an issue of

miscommunication, that Main Justice in Washington never really

ruled out a tougher charge as to Dr. Peter Lee. But in putting

these cases side by side, my sense is that the Peter Lee case was

stronger than the Wen Ho Lee case for the life sentence charge.

28

Let me come to the point that has been made about the treatment and the manacles. We have requested all of the documents

and all of the writings to see exactly why Dr. Lee was put in leg

irons and arm irons, attached to his waist. When he talked to his

attorneys, the attachments were taken off. When he went to the

men’s room, they were put back on.

It is understandable that you didn’t want Dr. Lee to have contacts with people where he could transmit information, secrets. The

light in his cell, the comment about the Rosenbergs by the agent— that was in Director Freeh’s written testimony conceding that it

was inappropriate. He didn’t comment about it orally.

You have a highly unusual circumstance—or let me get your

view on it, Mr. Parkinson, that you have, I think the testimony

was, incorrect information given by Mr. Messemer. Does that happen very often, Mr. Parkinson, by an experienced agent like Mr.

Messemer on a very, very important fact in a very, very high-profile case?

Mr. PARKINSON. I am happy to say it does not happen very often,

but I think again I would just simply point out the circumstances

of this case where we had enormously voluminous materials to

master. I don’t mean to excuse that. He should have mastered it,

but it does happen, but not frequently.

Senator SPECTER. Well, it raises a suggestion of the FBI really

being on the line and the Department of Justice really being on the

line, and the Department of Energy, too, really being on the line.

And without going over what happened, suddenly, with the pendency of the Cox Committee report, you really threw the book at this

man on the charges, really, and on the shackles and on the Rosenberg’s statement and on the light, raising an inference—I am not

saying that you were trying to coerce a guilty plea out of him, but

that is a question you have to answer.

What was the purpose, Mr. Robinson, of having the light in Dr.

Lee’s cell?

Mr. ROBINSON. Well, I think we need to get to the bottom of that

question because I learned about it only in connection with these

proceedings. We have to find out whether it is a night light or

whether it is burning light bulb.

I do know this, as was indicated by the Attorney General yesterday, that a jail monitor visited Dr. Lee in March at his facility

where he was there because of the expressions of concern about the

conditions of his confinement. And in a memorandum at the facility, he interviewed Dr. Lee and the jail monitor says that he personally met with Dr. Lee for about 20 minutes in his jail cell. He

explained his role as jail monitor and the calls that he had received

about Dr. Lee’s condition.

Other than being incarcerated, he had no complaints. The staff

was treating him very well, and he singled out Warden Barerras

and Deputy Warden Romero as treating him great. ‘‘He told me

that he had seen a doctor when requested, and he has not been

sick or ill at any time during his incarceration. His only request

was for additional fruit at the evening meal, which I relayed to

Warden Barerras. I gave him my business card and told him to

contact me through his attorney if there was any mistreatment or

other issues regarding his incarceration. At no time did we discuss

29

his case or any fact relating to it,’’ and he emphasized his role as

a jail monitor.

There was a conversation, and Mr. Bay can indicate it, between

the U.S. Attorney’s Office and counsel for Dr. Lee about his conditions, and a number of things were done, obviously, to mitigate

those. Whether some of them could have been done more efficiently, effectively or sooner, the key about the special administrative measures was to deal with his ability to communicate.

Senator SPECTER. How did the manacles relate to his ability to

communicate?

Mr. ROBINSON. As I understand it—and I think we need to lay

this out carefully so we understand exactly what happened. As I

understand the situation, the conditions at this particular facility

for prisoners in segregation, which Dr. Lee was in, are procedures

that apply to all prisoners who are in segregation. So if this is a

problem, perhaps it should be addressed on a systemic basis because there are certainly other prisoners in administrative segregation being treated exactly the same way.

Senator SPECTER. Did the monitor tell Dr. Lee he needed to have

those manacles and leg irons?

Mr. ROBINSON. Did the what?

Senator SPECTER. Did the monitor tell Dr. Lee he had to have

those leg irons and those wrist irons?

Mr. ROBINSON. No; as I understand it, the monitor was finding

out from Dr. Lee whether these claims that he was being mistreated—whether he had concerns about that. There were efforts

early on to get a Mandarin speaker to assist Dr. Lee in his communications. There were efforts to effect visiting times. There were efforts made later on particularly to remove any shackling during exercise.

The U.S. Marshals Service has also procedures for how they handle the transfer of all prisoners in custody from the facility to court,

and those are standard procedures as well. But I think these are

things that we ought to make sure we understand exactly all of the

specific facts concerning these.

Perhaps Mr. Bay would also be able to enlighten us.

Senator SPECTER. Mr. Robinson, it is not uncommon for the prosecution to seek a jail sentence to induce somebody to testify, turn

State’s evidence.

Mr. ROBINSON. I think it would be inappropriate to have a pretrail detainee put in prison for that purpose. That was not the purpose of the detention here. And I would also point out that in the

memorandum, Dr. Lee is purported to have said—Mr. Lee was very

surprised about the calls concerning his treatment and stated, ‘‘I

haven’t complained to anyone about the jail because I am being

treated very well.’’ That is what he said in March 2000.

Mr. BAY. Mr. Chairman.

Senator SPECTER. Well, we intend to pursue this to find out if everybody is treated this way, or about the light and about the whole

panoply of arrangements as to how he felt about it. It is not uncommon for someone in detention not to want to anger the custodian.

You don’t want to make your custodian mad. Who knows what is

going to happen next?

Mr. BAY. Mr. Chairman.

30

Senator SPECTER. Mr. Bay, do you want to make a comment?

Mr. BAY. I have some information with respect to the light. I first

learned of this a few days ago when I read about it in the newspaper. I have since made inquiries back in New Mexico and I am

told that the light was a dull blue light, kind of like a night light,

in Dr. Lee’s room, and that the jail would use that just to make

sure that if someone walked by and looked inside his cell that they

could make sure that he was there and that he was doing OK.

I do know from having reviewed the correspondence in this case

that we never received a complaint from defense counsel about the

light. The main thing, though, is I don’t want you, Mr. Chairman,

to be left with the impression that there was some sort of bright

light that was left on in his room 24 hours a day.

I also get the impression, Mr. Chairman, that this blue light was

something that individuals in the administrative segregation part

of the jail had in their cells, that this was not something special

with respect to Dr. Lee.

Senator SPECTER. Well, we are going to pursue that to really find

out exactly what happened, what the defense lawyers have to say

about it, Mr. Holscher and Mr. Cline, and what was done specifically to Dr. Lee.

On the issue of racial profiling, there was supposed to have been

a submission to the court, as I understand it, on September 15.

And the judge commented that he regretted not being able to see

those documents, but the case was concluded on the 13th.

How long will it take, Mr. Robinson, for the subcommittee to

have access to those documents?

Mr. ROBINSON. I am not sure offhand. I do understand that the

prosecutors did meet with Judge Parker and indicated that if he

was interested in seeing any of this material, there was going to

be no effort to not give it to Judge Parker if he was interested in

it.

Am I correct, Mr. Bay?

Mr. BAY. That is correct. The lead prosecutor met with Judge

Parker a few days ago.

Senator SPECTER. Have those materials been all collected?

Mr. BAY. I don’t know. You would have to ask the Department

of Energy. But we asked Judge Parker if he still had an interest

in reviewing those materials and he indicated to the lead prosecutor that he no longer had that interest.

Senator SPECTER. Well, they were moot as far as he was concerned.

Are those materials all collected, Mr. Curran?

Mr. CURRAN. Sir, that is the first I am hearing of it, so there

must be somebody else in the Department handling those. I know

the Secretary had a racial profiling task force which put together

most of——

Senator SPECTER. Well, Mr. Curran, Mr. Robinson, Mr. Parkinson, and Mr. Bay, would you give the subcommittee a response as

to what is collected and how soon we can have access to them?

Mr. CURRAN. Sure.

Senator SPECTER. On the Classified Information Procedures Act,

Mr. Robinson, when a decision was made to proceed with this case

you knew that you faced that risk.

31

Mr. ROBINSON. We did.

Senator SPECTER. And you were prepared to go to trial, notwithstanding that problem. Did anything ever occur to change your

view if you had an adverse ruling under CIPA?

Mr. ROBINSON. I think this is an important point to deal with because during the discussions with the Department of Energy, and

particularly the classifiers there, obviously prosecutors who want to

put the best case in would like to have as much information available, particularly given the circumstantial nature of this case.

The more light that could be shed on the critical importance and

the strategic importance of this information, and the less usable

that information is for other purposes, the better your case on intent is. So we were pushing to get as much information consistent

with the national interest as possible. The Department of Energy

understandably wants to protect that information. We made it

clear—— Senator SPECTER. You thought you could put enough on to get a

conviction?

Mr. ROBINSON. Assuming we could hold the line that we had established in connection with the declassification, which obviously

there were very strong signs was not going to be held. But we also

made it clear that this subject, as in all of these cases—whenever

you bring one of these cases, you have to constantly reevaluate

based upon CIPA rulings whether or not the cost/benefit analysis

is going to tilt the other way.

Senator SPECTER. But you had not crossed that line.

Mr. ROBINSON. Not yet.

Senator SPECTER. You had made an offer of substitution so you

wouldn’t have to produce the sensitive material. The judge had not

ruled on it.

Mr. ROBINSON. Right, that is quite right, and we didn’t reach

that.

Senator SPECTER. And you also had appellate remedies to take

it to a higher court if you got an adverse ruling from Judge Parker.

Mr. ROBINSON. We did. Let me also suggest, however, that I understand your point about getting on that long death march, and

I believe to a moral certainty that you would do it and I know you

were a very skilled and forceful prosecutor. The only thing that I

would suggest there is that I know that you would have made the

same kind of sound judgment, assuming these facts.

If you ever lose the CIPA battle completely to the point where

you have to throw in the towel, you would get nothing in return

from the defense because you would have to dismiss your case. And

as I said, the worst case scenario here would have been to have

gone all the way and lost, at a point when we would have had to

have made this very difficult decision as to whether the gray mail

worked and we couldn’t proceed because we couldn’t expose those.

We didn’t get to that point, but I suggest that going all the way

to the end to lose would have been a very, very bad scenario for

the national security of the United States.

Senator SPECTER. Well, we are going to pursue that, but in

closed session. We are going to want to know what it was on the

worst case scenario you would have had to have produced, and get

into the details as to what substitution was offered, and make an

32

evaluation as to whether you could have won that with Judge

Parker or won it on appeal.

The imminence of the release of Dr. Lee is a factor which raises

speculation that that was a critical factor in your decision to come

to terms at that particular time; that once Dr. Wen Ho Lee would

have been released by the court of appeals, had they done so, had

their affirmed Judge Parker’s order, there would have been a really

very significant psychological loss for the Government, and also an

ability to have an effective monitor on Dr. Lee, and that the real

strength of your position lay in getting that detention and even if

the pressure was not intended, to have that pressure.

How significant was the order releasing him to your final decision, Mr. Robinson?

Mr. ROBINSON. Well, obviously it was a factor because our reason

for the special administrative measures was because of our concern

about the national security. And we did make the point with Judge

Parker that we did not feel the conditions—and the other thing

that needs to be remembered is although Judge Parker was granting bail, he was granting bail with the most severe restrictions I

have ever seen on a person who is not in custody with regard to

what could have been done.

It would have been done at enormous expense of time and effort

by the FBI and, in our view, at the end of the day would not have

been satisfactory to protect our concerns. So it was obviously one

factor, along with many others, that was also going along with this

mediation process that Judge Parker has put in place to create, I

think, the dynamics for the possibility of a resolution which, like

all resolutions—I am sure that Dr. Lee and his attorneys would

have preferred a different result, a nonfelony result that perhaps

didn’t involve the kind of cooperation.

We might have preferred something different as well, but we felt,

and the Director and the Attorney General felt that this was the

result that made the most sense to protect the national security,

and I certainly agree with that.

Senator SPECTER. I have one final question from Dobie

McArthur, who I will put on the record as having done an extraordinary job. He is a one-man task force. We don’t have a budget, but

we have McArthur, which is better than a budget.

With respect to CIPA, the question which Mr. McArthur poses is

wouldn’t the Government have been secure in not having to put on

the input decks, which even Dr. Richter concedes was sensitive? So

weren’t those at least secure?

Mr. ROBINSON. Perhaps Mr. Bay can answer that.

Senator SPECTER. OK, Mr. Bay, you have the last word.

Mr. BAY. Mr. Chairman, with respect to the indictment, almost

every count references the source codes, and that is the classified

information that was under greatest attack in the CIPA ruling.

And the judge had accepted an argument by the defense that the

source codes were relevant to the defense, for reasons I don’t want

to get into here. But those sources, when you go through the indictment, are listed in almost every single count.

Senator SPECTER. We are going to have a hearing bringing in the

scientists and make a determination as to whether these were the

crown jewels or whether they were not and to what extent they

33

were sensitive. And to the extent we can, we are going to do an

open hearing on that. We may have to go into closed session, but

we are going to pursue that line.

Gentleman, thank you very much for coming.

Mr. Parkinson, do you want the last word?

Mr. PARKINSON. Mr. Chairman, I just wanted to add on that

point that I think it is very significant we did have a major development, at least potentially, since yesterday, and that is that Dr.

Richter’s testimony in large part appears to have been retracted.

And there is an account in the New York Times this morning about

how he says when he testified that 99 percent of this was out there

and unclassified, he was only referring to certain pieces of this. He

said his comments did not apply to most of the data, or at least

other data that Dr. Lee removed.

Senator SPECTER. Well, maybe you would have found that out if

you had proceeded under the Classified Information Procedures Act

and had further proceedings.

Mr. PARKINSON. Yes, we may have.

Senator SPECTER. You might have found that out before Judge

Parker. I don’t know that you could find out as much as the New

York Times did, but you might have.

Thank you very much, gentlemen.

[Whereupon, at 10:59 a.m., the subcommittee was adjourned.]

(35)

CONTINUATION OF OVERSIGHT OF THE WEN

HO LEE CASE

TUESDAY, OCTOBER 3, 2000

U.S. SENATE, SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT

AND THE COURTS, COMMITTEE ON THE JUDICIARY, Washington, DC.

The subcommittee met, pursuant to notice, at 9:33 a.m., in room

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter presiding.

Also present: Senator Grassley.

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S.

SENATOR FROM THE STATE OF PENNSYLVANIA

Senator SPECTER. Good morning, ladies and gentlemen. The hour

of 9:30 a.m. having arrived, the Judiciary Subcommittee on Department of Justice Oversight will now proceed.

This is our fifth hearing into the issues involving the investigation and prosecution of Dr. Wen Ho Lee and today we are going

to concentrate on a number of issues, including the seriousness of

the information which was compromised by Dr. Lee and also the

issue of racial profiling.

A very significant backdrop on our hearings relates to the statements made by Judge Parker on September 13 where he said,

among other things, ‘‘With more complete balanced information before me I felt the picture had changed significantly from that painted by the government during the December hearing.’’ And continuing, ‘‘I find it most perplexing, although appropriate, that the

executive branch today has suddenly agreed to your release without any significant conditions or restrictions whatsoever on your

activities. I note that this occurred shortly before the executive

branch was to have produced for my review in camera a large volume of information that I previously ordered it to produce.’’ The

subcommittee intends to examine that information—even though

the court could not because the matter was closed—to find what its

import is.

Judge Parker then continued: ‘‘What I believe remains unanswered is the question of what was the government’s motive in insisting on your being jailed pretrial under extraordinarily onerous

conditions of confinement until today, when the executive branch

agrees that you may be set free essentially unrestricted. That

makes no sense to me.’’ This subcommittee is determined to find

out what the government’s motives were.

36

The judge then continued somewhat later in this statement: ‘‘Dr.

Lee, I tell you with great sadness that I feel I was led astray last

December by the executive branch.’’ And he later said, ‘‘We will not

learn why because the plea agreement shields the executive branch

from disclosing a lot of information that it was under order to

produce that might have supplied the answer.’’ And here again the

subcommittee intends to find what that answer is.

That is a very brief overview, necessarily curtailed by the fact

that we have two votes scheduled at 10 o’clock. Those are beyond

the power of the subcommittee. In fact, nobody knows what votes

are going to be scheduled until they actually are on the day in

question. And the subcommittee has also been restricted, as it was

last week, by objections raised to having any hearings proceed 2

hours after the Senate goes into session, so that may restrict us,

as well. We will endeavor to complete our list of witnesses today

but we will just have to see how that goes.

I want to now yield to my distinguished colleague, the chairman

of the subcommittee in its ordinary function, Senator Grassley.

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR

FROM THE STATE OF IOWA

Senator GRASSLEY. I thank you, Senator Specter, for your leadership in this whole area, holding these hearings and doing it in a

timely and thorough manner and particularly the obstacles you

have had to overcome to get to where we are today and maybe even

obstacles to get to where we have to go further, sometimes obviously fighting even Members of Congress in our constitutional oversight—Democrats who, for obvious reasons, maybe do not want

some of this information out but even sometimes fighting with Republican members of the Senate to do our job, and always having

to work with the executive branch dragging its feet.

Now you are holding these under very difficult circumstances

and I appreciate that very much. I think there is one thing that

I want the public to keep in mind during these hearings, particularly one thing, and that is the public is only getting one side of

the story. For now, Dr. Lee’s side of the story is on hold. That is

because his attorneys have asked that his side be told only after

he is debriefed by the Government. We also asked to interview

Judge Parker about his views of the case but Judge Parker declined our invitation, so the public is not going to get the full picture, which may not come into view for some time yet.

This case can only be described as a colossal blunder and when

I say that, I am taking you back to 1996 when Dr. Lee was investigated for divulging the W–88 warhead data. That investigation

was fundamentally flawed from the beginning. The Bellows Report

confirms this point of view. So does any fair reading of the thousands of pages of documents that we read about this case.

Also throughout this case there has been lots of finger-pointing

going on; it is still happening—the FBI, the Justice Department,

the Energy Department, Congress, even the judge—and I imagine

that we will see some of that even here at this very hearing. It all

started when the Federal Government pointed its rather substantial finger at Dr. Lee without sufficient basis.

37

One thing that I agree with Mr. Vrooman about in his written

testimony that is prepared for today’s hearing, he says that Dr. Lee

was singled out as having ‘‘the means and motivation’’ to compromise the W–88 information. Mr. Vrooman goes on to say, ‘‘Every

time Lee’s motive was discussed, it came down to ethnicity. There

was no other motive ever suggested.’’ Now I was not privy to any discussions involving ethnicity but

the issue of a motive was not discussed in the documents we received in this investigation. It was mentioned but was not discussed in any convincing way, and I think that is one of the more

troubling aspects of this case. The job of this subcommittee and

particularly this investigation is to learn what went wrong and

why; then fix it so it does not happen again. And in regard to that,

that is why today’s hearing is so very, very important. Thank you,

Mr. Chairman.

Senator SPECTER. Thank you very much.

Will Mr. Trulock, Mr. Wilkins, Dr. Richter, Dr. Younger, Mr.

Vrooman all step forward? Would you gentlemen all raise your

right hands?

Do you solemnly swear that the testimony you will give before

this subcommittee will be the truth, the whole truth and nothing

but the truth, so help you God? Mr. Trulock?

Mr. TRULOCK. Yes.

Senator SPECTER. Mr. Wilkins?

Mr. WILKINS. Yes, sir.

Senator SPECTER. Dr. Richter?

Mr. RICHTER. Yes, sir.

Senator SPECTER. Dr. Younger?

Mr. YOUNGER. I do.

Senator SPECTER. Mr. Vrooman?

Mr. VROOMAN. Yes, sir.

Senator SPECTER. OK, Mr. Vrooman is at the far end of this

table; Dr. Younger is next, Dr. Richter, and Mr. Wilkins, Mr.

Trulock.

And for the record, Mr. Trulock is represented by Mr. Larry

Klayman, who is seated next to him.

Dr. Richter, let us begin with you. We would be pleased to hear

your opening statement at this time.

STATEMENT OF JOHN RICHTER, SCIENTIST, DEPARTMENT OF

ENERGY

Mr. RICHTER. I would like to make one.

I assume that this hearing is to explore whether the case against

Wen Ho Lee was conducted properly and whether congressional action is warranted. In 1958, about the time that Julius and Ethel

Rosenberg were executed for atomic espionage, the most recent

amendments to the Atomic Energy Act were enacted. Since then,

the United Kingdom, France, China, Israel and perhaps India have

built nuclear arsenals, in addition to those of the United States and

the Union of Soviet Socialist Republics. Later, the Soviet Union collapsed, the Cold War ended. Also ended were such terms as mutual

assured destruction.

In the Lee case, the out-of-date Atomic Energy Act, which included overly harsh criminal penalties, together with unrealistic

38

damage assessments from DOE, spurred the FBI and the prosecution team to actions that a large sector of the public found unacceptable. I urge the Congress to keep volatile laws, such as the

Atomic Energy Act, current and not leave it to the courts. I would

like to elaborate on some of these views next.

I have held various security clearances since 1958, including

DOE, military and NSI. While not a very attractive aspect of employment, security is a condition of employment and I have never

willfully violated it. Anyone who finds it onerous to work in a calcified environment should seek employment elsewhere.

Regarding the data that Wen Ho Lee downloaded on the unclassified computer, there are three categories of information: computer

codes, material properties information, and problem setups, which

include the W–88.

The first are only slightly classified because they describe physics

that date back as far as the 17th century.

Senator SPECTER. Dr. Richter, are you now on the three categories of the nominated input decks, data files and source codes?

Mr. RICHTER. Right. The source codes I mentioned, they are very

slightly classified. The materials properties information and then

the problem set-ups.

The second, the materials properties information, is classified because it contains properties of high atomic number elements, like

plutonium, et cetera.

Senator SPECTER. Now which are you referring to? Are you talking about data files or input decks?

Mr. RICHTER. Data files.

The third, the problem set-ups, the input decks, as you call them,

are truly classified because they contain numerical descriptions of

some of our nuclear weapons, including the W–88.

Let me consider what harm might have accrued to the security

of the United States if the subject information had gotten into the

hands of nations not necessarily friendly to the United States.

The United States exploded its first nuclear device in 1945, Russia 1949, the United Kingdom about 1951, France about 1958,

China in 1964, India in 1974 and Pakistan in 1998. So clearly

there is a lot of information worldwide regarding nuclear weapon

technology. It has been around a long time.

We know that the Union of Soviet Socialist Republics, via Klaus

Fuchs, got information from the United States. We also know that

Russia gave China information. And we further know that China

mentored Pakistan. The governments of the majority of the people

on earth know how to build nuclear weapons that could cause serious harm to the United States and they have known it for a long

time.

The problem set-up data in question can be compared with a partial cooking recipe. In addition to the recipe, the user must have

an adequate kitchen, all of the ingredients, and considerable skill

as a Chief. If he can already broil a steak, why should he attempt

to prepare, say, Chateaubriand from an incomplete Cordon Bleu

recipe?

The United States built nuclear weapons to maximize the Nation’s chances for survival in case the Cold War turned hot. Those

were the largest of MIRV’s—multiple independently targeted reVerDate 11-MAY-2000 13:22 Nov 01, 2001 Jkt 074193 PO 00000 Frm 00044 Fmt 6601 Sfmt 6602 E:\HR\OC\A193.XXX pfrm04 PsN: A193
39

entry vehicles—on a missile, the largest yield together with the utmost safety.

No one now needs to build nuclear weapons the way we did. Indeed, if START–III happens, then MIRV will be outlawed. Tens of

thousands of ready-to-shoot nuclear weapons are unnecessary now.

It would be risk and expensive folly for another nation to build

weapons now the way the United States has and especially without

hands-on testing.

We are very concerned about the nuclear weapons of other nations. We look for vulnerabilities, technological surprises, but we do

not copy their designs because we know how we prefer to build

them. I suggest that other nuclear powers, particularly the more

mature ones, have decided how they wish to construct nuclear

weapons.

Recent cases similar to Lee’s suggest that revocation of security

clearance and termination of employment might suffice for the offense. In another case, the defendant also got a year in a halfway

house. Inside the beltway, leaks to the media can best be described

as an on-going hemorrhage of classified information of all categories, certainly not limited to DOE, yet there is no attempt to apprehend the perpetrators. This raises the specter of selective enforcement of the laws.

Lee was discharged from the laboratory in March 1999 but not

arrested until December. Indeed, he was under surveillance for this

period but he was free. After arrest, he was held incommunicado,

which many felt was cruel and unusual punishment for a person

awaiting trial.

At the August bail hearing Lee had been incarcerated for 8

months. The judicial industry standard is 6 months for the constitutional speedy trial. The almost-daily publicity would have

made jury selection extremely lengthy, further delaying Lee’s day

in court from the proposed November trial date. Lee might have

spent well over a year in jail before the case was settled. Apparently Judge Parker came to similar conclusions and settled the

case and I salute him. Thank you.

Senator SPECTER. Dr. Richter, you testified at the bail hearing

for Dr. Lee?

Mr. RICHTER. Yes, sir.

Senator SPECTER. And what was the essence of the testimony

which you gave at that time about the nature of the classified information that Dr. Lee downloaded?

Mr. RICHTER. I tried to maintain the three categories that we

have discussed. The codes, I think there has been discussion of

whether it is 99 percent unclassified, et cetera. But, of course, the

materials data are classified and the problem set-ups are certainly

classified.

Senator SPECTER. Well, let us move to the input decks. What testimony did you give at Dr. Lee’s bail hearing about what he did

with the input decks?

Mr. RICHTER. Well, as far as I think the way we handled it there,

it was all handled together—the codes, the materials properties

and the input decks.

Senator SPECTER. Well, you testified at that time, ‘‘These codes

and their associated databases and the input file, combined with

40

someone who knew how to use them, could, in my opinion, in the

wrong hands, change the global strategic balance. They enable the

possessor to design the only objects that could result in the military

defeat of America’s conventional forces. They represent the gravest

possible security risk to the supreme national interest.’’ Is that an accurate statement?

Mr. RICHTER. I did not say that. It probably was said but I did

not say that.

Senator SPECTER. Well, we may have Dr. Younger’s statement on

that.

Dr. Younger, is that, in fact, your testimony?

Mr. YOUNGER. That is, Senator.

Senator SPECTER. Before responding to questions, would you care

to make an opening statement?

Mr. YOUNGER. I would.

STATEMENT OF STEPHEN YOUNGER, SCIENTIST,

DEPARTMENT OF ENERGY

Mr. YOUNGER. Thank you, Chairman Specter, for the opportunity

to discuss facts related to the case of Dr. Wen Ho Lee.

The United States developed the most advanced nuclear arsenal

in the world through a combination of complex computer calculations, laboratory experiments, and nuclear tests. Key to the design

process was a series of sophisticated computer codes, supported by

databases that describe the behavior of materials under extreme

temperatures and pressures. These codes allow us to make reasonably accurate predictions of the performance of nuclear devices,

predictions that were validated by nuclear tests.

I can say based on my review of the contents of the tapes made

by Dr. Lee that he did systematically collect a set of nuclear weapons design tools that would enable the possessor to perform sophisticated calculations of nuclear explosives. Further, Dr. Lee’s tapes

contained the actual designs of a number of nuclear explosives, including some weapons currently in the U.S. arsenal.

It has been said that much of the information contained on the

tapes made by Dr. Lee is available in the open literature. I believe

this to be misleading. First, while much of the fundamental physics

used in nuclear explosives design is unclassified, the specific combination of physics required to produce an adequate approximation

of nuclear weapons performance is a secret. Indeed, one of the most

sensitive pieces of knowledge in nuclear weapons design is what is

good enough to adequately model a weapon. It is always better to

put in more detail, to be more accurate, but even the largest computers in the world cannot handle all of the complexities involved

in a nuclear explosion. Experienced physicists could waste a great

deal of time trying various approximations before they found ones

that were sufficiently accurate and sufficiently fast for practical

calculations. United States design codes are the result of decades

of work involving hundreds of people who had access to data from

over 1,000 underground nuclear tests and atmospheric nuclear

tests.

Second, some of the information on plutonium and uranium and

other materials contained on the tapes was obtained through nuclear testing. It is not found in the open literature. Some of the

41

data contained on the tapes cannot be obtained by any means other

than nuclear testing.

Third, the tapes that Dr. Lee made contained the designs of actual nuclear devices, some of which have been successfully tested.

These designs are certainly not available in the open literature.

Providing unauthorized persons with the designs of our nuclear

weapons could enable them to advance their own weapons program

and to identify and exploit weaknesses in our nuclear defenses.

Based on my knowledge of foreign nuclear weapons programs, I

think I can say with confidence that our computer codes and databases are the finest in the world. No other country had the technology base that was necessary to perform some of the measurements that we made in our nuclear tests, measurements that were

used in the calibration and validation of the computer codes

downloaded by Dr. Lee.

In my opinion, it would be impossible, at least on a time scale

yielding strategic surprise, for any country in the world to duplicate the information contained on those tapes without doing nuclear tests, regardless of how much money they were wiling to

spend or the intelligence of their scientists. There are simply too

many unknowns that cannot be resolved without extensive nuclear

testing.

During my testimony at Dr. Lee’s detention hearing in December

1999, I stated that the information that he downloaded could, if

placed in the wrong hands, change the global strategic balance. I

believed that then and I believe it now. Although the information

itself does not convey all of the technology required to build deliverable weapons, it could advance the design effort enormously. Production of a weapon that would be a realistic threat still requires

special nuclear materials, special engineering and fabrication skills

and a capable scientific cadre.

Nuclear weapons are the most destructive weapons ever created

by humankind. They are the only devices that can threaten the

conventional military superiority of the United States. In the

wrong hands, the information downloaded by Dr. Lee could enable

a proliferant nation to design relatively crude but nevertheless effective nuclear weapons without nuclear testing. Those weapons

would certainly not be as sophisticated as the weapons contained

in the U.S. arsenal but they would be credible enough to influence

other nations, including our own.

A nation that already had nuclear weapons could use the codes

to help maintain their weapons or to improve them. The information contained on the tapes could also be used to find and exploit

potential vulnerabilities in U.S. weapons.

The United States expects our existing nuclear weapons to last

a long time. As other countries advance in their military capabilities, we must be prepared and be careful that our nuclear deterrent

is not placed at risk by a compromise of our designs.

In summary, it is my opinion that the information contained on

the tapes made by Dr. Lee could, in the wrong hands, pose a grave

danger to the national security of the United States. Thank you.

Senator SPECTER. Dr. Richter, you have been quoted as testifying

before Judge Parker that at least 99 percent of the nuclear secrets

42

that Dr. Lee downloaded to tapes were unclassified. Is that an accurate statement?

Mr. RICHTER. An accurate statement regarding the codes. I still

maintain that. The materials properties, I do not think I was referring to that at that time. If I did say it that way then I did not

mean it and I erred.

Senator SPECTER. So you were referring only to the codes and not

to the data files or the input decks?

Mr. RICHTER. That is what I was referring to.

Senator SPECTER. Dr. Younger, what was the factual basis for

your statement as to what Dr. Lee had, in fact, downloaded?

Mr. YOUNGER. I looked at detailed listings of the codes, the

names of the files. I obtained information on the contents of those

files and I knew by the names of the files what they indicated in

terms of a design capability.

Senator SPECTER. So you could determine all that information

from the files and you knew which files Dr. Lee had downloaded?

Mr. YOUNGER. I knew which files Dr. Lee had downloaded, yes.

Senator SPECTER. So that was your basis for determining what

the information was?

Mr. YOUNGER. That is correct.

Senator SPECTER. Dr. Richter, as you hear Dr. Younger describe

what Dr. Lee had downloaded, specifically when he says that information on plutonium and uranium and other materials contained

on the tapes obtained through nuclear testing, it is not found in the

open literature; some of the data contained on the tapes cannot be

obtained by means other than nuclear testing, would you agree or

disagree with what Dr. Younger said?

Mr. RICHTER. I would certainly agree with that, yes, sir.

Senator SPECTER. And Dr. Younger further testified, ‘‘Third, the

tapes that Dr. Lee made contained the designs of actual nuclear devices, some of which have been successfully tested. These designs

are certainly not available in the open literature.’’ Do you agree or disagree with that?

Mr. RICHTER. Yes, I agree, and I would like to elaborate.

Senator SPECTER. Please do.

Mr. RICHTER. It takes about—I am guessing—a foot-foot shelf of

drawings, specifications, material processes and so forth to build

one of these nuclear weapons, and that is not on the tapes. The

basic dimensions are but nothing else. I mean the metallurgical

processes of the materials, and so forth is not anywhere in there.

These are thought by many experts that I work with to be very,

very important and could possibly defeat our efforts to maintain

our nuclear stockpile, particularly the very sophisticated designs,

such as the W–88.

Senator SPECTER. Dr. Younger, Dr. Lee’s lawyers maintain that

information he is accused of downloading was classified at the secret level. Is that accurate or inaccurate?

Mr. YOUNGER. That is accurate.

Senator SPECTER. Is it true that secret information can be sent

through the mail?

Mr. YOUNGER. That is correct.

Senator SPECTER. Well, if it has only that classification, not even

top secret, and can be sent through the mail, is there some problem

43

with our classification system that you characterize that material

as sufficiently sensitive to change the global strategic balance?

Mr. YOUNGER. Well, Senator, it is not only secret data; it is secret restricted data. So in addition to—— Senator SPECTER. Could you define the difference between that

and top secret data?

Mr. YOUNGER. Secret is a category which will cause serious damage to the United States. Top secret will cause even more grave

damage to the United States. Restricted data concerns data associated with nuclear weapons and the procedures for the shipment of

classified information are determined by the Department of Energy.

Senator SPECTER. Well, if the information is so valuable as to

change the strategic global balance, why is it classified only at the

secret restricted level?

Mr. YOUNGER. Secret restricted data was considered to be a category sufficiently high to protect the information. Access to a secret

clearance does not guarantee access to nuclear weapons information. There is a further level of clearance required, specifically a Q

clearance.

Senator SPECTER. Is it not true that the Department of Energy

regulations say that restricted data can be sent through the mail,

as well as secret data?

Mr. YOUNGER. Correct.

Senator SPECTER. You mentioned the Q clearance. Would you define what that means?

Mr. YOUNGER. That is a full background check in addition to a

normal secret clearance.

Senator SPECTER. We are going to have a vote soon and there is

a great deal to be covered, but at this time I want to yield to my

distinguished colleague, Senator Grassley.

[Discussion off the record.]

Senator SPECTER. Dr. Younger, of the classified information on

the computer systems that Dr. Lee had access to at Los Alamos,

was there anything that was classified as top secret?

Mr. YOUNGER. Not on that system, no.

Senator SPECTER. Dr. Younger or Dr. Richter, do you gentlemen

have any insights as to what Judge Parker was referring to when

he said that he had been misled by the government? Dr. Younger?

Mr. YOUNGER. I do not.

Senator SPECTER. Dr. Richter.

Mr. RICHTER. I believe that what Judge Parker was referring to

was the fact that the testimony that upset the world’s strategic balance, he felt, was misleading. And I do not believe that the information there would upset the world’s strategic balance.

Senator SPECTER. Why do you feel that the information would

not upset the world’s strategic balance?

Mr. RICHTER. Because I think so many people in the world know

how to build nuclear weapons right now and they can build them

their way and they would say, ‘‘Hmm, isn’t this interesting how the

Americans do it?’’ and let it go at that. That is an opinion, of

course.

Senator SPECTER. Why do you believe that Judge Parker found

that particular factor to be misleading?

44

Mr. RICHTER. As I understand it, the only sorts of information a

court has is testimony and if the only testimony they have is that

it is upsetting the world’s strategic balance, then that would be

misleading. And then somebody can come wandering in, for example, myself, and says it really is not that serious, and he would say,

‘‘Gee, I only heard one side of the story.’’ Senator SPECTER. Well, when you testified, Dr. Richter, that 99

percent of it was unclassified, you were talking about the source

codes and not about the data files and the input decks, correct?

Mr. RICHTER. That is exactly right.

Senator SPECTER. Well, focusing for just a moment on the input

decks, what was there about that classification which was restricted or very serious data?

Mr. RICHTER. This is some of the details of how we build our

front-line nuclear weapons. Now, I spent a good deal of my career

in the latter days trying to figure out what other nations’ weapons

are.

Senator SPECTER. Well, are you saying as to the material in the

input decks that although classified, it was available to other nations?

Mr. RICHTER. It should not be. It should not be.

Senator SPECTER. Well, a few moments ago you said that so

many nations know how to build nuclear weapons that it does not

change the global strategic balance.

Now as to the input decks, would that be something known to

other nations?

Mr. RICHTER. No, it should not be. This is the way the United

States chooses to build its nuclear weapons.

Senator SPECTER. Well, as to the input decks, to what extent did

Dr. Lee make disclosures on input decks which were not available,

disclosures not available to other nations?

Mr. RICHTER. He should not have done it.

Senator SPECTER. Well, was that among the materials that Dr.

Lee did, in fact, disclose?

Mr. RICHTER. I am afraid yes. Yes, indeed. I saw one of the input

files myself.

Senator SPECTER. And what was that input file which you saw?

Mr. RICHTER. It shows the primary of the W–88.

Senator SPECTER. And to the extent that you can specify in this

open hearing, and we can adjourn to a closed hearing for any portion of this or other testimony which may require that, can you amplify what you just said about the W–88?

Mr. RICHTER. It shows the dimensions, but none of the specifications that go into all of the rest of it, and that is just not there.

Senator SPECTER. It shows the dimensions but not the specifications?

Mr. RICHTER. Of the materials and the processes to produce

them, the quality controls, surface finishes, machine surface finishes, and all the things it takes to build a mechanical object. And

as you go to the more advanced weapons that we have, for example, the W–88, these things become ever more important.

Remember we nuked Hiroshima in 1945 with an untested device,

so that is the other extreme. You can build an old clunker that will

go bang, but I am saying that when you get to the maximum numVerDate 11-MAY-2000 13:22 Nov 01, 2001 Jkt 074193 PO 00000 Frm 00050 Fmt 6601 Sfmt 6602 E:\HR\OC\A193.XXX pfrm04 PsN: A193
45

ber of MIRV’s on the missile and the largest yield you can get out

of it, you have to be ever more careful, and that is not all there.

Senator SPECTER. Well, you have testified that as to the input

decks, that was important information.

Mr. RICHTER. Oh, yes.

Senator SPECTER. And it did have a number of items as they related to the 88.

Mr. RICHTER. Yes, sir.

Senator SPECTER. But you are saying that it did not have all the

information.

Mr. RICHTER. It lacked a great deal. It is like the recipe I was

telling you about.

Senator SPECTER. Well then, what would your evaluation be as

to what damage there was to the United States in having that information from the input decks available to a foreign power?

Mr. RICHTER. It would let them know how the United States goes

about its nuclear weapon business. If they wish to emulate that,

they can try.

Senator SPECTER. And with respect to the third category of the

data files, what did you find as to what Dr. Lee had disclosed, if

anything, as to data files?

Mr. RICHTER. It would certainly help them. The point is that, for

example, China has been working on nuclear weapons since 1964.

They have a pretty good idea of what the plutonium equation of

state is.

Senator SPECTER. So then is the long and short of it, Dr. Richter,

that when you were quoted as saying that 99 percent was unclassified that you were really referring to the source codes only and

that, in fact, on the information from the input decks and the data

files, that those disclosures certainly were harmful to the United

States?

Mr. RICHTER. They did not help.

Senator SPECTER. Well, that is different from being harmful.

How about my question? Were they harmful or not?

Mr. RICHTER. The answer to the question is when I was looking

at other nations’ information, we mainly took the view of ‘‘Isn’t this

interesting, to see what they are doing?’’ But we did not rush to

the laboratory and put it into practice.

And I do not think the mature nations, for example, China,

which has been in the business since 1964, would say, ‘‘Gee, isn’t

that interesting?’’ and let it go at that. I would say it is marginally

harmful, at worst.

Senator SPECTER. Marginally harmful at worst.

Mr. RICHTER. Yes.

Senator SPECTER. We have not called all of the people who have

expressed opinions on this, and we may, but Dr. Richard Krajek

was quoted as saying that in the files I had the ‘‘crown jewels of

the U.S. nuclear arsenal.’’

Was that an accurate statement in your opinion, Dr. Richter, or

an overstatement?

Mr. RICHTER. I think it was an overstatement to the effect that

we were building a Cold War weapon and the Cold War is over now

and the Cold War ended when the Soviet Union collapsed, I believe

in 1989.

46

So all of a sudden the terror, the balance of terror changed and

you do not have to build a weapon that way anymore. It is very

expensive, very costly.

Senator SPECTER. Well, while it is true that the Cold War is over,

or so we hope, with the Soviet Union and now with Russia, there

are other major threats to national security in the world.

Mr. RICHTER. Yes.

Senator SPECTER. So the question then becomes whether that information in the wrong hands could pose a major threat to the

United States.

What we are trying to get a handle on here and these are very

complex subjects, we are trying to get a handle on just how serious

this information was. When you talk about changing the global

strategic balance, that is cataclysmic. When you talk about crown

jewels, you are talking about the most important information.

Dr. Paul Robeson stated that the information posed a truly devastating risk to national security. Would you agree or disagree with

that, Dr. Richter?

Mr. RICHTER. I do not agree with it.

Senator SPECTER. Why not?

Mr. RICHTER. In order to develop the kind of nuclear weapons

that the United States, Russia, China and Britain and France

have, you need to have four nuclear materials—plutonium, uranium, tritium, and lithium-6. Now if you go into the more recent

aspirants to it, like India and Pakistan, they do not have all of

those and without those, they do not have the ingredients. They do

not even have the kitchen.

So what I am saying is that there is a large dichotomy between

the participants in this nuclear stand-off and the big four I have

named—the United States, Russia, Britain and France. The rest of

them, it is not going to help them much.

Senator SPECTER. Can other countries develop the so-called

kitchen?

Mr. RICHTER. Yes, they can.

Senator SPECTER. And would this information then be of great

significance to them if they develop the kitchen?

Mr. RICHTER. It could be, if they want to spend the national resource on it.

Senator SPECTER. Dr. Younger, do you agree or disagree with the

statement attributed to Dr. Richard Krajek that the information in

the files constituted the crown jewels of the U.S. nuclear arsenal?

Mr. YOUNGER. I agree.

Senator SPECTER. And do you agree or disagree with what Dr.

Paul Robeson said, that the information posed a truly devastating

risk to national security?

Mr. YOUNGER. I agree.

Senator SPECTER. Dr. Younger, what is your response to what

Dr. Richter has said with respect to those four items? Are they indispensable ingredients for another nation to pose a really serious

threat to U.S. national security?

Mr. YOUNGER. A nation needs at least a capability to produce enriched uranium or plutonium and beyond that, the additional materials will improve the efficiency of the weapons. But a basic capability can be obtained with either uranium or plutonium.

47

Senator SPECTER. So you are saying, contrary to Dr. Richter’s assertion, that you do not need all four of those elements.

Mr. YOUNGER. You need all four elements for a sophisticated nuclear weapon. However, you can make a basic nuclear weapon with

only one or two.

Senator SPECTER. We are now 15 minutes into the vote, a 20-

minute vote, so I am going to have to recess the hearing temporarily. There is a second vote and we shall return as promptly as

we can.

The hearing is now recessed.

[Recess.]

Senator SPECTER. The hearing will now resume.

Dr. Younger and Dr. Richter, what we are struggling with here

is to understand the sequence of events which led Judge Parker to

change his view. And you, Dr. Younger, and others testified before

Judge Parker in December at the bail hearing and you, Dr. Richter,

came to testify in August after there was later consideration as to

whether the bail ought to be changed.

And there is another element here and that is the element about

whether Dr. Lee continued to have possession of the tapes and

there has never been a showing that the tapes continued to be in

existence, at least at this point, with Dr. Lee’s contention that the

tapes have been destroyed, so that had Dr. Lee not had dominion

over the tapes, there is no reason to keep him in custody because

he cannot tell somebody where the tapes are and have them disclosed to some third party.

And Judge Parker said he found clear and convincing evidence

to keep Dr. Lee in detention but then apparently that had slipped

by the time Dr. Richter testified.

Dr. Richter, you work for Department of Energy, of course, right?

Mr. RICHTER. I am a retiree and I go back to the laboratory a

couple of days a week as a laboratory associate.

Senator SPECTER. And you have worked for DOE?

Mr. RICHTER. I worked for——

Senator SPECTER. And you still do to the extent you have just described.

Mr. RICHTER. Exactly.

Senator SPECTER. And Dr. Younger, of course, you are an employee of the Department of Energy.

Mr. YOUNGER. I am an employee of the University of California,

which is a contractor to the Department of Energy.

Senator SPECTER. OK; so your working for the Department of Energy is subject to the contract through the university.

Mr. YOUNGER. Yes, Senator.

Senator SPECTER. Dr. Richter, were you consulted by the government for an evaluation of the damage that this information would

have done to the United States prior to the December bail hearing?

Mr. RICHTER. No, sir. You mean August, I hope.

No, I was not consulted by the government. I had one interview

with the prosecution team and that is all.

Senator SPECTER. When?

Mr. RICHTER. Perhaps April, sometime in that time frame.

Senator SPECTER. Did you tell them essentially the same things

you have testified here today?

48

Mr. RICHTER. Pretty much, yes, sir.

Senator SPECTER. Dr. Richter, do you know if the government,

the Department of Justice, made an effort prior to the December

bail hearing to develop a point of view such as you have testified,

which downplays the importance of this information?

Mr. RICHTER. I have no idea because I was not consulted.

Senator SPECTER. Dr. Younger, do you know if the government

made any effort to obtain, as Judge Parker put it, a more balanced

view prior to the bail hearing in December 1999?

Mr. YOUNGER. Senator, I was not privy to all of the discussions

of the prosecution. I merely provided a technical opinion when we

were asked for it. I do not know that.

Senator SPECTER. Describe briefly just what the government said

to you. Who contacted you for the Department of Justice?

Mr. YOUNGER. I was contacted by the U.S. Attorney’s Office in

Albuquerque and I was asked to provide my opinion on—— Senator SPECTER. Who specifically in the U.S. Attorney’s Office?

Mr. YOUNGER. Mr. Kelly, U.S. attorney, and Robert Gorence, the

assistant U.S. attorney.

Senator SPECTER. And what did they say to you?

Mr. YOUNGER. They asked me to provide my opinion as to the

importance of the information that Dr. Lee downloaded from a

technical perspective. They also asked for a primer on nuclear explosives design and a history of the codes that were on the tapes.

Senator SPECTER. You are not the judge, Dr. Richter, but do you

think that there was clear and convincing evidence that the information Dr. Lee had rose to the level of being the crown jewels or

extraordinarily sensitive for the United States government?

Mr. RICHTER. They are certainly sensitive but not by any stretch

of the imagination crown jewels.

Senator SPECTER. Dr. Younger, again you are not the judge but

in your view, do you believe that taking the totality of the evidence,

your statements, Dr. Richter’s statements, the other opinions rendered, that there is clear and convincing evidence that this information amounted to the crown jewels?

Mr. YOUNGER. If the design of the most sophisticated nuclear

weapons on the planet are not the crown jewels of nuclear security,

I do not know what is.

Senator SPECTER. OK. I take that to be a yes?

Mr. YOUNGER. It is a yes.

Senator SPECTER. OK; we have not talked to—Senator Grassley

has indicated an interest in getting Judge Parker’s views and I

think that is a solid line. So far, what has been done is to talk to

his law clerk and it may be that by the time we pursue this matter

further, that we will want to talk to Judge Parker. Whether Judge

Parker will want to talk to us is up to Judge Parker but if we cannot find the answers as to what Judge Parker had in mind, it may

be a direct route to talk to Judge Parker.

I just want to make that comment because Senator Grassley had

made a reference to Judge Parker, so that the information would

be explicit as to what we have done and what we have not done.

Mr. Vrooman, thank you for joining us. You are now an ex-employee of the Department of Energy.

Mr. VROOMAN. Yes, sir.

49

Senator SPECTER. And you are living in—— Mr. VROOMAN. Bozeman, Montana.

Senator SPECTER. Montana, and you have come a long distance,

so we appreciate your being here and we look forward to your opening statement.

STATEMENT OF ROBERT VROOMAN, FORMER

COUNTERINTELLIGENCE OFFICER, DEPARTMENT OF ENERGY

Mr. VROOMAN. Thank you.

Chairman Specter and members of the committee, I am honored

to have the opportunity to testify before this committee about the

investigation of Wen Ho Lee.

In this opening statement I will address three issues: ethnic

profiling, FBI and Los Alamos cooperation during the Kindred

Spirit investigation, and the 1994 FBI investigation of Dr. Lee.

Many people have questioned shy the investigators into the original allegations of Chinese nuclear espionage failed to look beyond

Los Alamos National Laboratory and Dr. Lee. Those asking this

question include such distinguished people as former Senator Rudman, Senators Thompson and Lieberman, and recently FBI Director Louis J. Freeh. It is my opinion that the Kindred Spirit investigators had a subtle bias that the perpetrator had to be ethnic

Chinese. I base my opinion on their comments and actions prior to

and during the investigation.

These comments include noting something nefarious about the

number of Chinese restaurants in Los Alamos, the number of Chinese postdoctoral employees and suggesting that DOE should not

allow ethnic Chinese to work on classified programs.

In April 2000, a Los Alamos scientist who worked on intelligence

programs wrote a letter to the employee news bulletin. He said,

‘‘While I was assigned to NSI–9’’—that is the Intelligence Division—‘‘I supported on a part-time basis the counterintelligence investigation into the alleged Chinese espionage at Los Alamos.

Based on my experience and observations, I concluded that racial

profiling of Asian-Americans as a result of the investigation indeed

took place, but principally at the Department of Energy. Further,

DOE personnel directed some Los Alamos National Laboratory

staff to undertake research that profiled Asians and Asian-Americans at the laboratory. I do not believe any of us were happy with

this. I feel insulted personally and professionally that the DOE is

seeking to spread the tarnish that belongs on it by having the

weapons complex undergo the mandatory diversity stand-down by

May 5.’’

Now the author of the above letter is referring to a request from

DOE headquarters to Los Alamos and Livermore for a list of Chinese-Americans and the programs that they were working on. Both

laboratories refused to provide such a list because the request was

clearly in violation of Executive Order 12333.

Director Freeh recently testified to a joint hearing of the Intelligence and Judiciary Committees that the FBI opened a case on

Lee based on the DOE administrative inquiry which stated that,

and I am quoting now, ‘‘Wen Ho Lee appears to have the opportunity, means and motivation’’ to compromise the W–88 information. Director Freeh is correct that the DOE inquiry stated this, but

50

I would like to add that every time Lee’s motivate was discussed,

it came down to his ethnicity. There was never any other motive

discussed.

I would also like to note that the DOE inquiry was flawed because Lee did not have ready access to all the W–88/Mark 5 reentry system or other U.S. system that was similarly compromised.

He would seem, at best, to be only one source of the complete leak.

The FBI, of course, had no way of knowing this unless the DOE

inquiry was a complete and rigorous investigation.

In spite of our reservations about the Kindred Spirit investigation, we cooperated fully with the FBI in all subsequent investigations involving Dr. Lee. From the day the FBI informed us that

they intended to conduct an investigation into Dr. Lee, FBI representatives expressed similar reservations about the Kindred Spirit analysis. In my opinion, the FBI should not have accepted this

case until certain issues were resolved, and I am willing to elaborate on these issues in any closed session if the committee desires.

As a result of serious questions about the DOE inquiry, the FBI

did not assign an agent to the case full-time. It was added to one

agent’s already full caseload. The failure to aggressively resolve the

allegations against Dr. Lee was a great source of frustration both

to Los Alamos Director Sig Hecker and to me.

On February 14, 1997 I had an acrimonious meeting with the

FBI counterintelligence squad chief in Albuquerque and he agreed

to assign an agent to the case full-time. After this occurred we saw

some progress on the case, including a FISA request.

On October 15, 1997 that agent told me that he had to stop

working on the Wen Ho Lee case to work on the Peter Lee case

and he requested our assistance in that investigation. Once again

we had no agent assigned full-time to the Wen Ho Lee case and

that was the situation when I retired from Los Alamos on March

13, 1998.

On February 23, 1994, during an officially approved six-person

Chinese delegation to Los Alamos, Dr. Lee met with a member of

that delegation. This meeting occurred in the presence of all the

United States and Chinese participants, however, and was reported

in writing to the FBI by a U.S. participant. This document is classified but is available to the committee from the author if they would

like to have it.

I was not aware that this meeting resulted in an FBI investigation until Director Freeh testified to that on September 26, 2000.

For the record, let me state that this investigation occurred without

any request for assistance from Los Alamos. We were not aware of

any renewed FBI interest in Dr. Lee until July 3, 1996.

We should not lionize Dr. Lee. He has much to answer for. On

the other hand, he was not treated fairly. There are many examples, but I am most disturbed by the leaking of the investigation,

along with his name, to the media. This single act destroyed the

integrity of the investigation, as well as adversely impacting Dr.

Lee. As a result of this, I doubt if we will ever solve the mystery

of how the Chinese obtained U.S. nuclear weapons secrets.

Finally, I am concerned about the collateral damage from the Lee

case, particularly the adverse impact it has had on our weapons

labs. Former Senator Howard Baker and former Representative

51

Lee Hamilton recently reported that the arbitrary security changes

at the national labs has damaged morale, productivity and recruitment.

In my opinion, this is all the more outrageous because the national labs have had and continue to have good security. If you look

at what really counts, which are results, not audits of paperwork

and procedures, security at the labs has been better than all other

government agencies. The results are reflected in the number of

people in the last 50 years who have been convicted, confessed to

or fled the country to avoid prosection for espionage. When we look

at this by organization, the results reflect favorably on the DOE

complex. We have two cases in the DOE and neither case involved

the compromise of nuclear weapons. During the same time period

there were 10 cases in the CIA, three in the FBI and seven in the

National Security Agency and over 80 in the Department of Defense. When one considers that the DOE population is at least an

order of magnitude larger than all but the DOD, the record is impressive.

I believe that we must act quickly to repair the damage to our

national labs so that the talent in these labs is available to meet

the challenges of the 21st century. Thank you.

Senator SPECTER. Thank you very much, Mr. Vrooman.

Before we go to questions, if it is all right, Senator Grassley, we

will hear an opening statement from Mr. Notra Trulock.

Mr. Trulock, let me say for the record that if there are any questions asked of you which you prefer not to answer, there has been

some publicity about your being under investigation, so there may

be some sensitive matters. We appreciate your being here but because of what we had heard about an investigation, we decided not

to call on you but we appreciated your call and your willingness to

come forward, but I want you to feel entirely comfortable. If something gets close to the line and you are represented by counsel, so

he is here to protect you and I discussed the ground rules with Mr.

Klayman yesterday to be clear that you would say only what you

felt comfortable saying.

So within those guidelines, you may proceed.

STATEMENT OF NOTRA TRULOCK III, FORMER INTELLIGENCE

CHIEF, DEPARTMENT OF ENERGY, ACCOMPANIED BY LARRY

KLAYMAN, COUNSEL

Mr. TRULOCK. Thank you, Senator. I appreciate that.

Senator Grassley, good morning. My name is Notra Trulock. I am

the former director of intelligence at the Department of Energy. I

wish to thank the members of the Senate Judiciary Committee and

Senator Specter, you personally, for providing this opportunity to

speak out on the facts of the administrative inquiry into what is

known as the Kindred Spirit Chinese espionage case.

For months I have remained silent while my role in the investigation was discussed in the media, in the course of Dr. Lee’s detention hearings and up here on Capitol Hill. I must tell you that

neither my family, my friends, nor I can recognize the individual

that has been portrayed and depicted in these very public proceedings. And I wish to thank the committee for providing me this

opportunity to try to set the record straight.

52

Much of what you have heard or read about DOE’s conduct of the

administrative inquiry into Chinese nuclear espionage is just plain

wrong. Much of what you have heard or read about my role in that

inquiry is worse than wrong; it is defamatory. Indeed, I have been

forced to file libel and slander lawsuits against Mr. Charles Washington, Mr. Robert Vrooman, Energy Secretary Bill Richardson and

Dr. Wen Ho Lee.

I have prepared a formal statement for the record. I request that

it be entered at this time.

Senator SPECTER. Without objection it will be made a part of the

record.

Mr. TRULOCK. I will confine myself to three main points. First,

what was the administrative inquiry? How was it conducted, and

by whom?

The DOE administrative inquiry was conducted with the full cooperation and participation of the Federal Bureau of Investigation.

The FBI approved our methodology and approach, provided an experienced agent to participate with DOE during site visits to the

DOE labs, reviewed and approved our draft final inquiry report,

and enthusiastically accepted our report in June 1996.

The DOE/FBI’s team’s first visit to the laboratory occurred in

January 1996. DOE at that point, at least DOE, had no preconceived ideas or notions about possible suspects. Indeed, DOE

first learned of Dr. Wen Ho Lee when he was brought to our attention by Robert Vrooman in January 1996, not in October 1995, as

the FBI has told Congress and the President’s Foreign Intelligence

Advisory Board.

The administrative inquiry was a records check, a records check

as is performed in routine security reviews on a daily basis in

Washington, nothing more, nothing less. DOE, by statute, is prohibited from conducting anything more than a record check and

then only at DOE facilities. By law, we were not authorized to examine records at Department of Defense facilities or at Department

of Defense contractors. We repeatedly told the FBI that W–88 information might reside at these facilities but that we at DOE were

unauthorized to extend our inquiry to those facilities.

Furthermore, we did not limit our search to Los Alamos. The

DOE/FBI team visited Los Alamos, Sandia National Laboratory in

Albuquerque and Livermore National Laboratory outside of San

Francisco. Further, we had records checked at Rocky Flats in Denver, CO and Pantex in Amarillo, TX, both industrial facilities that

would have been involved in the production of the W–88.

Our final report listed 12 investigative leads for the FBI, not just

from Los Alamos but also from Livermore. Not just Asian-Americans but also Caucasians from both laboratories. In fact, it was the

FBI that focussed solely on Dr. Lee. DOE believed that the FBI

would pursue all 12 leads with equal vigor and diligence.

Robert Vrooman and Charles Washington have alleged that in

1996 they told me that no evidence concerning Dr. Lee existed and

that ethnic profiling had governed my actions. Let me state this

clearly, recognizing that I am under oath. At no point in 1996, 1997

or 1998 did Robert Vrooman or Charles Washington express any

concern, disagreement, dissent or protest with the conduct of the

administrative inquiry or the conduct of the inquiry’s report.

53

Mr. Washington was the acting director of the Department of Energy’s Office of Counterintelligence during the conduct of the administrative inquiry. He supervised the DOE individuals conducting the inquiry. He reviewed and approved DOE’s proposed administrative inquiry methodology. He reviewed and approved the

inquiry team’s travel. He reviewed and approved the inquiry team’s

report and approved its transmission to the FBI.

One of the most absurd allegations surfaced thus far, which was

reported in the Washington Post, the Los Angeles Times and elsewhere, concerns the contents of a memo purportedly sent to me by

Mr. Washington in 1996. Mr. Washington has repeatedly claimed

that he warned me in the memo there was no evidence against Dr.

Lee and the case should be closed. The Post even claimed to have

a copy of the memo. In fact, I have seen a copy of that memorandum and I recall clearly its contents. The memorandum was

dated May 16, 1996. The memo makes no mention of Dr. Lee. It

recommends that we transmit the record of our inquiry to the FBI

and it notes that DOE is ‘‘close to becoming involved in an espionage investigation, which we do not have the authority to do.’’ In February 2000, I wrote to Secretary Richardson requesting

that he make this memo available to the Justice Department to

clear up these spurious allegations. My information is that DOE

has refused to provide that memo to Justice or to the appropriate

oversight committees on Capitol Hill, as it has been with so many

documents over the past two years that are relevant to the oversight function of this and other committees on Capitol Hill.

Mr. Vrooman was present at our initial briefings for the FBI. He

assisted our team during their visit to Los Alamos in January

1996. He was the first to identify Dr. Lee to our team during that

visit and recommended that we focus our attention on him. He was

present at our briefing for the FBI in the late spring of 1996 and

I personally saw Vrooman at least six times over the course of the

next three years. My secretary kept careful records of in-coming

phone calls throughout this period. At no time did Vrooman call me

to discuss his concerns.

He was a key participant in a DOE/FBI Los Alamos meeting in

April 1997 held at Los Alamos that focussed on the FBI’s handling

of the Lee investigation to that point. At no time during that or

any other meeting did Vrooman protest or express any dissent or

concern to the FBI or DOE’s participants about the FBI’s investigation of Lee. In each instance, as the resident Los Alamos counterintelligence official, Vrooman willingly cooperated with the FBI in

its handling and approach to Dr. Lee.

Finally, Vrooman and especially Mr. Washington have alleged

that my actions were motivated by my racist views toward minority

groups—quote, closed quote. In fact, the facts of my management

tenure at DOE put the lie to this allegation. I repeatedly opened

new career opportunities for women and minorities during my tenure and twice received awards in recognition of my efforts on behalf of women and minority employees within my office from the

DOE chapters of Federally Employed Women and Blacks in Government. I have brought with me today one photograph that was

taken during one of those award ceremonies. I would be happy to

provide it to the committee.

54

The Director of Central Intelligence, George Tenet, awarded the

highest intelligence community medal for distinguished service to

one of the key participants and managers in the counterintelligence

aspects of the Kindred Spirit case. He also awarded and rewarded

other DOE managers and laboratory scientists, including Dr. John

Richter, for their contributions to the U.S. intelligence community

in the Kindred Spirit case during my tenure as director of intelligence.

Allegations made by disgruntled employees from the DOE Office

of Counterintelligence against me were investigated by the department and repeatedly found to be baseless. Time after time the conclusion of independent outside investigators, ‘‘that complainant was

not discriminated against with respect to the matters raised in his

complaints.’’ Mr. Washington has alleged that he won his complaint but the

settlement arrived at after I left the department clearly states that

it shall not constitute an admission of liability by the Department

of Energy. Secretary Richardson’s willingness to settle this case

has caused great discontent within the department. Clearly the settlement serves Secretary Richardson’s larger purposes.

Mr. Washington has alleged that I assaulted him and this allegation has been repeated in the national media. I have with me today

the 1997 police report of the final action on that allegation. The

conclusion of that report is, ‘‘Based on the facts of the case, no assault occurred.’’ I repeatedly requested the department to take action on this false allegation but the department declined to do so.

Robert Vrooman has alleged that I stated no ethnic Chinese

should be allowed to work on U.S. nuclear weapons program. That

statement is categorically false. In fact, I stopped efforts by senior

DOE managers, including Assistant Secretary Victor Reese and Director of the Office of Nonproliferation and National Intelligence

Kenneth R. Baker, including several others still at the department,

to compile a database on the ethnicity of American citizens—American citizens with access to classified nuclear weapons information.

I thought this was an outrageous overreaction to a very serious

problem.

In fact, we were concerned about our ability to sustain counterintelligence safeguards in light of the explosion in the numbers of

foreign nationals at the laboratories, particularly those from countries on the sensitive country list, like Russia, India and China.

But we were hardly alone in our concerns. The Government Accounting Office repeatedly cited DOE for its lack of counterintelligence and security safeguards to protect sensitive information in

light of the ever-increasing numbers of sensitive country foreign

nationals at our labs.

A 1997 FBI report on DOE counterintelligence made the same

observation and recommended a number of fixes. Sadly, DOE management resisted these recommendations.

In 1997 FBI Director Louis Freeh told DOE managers that if

DOE failed to address its security vulnerabilities, then the Congress would do it for DOE. He was right. While many now decry

the heavy-handed security regime imposed by the Hill on the labs,

they only have DOE managers to thank for the state of affairs in

the laboratories today. These officials resisted internal reforms in

55

1997 and even delayed implementation of the mandates of the 1998

presidential decision directive until well into 1999 and the year

2000.

In conclusion, I would point out that it is now fashionable to express doubts about whether Chinese nuclear espionage even occurred. I would remind the committee that the unclassified intelligence community damage assessment, published in May 1999,

concluded that the Chinese had indeed obtained through espionage

U.S. nuclear weapons design information, including on the W–88

Trident D–5 warhead.

Further, the assessment concluded that information probably accelerated China’s efforts to develop modern nuclear weapons. That

conclusion mirrors very accurately the conclusion arrived at by a

prestigious group of laboratory nuclear weapons scientists in 1995.

I would add that Dr. John Richter was an important member of the

group that formulated and developed that assessment.

The CIA reiterated their judgments about Chinese espionage

later in 1999 in an estimate on ballistic missile developments. I am

not aware that the DCI or any other intelligence community

spokesman have contradicted or revised this estimate.

So for 5 years now we have been aware of the Chinese acquisition of some of our most sensitive nuclear weapon secrets. Are we

any closer today to determining the source of this compromise? I

am afraid that the answer is no.

That concludes my statement. I am happy to take questions.

[The prepared statement of Mr. Trulock follows:]

PREPARED STATEMENT OF NOTRA TRULOCK III

My name is Notra Trulock, III, and I am the former Director of Intelligence at

the Department of Energy. I wish to thank the members of the Senate Judiciary

Committee, and Senator Arlen Specter, for providing this opportunity to speak out

on the facts of the Wen Ho Lee investigation. For months, I have remained silent

while my role in the investigation was discussed in the media, in the course of Dr.

Lee’s bail hearings, and on Capitol Hill. Neither my family, my friends, nor I can

recognize the individual portrayed in these very public proceedings. I wish to thank

the Committee for providing me this opportunity.

Much of what you have read or heard about DOE’s conduct of the Administrative

Inquiry into Chinese nuclear espionage is just plain wrong. Much of what you have

heard or read about my role in that inquiry is worse than wrong, it is defamatory.

Indeed, I have been forced to file libel and slander lawsuits against Mr. Charles

Washington, Mr. Robert Vrooman, Energy Secretary Bill Richardson, and Dr. Wen

Ho Lee.

I request that my formal statement be entered for the record. Let me discuss

three main points.

1. What was the Administration Inquiry, how was it conducted and by whom?

The DOE Administrative Inquiry was conducted with the full cooperation and

participation of the FBI. The FBI approved our methodology and approach, provided

an experienced agent to participate with DOE during site visits to the DOE labs,

reviewed and approved our draft final inquiry report and enthusiastically accepted

our report in June 1996. The DOE–FBI team’s first visit to a lab site occurred in

January 1996; DOE, at least, had no preconceived ideas or notions about possible

suspects. Indeed, the DOE team first learned of Dr. Wen Ho Lee from Robert

Vrooman in January 1996, not in October 1995 as the FBI told Congress and the

PFIAB.

The AI was a records check as is performed in routine security reviews on a daily

business. Nothing more, nothing less. DOE by statue is prohibited from conducting

anything more than a records check, and then only at DOE facilities. By law, we

were not authorized to examine records at DOD facilities; we repeatedly told the

FBI that W88 information might reside at these facilities, but that we DOE were

unauthorized to look there.

56

We did not limit our search to Los Alamos. The DOE–FBI team visited Los Alamos, Sandia, and Livermore. We had records checked at Rocky Flats and Pantex.

Our final report listed 12 ‘‘investigative leads’’ for the FBI, not just from Los Alamos

but also from Livermore. In fact, it was the FBI that focused solely on Dr. Lee; DOE

believed that the FBI would pursue all 12 leads equally.

2. It is alleged that Robert Vrooman and Charles Washington told me in 1996

that no evidence existed concerning Dr. Lee and that ethnic profiling governed my

actions.

Let me state this clearly: at no point in 1996, 1997, or 1998 did Robert Vrooman

or Charles Washington express any concern, disagreement, dissent, or protest with

the conduct of the Administrative Inquiry or the content of the Inquiry’s report. Mr.

Washington was the Acting Director of DOE/CI during the conduct of the Administrative Inquiry; he supervised the DOE individuals conducting the inquiry, he reviewed and approved DOE’s proposed AI methodology, he reviewed and approved

the inquiry team’s travel, he reviewed the inquiry team’s report and approved its

transmission to the FBI.

One of the most absurd allegations thus far, which has been reported in the

Washington Post, LA Times and elsewhere, concerns the contents of a memo sent

to me by Charles Washington in 1996. Mr. Washington has repeatedly claimed that

he warned me in the memo that there was no evidence against Dr. Lee and that

the case should be closed. The Post even claimed to have a copy of the memo. In

fact, I have seen a copy of the memorandum, dated May 16, 1996.

Suffice to say the memo makes no mention of Dr. Lee, it recommends that we

transmit the record of our Inquiry to the FBI, and it notes that DOE is ‘‘close to

becoming involved in an espionage investigation, which we do not have the authority to do.’’ In February 2000, I wrote to Secretary Richardson requesting that he

make this memo available to the Justice Department to clear up these spurious allegations. My information is that DOE has refused to provide that memo to Justice

or to the appropriate oversight committees on Capitol Hill. As it has with so many

documents over the past two years that are relevant to the oversight function of this

and other committees on Capitol Hill.

Mr. Vrooman was present at our initial briefings for the FBI, he assisted our team

during their visit to Los Alamos in January 1996, he was the first to identify Dr.

Lee to our team during that visit and recommended that we focus our attention on

him, he was present at our briefing for the FBI in late Spring 1996, and I personally

saw Vrooman at least six times over the course of the next three years. My secretary kept records of incoming phone calls throughout this period; at no time, did

Vrooman call to discuss his concerns with me. He was a key participant in a DOE–

FBI–Los Alamos meeting in April 1997 that focused upon the FBI’s handling of the

Lee investigation to that point. At no time during that or any other meeting did

Vrooman protest or express any dissent or concern to the FBI or DOE participants

about the FBI’s investigation of Lee. In each instance, as the resident Los Alamos

CI official, Vrooman willingly cooperated with the FBI in its handling and approach

to Dr. Lee.

3. Finally, Mr. Vrooman and especially Mr. Washington have alleged that my actions were motivated by my ‘‘racist views toward minority groups.’’

The facts of my management tenure at DOE put the lie to this allegation. I repeatedly opened new career opportunities for women and minorities during my tenure and twice received awards in recognition of my efforts on behalf of women and

minority employees within my office from the DOE chapters of FEW and Blacks in

Government. The Director of Central Intelligence awarded the highest Intelligence

Community medal for distinguished service to one participant in KINDRED SPIRIT

case; he also rewarded other DOE managers and Laboratory scientists for their contributions to the U.S. Intelligence Community during my tenure.

Allegations made by disgruntled employees from the DOE Office of Counterintelligence against me were investigated by the Department and repeatedly found to be

baseless. Time after time, the conclusion of independent outside investigators: ‘‘that

Complainant was not discriminated against with respect to the matters raised in

his complaints.’’

Mr. Washington has claimed that he won his complaint, but the settlement, arrived at after I had left the Department, states clearly that it ‘‘shall not constitute

an admission of liability’’ by DOE. Secretary Richardson’s willingness to settle this

case has caused great discontent in the Department, but the settlement served Richardson’s larger purposes.

Mr. Washington has alleged that I assaulted him and this allegation has been repeated in the national media. I have the Federal Protective Service’s 1997 final report of the incident. The conclusion: ‘‘based on the facts of the case no assault ocVerDate 11-MAY-2000 13:22 Nov 01, 2001 Jkt 074193 PO 00000 Frm 00062 Fmt 6601 Sfmt 6621 E:\HR\OC\A193.XXX pfrm04 PsN: A193
57

curred.’’ I repeatedly requested that the Department take action on this false allegation, but the Department refused to do so.

Robert Vrooman has alleged that I stated that no ethnic Chinese should be allowed to work on U.S. nuclear weapons programs. Again, categorically false. In fact,

I stopped efforts by senior DOE managers, including several still at the Department,

to compile a database on the ethnicity of American citizens with access to classified

nuclear weapons information. I thought this an outrageous overreaction to a serious

problem.

We are concerned about our ability to sustain counterintelligence safeguards in

light of the explosion in numbers of foreign nationals at the labs, particularly those

from countries on the sensitive list like Russia, India, and China. We were hardly

alone in our concerns; the Government Accounting Office repeatedly cited DOE for

its lack of safeguards to protect sensitive information in light of the ever-increasing

numbers of sensitive country foreign nationals at our nuclear weapons labs. A 1997

FBI report on DOE CI made the same observation and recommended a number of

fixes; sadly, DOE management resisted these recommendations.

FBI Director Louis Freeh told DOE in 1997 that if DOE management failed to

address its security vulnerabilities, the Congress would do it for DOE. He was right;

while many now decry the heavy-handed security regime imposed by the Hill on the

labs, they only have DOE management to thank for the state of affairs in the labs

today. These officials resisted internal reforms in 1997 and even delayed implementation of the mandates of the 1998 Presidential Decision Directive until well into

1999 and 2000.

In conclusion, I would point out that it is now fashionable to express doubts that

Chinese nuclear espionage even occurred. I would remind the Committee that the

unclassified Intelligence Community Damage Assessment, published in May 1999,

concluded that the Chinese had indeed obtained through espionage U.S. nuclear

weapons design information, including on the W88 Trident D5 warhead. Further,

that information probably accelerated China’s efforts to develop modern nuclear

weapons. That conclusion mirrors very accurately the conclusion arrived at by a

prestigious group of laboratory nuclear weapons scientists in 1995. The CIA reiterated their judgments about Chinese espionage later in 1999 in an estimate on ballistic missile developments. I am not aware that the DCI or any other Intelligence

Community spokesmen have contradicted or revised this estimate.

So, for over 5 years now, we have been aware of the Chinese acquisition of some

of our most sensitive nuclear weapons secrets. Are we any closer today to determining the source of this compromise?

Senator SPECTER. Thank you very much, Mr. Trulock.

Senator Grassley.

Senator GRASSLEY. Mr. Vrooman, I would like to have you elaborate on your comment that whenever Dr. Lee’s motive was discussed it came down to ethnicity. Could you be specific about what

was said and by whom?

Mr. VROOMAN. The first example that comes to mind is during

the Thompson-Lieberman hearings. They were in closed session.

Can I do that here or would you prefer I——

Senator GRASSLEY. I will let the chairman make a ruling as to

whether or not he can say something here that was said in the

closed Lieberman hearing.

Senator SPECTER. Well, I think that depends upon Mr. Vrooman’s

assessment as to the propriety of the statement in open hearing.

That is really best judged by the witness.

Senator GRASSLEY. OK; I would ask you to tell us if you feel like

you can because I would like to get as much of this out in the open

as we can.

Mr. VROOMAN. Well, the Department of Justice representative

asked the FBI what Lee’s motive was because it was not clear to

him and the response was an elaboration on how the Chinese focus

their efforts on ethnic Chinese. That is one example. And there are

others, conversations over the years since this investigation proceeded, that that was the only motive.

58

Senator GRASSLEY. OK; could you point to any documentation

that would back up the point that you just made?

Mr. VROOMAN. No, sir, I cannot.

Senator GRASSLEY. Or the points that you are making about ethnicity being of prime concern?

Mr. VROOMAN. I do not believe there are any documents.

Senator GRASSLEY. You state, Mr. Vrooman again, you state that

the leaking of Dr. Lee’s name had an adverse impact not only on

Dr. Lee but also on the integrity of the investigation into how the

Chinese obtained U.S. nuclear secrets. It is understandable how

the leak would have had an adverse impact upon Dr. Lee but I

would please like to have you explain to me how it hurt the integrity of the investigation.

Mr. VROOMAN. Well, it limited the investigative tools available to

the FBI. For example, a wiretap is hardly useful if the subject of

the wiretap knows he is under investigation. A false flag operation

has the same problem. If the individual knows he is under investigation, he is not going to bite. And if there are other people or

one other person out there, they are certainly aware that there is

an investigation now.

So what it did is limit the availability of investigative tools to the

FBI.

Senator GRASSLEY. I would like to ask you, Mr. Vrooman, and

then Mr. Trulock if either of you could shed any light on which

agency and who in that agency was behind leaking Dr. Lee’s name

to the media.

Mr. VROOMAN. I do not have a clue, Senator Grassley.

Senator GRASSLEY. Do you, Mr. Trulock?

Mr. TRULOCK. I can only provide to you second-hand information

but my information indicates that Dr. Lee’s name came out of the

Office of the Secretary at the Department of Energy.

Senator GRASSLEY. Mr. Vrooman, you mentioned one way in

which Dr. Lee was treated unfairly, that his name was leaked to

the media. What are other ways that you would refer to that he

was treated unfairly?

Mr. VROOMAN. Well, the conditions of his confinement I thought

were excessive and that is basically it. This is just my personal

opinion. I thought we could have granted him bail, given the fact

that if he had not given away that information in 6 years, it was

highly unlikely he was going to do it at this time.

Senator GRASSLEY. Now Mr. Trulock, the documents that we reviewed as part of this investigation confirm what you say about the

FBI giving its blessing to the administrative inquiry, so I want to

state for the record that that is the case because the FBI has tried

to absolve itself of that concurrence.

Mr. TRULOCK. Thank you, Senator.

Senator GRASSLEY. Mr. Trulock, before the administrative inquiry began there was a panel of scientists convened to reach a

consensus as to whether the W–88 was compromised. Was there a

consensus and if so, what was it?

Mr. TRULOCK. Let me talk about the process and be careful about

the conclusions of the panel that was convened. They are still classified, to the best of my knowledge.

59

But in April 1995, two scientists from Los Alamos brought to me

their concerns that a modern nuclear warhead in our inventory had

been compromised. I considered the allegation to be sufficiently serious to bring in an individual that I considered to be the preeminent nuclear scientist in our laboratory complex, Dr. John Richter. Richter came back, joined us in May of 1995, brought forth yet

another paper indicating that it was their concern that, in fact, it

was the W–88 evidence that had been compromised.

At that point I considered the allegations sufficiently serious

enough to brief my superiors, Undersecretary Charles Curtis, Mr.

Baker, who I mentioned earlier. We also informed at that point

John Lewis, who was then the assistant director of the National

Security Division of the FBI.

It is customary within the laboratory complex to conduct a peer

review of such conclusions of such enormity. I asked Michael Henderson from Los Alamos National Laboratory to put together a peer

review group. He assembled a group, including Dr. Richter. The

group had decades of experience in the design, production, development and testing of nuclear weapons. Among them they had nearly

100 nuclear tests in Nevada to their credit. Dr. Richter alone had

40.

The group met over the summer 1995. Initially the debate was

contentious and there were conflicting views as to whether the Chinese had benefitted or the extent to which they had benefitted from

acquisition of the information.

At that point the CIA made available to us what has become

known as the walk-in document. Again the contents of the walkin document are classified but I will tell you that at that point it

is my recollection that the group coalesced and came to a set of

conclusions that were briefed to Undersecretary Curtis in September of 1995 and briefed again to Undersecretary Curtis in

March 1996.

It is alleged that there were minority views within that group.

During the presentations to Mr. Curtis, both in September and

March, I encouraged, as if I would need to, the laboratory scientists

to speak out. The presentations were made by the scientists themselves. I can recall no dissent being expressed during the meetings

with Mr. Curtis. I do know if Dr. Richter has a dissent from that.

That is my recollection and it was on the basis of that conclusion

and Mr. Curtis’s direction that we referred the case initially to the

FBI.

The FBI refused to take it, asserting that it was too old and the

trail was too cold. This would be in the fall of 1995.

Senator GRASSLEY. So it was your opinion then that there was

a sufficient basis upon the conclusion of the panel’s work to move

ahead with the investigation?

Mr. TRULOCK. It was the conclusion of the Department of Energy, as expressed by Mr. Curtis, the undersecretary, that indeed

there was sufficient basis to refer the case to the FBI.

Senator GRASSLEY. Dr. Richter, I saw you shaking your head.

You are in concurrence with everything that Dr. Trulock said, or

at least the conclusion?

Mr. RICHTER. I agree with the conclusion, yes, but there are

some details, but I do not think they are very important.

60

Senator GRASSLEY. My last question is to Dr. Younger. Quite

frankly, based upon just press reports that we have, but we were

told in these press reports that Dr. Lee was not even required to

lock this restricted data in his desk overnight. Is this true? And if

it is true, then doesn’t that say something about that either the restricted data is not as important as what people thought it was or

it was not properly handled by not having it locked up?

Mr. YOUNGER. The material was kept in a Q area—that is, a secret restricted area—which was behind a fence at the laboratory.

It was in a limited access area, a further level of protection. And

further, it was behind a locked door.

Senator GRASSLEY. So then the press reports are wrong.

Mr. YOUNGER. That is correct.

Senator GRASSLEY. Thank you, Mr. Chairman.

Senator SPECTER. Thank you very much, Senator Grassley.

Mr. Vrooman, the documents were provided to this subcommittee

just last night that I want to start with, which is a memorandum

from Craig Schmidt of the FBI Albuquerque office. ‘‘On August 25,

1995, Bob Vrooman, who oversees counterintelligence matters, advised the Los Alamos National Laboratory’s report regarding Kindred Spirits will be provided to Notra Trulock of DOE headquarters

in approximately two weeks. Further, a ‘smoking gun has been

found.’ Vrooman learned of the information from Diane Saran.’’ Do you recollect that, Mr. Vrooman?

Mr. VROOMAN. No, I do not. I did have a meeting with Diane

Saran, who unfortunately is deceased now, and this is puzzling to

me. I do not know what they are talking about.

Senator SPECTER. Reference to a smoking gun is a pretty dramatic statement to appear in an FBI memorandum attributed to

you. If there had been such a reference, do you think it is something you would recollect?

Mr. VROOMAN. Yes, if they can elaborate, but this is the first

time I have seen this, obviously.

Senator SPECTER. Well, we just saw it yesterday. We wanted to

make it available to you as soon as we could. But if there is some

reference to a smoking gun, we would like to pursue it.

Mr. VROOMAN. Yes, so would I.

Senator SPECTER. How do you suggest we pursue it?

Mr. VROOMAN. Ask the FBI for elaboration. What is that smoking gun? I do not know what it is.

Senator SPECTER. Well, they are referring to you as the source

of the information. I think if we ask them, they are going to refer

us to you.

Mr. VROOMAN. Well, they had to get this from Albuquerque.

When I get back home I will call the agent that was working the

case at that time and ask him what the smoking gun is, if you

would like me to do that.

Senator SPECTER. We will pursue that line, as well, and if you

would, as well, we would like to get to the bottom of that.

Mr. Trulock, there has been a fair amount of information on the

Department of Energy and Secretary Richardson responding in December when the Cox Committee was about to finish its investigation. And I refer first to an FBI document from Neil Gallagher,

which says, ‘‘William Richardson, Secretary, Department of Energy,

61

may call Director Freeh about this investigation on Monday, December 21, 1998. On December 17 and 18, 1998, DOE counterintelligence advised they wanted to try and neutralize their employees’

access to classified information prior to the conclusion of the Cox

Committee hearing this month.’’ And that is rubbed out and written in, ‘‘prior to issuance of a final report by the Cox Committee.’’

Then there is a deposition of Craig Schmidt, FBI agent, which

was taken in July of 1999, which reads, in part, as follows from

page 91. ‘‘The Department of Energy was becoming more and more

concerned about how they would appear and how they were appearing during the committee meetings and it was becoming very

urgent for them to look like they were doing something. Ergo, they

decided on their own, we have to interrogate and interview Lee

Wen Ho—that is their articulation—and we have to jerk his clearance or his access and we expect the FBI—we’re begging the FBI,

please resolve this investigation in the next 30 days or 60 days so

we can fire the guy.’’

On the next page, 92, ‘‘There was a new secretary of energy there

who all of a sudden had a big need to show that they were correcting all the problems and if that meant immediately firing Lee

Wen Ho, regardless of whatever it was the FBI was doing, they

were going to do it as soon as possible, so they were taking their

own action on this.’’

The third document, excerpts from a DOE report of inquiry, July

27, 1999, ‘‘Mr. Schiffer informed the Office of Inspector General

that he first heard Mr. Lee’s name on December 21.’’ And then

skipping down, ‘‘The secretary wanted Mr. Lee to be fired.’’

What knowledge do you have of action taken by Secretary Richardson, if any, concerning firing Dr. Lee or taking some action as

a result of the release of the Cox Committee report, which was imminent at about that time?

Mr. TRULOCK. Senator Specter, let me make two points. First of

all, by this time I had been removed from my position as director

of intelligence at the Department of Energy and was replaced by

Mr. Larry Sanchez, a CIA employee who Secretary Richardson

brought with him into the department.

Secondly, I was no longer the director of counterintelligence. I

had been replaced by Mr. Edward

Curran, an FBI agent who had come over to the department in

1998.

I had no direct or even indirect participation in the discussions

that went on on the seventh floor in Secretary Richardson’s office

on this aspect. What I will tell you is that after our initial appearance and particularly our second appearance before the Cox Committee in December 1998, there was a high level of agitation within

the Office of Counterintelligence on the part of Mr. Sanchez and

within the political appointees at the department.

Senator SPECTER. Well, there have been denials at our hearing

that the Department of Energy acted to remove Dr. Lee, fire him

or take his clearance away, and that it went right to the secretary.

Do you have any knowledge of that?

Mr. TRULOCK. I know that Mr. Sanchez, who was the director of

intelligence at the time, and Mr. Curran, the director of counterVerDate 11-MAY-2000 13:22 Nov 01, 2001 Jkt 074193 PO 00000 Frm 00067 Fmt 6601 Sfmt 6602 E:\HR\OC\A193.XXX pfrm04 PsN: A193
62

intelligence, have direct knowledge of that episode. They were involved in it and they were providing advice to him.

Personally, I will offer my opinion. It certainly is not a coincidence that after the FBI provided information to the Cox Committee on Dr. Lee and other espionage cases within the Department of Energy that for the first time in almost two years, DOE

management became energized about addressing the advice we had

received from Director Freeh in August 1997.

Senator SPECTER. Well, it is a fact, isn’t it, that FBI Director

Freeh told Acting Secretary Moler that Dr. Lee could be removed

from his clearance in August 1997, just after the Department of

Justice rejected the request for a FISA warrant?

Mr. TRULOCK. I was present at that conversation and my recollection is that he said that it looks like we will not be able to get

a FISA; my recommendation to you is take this case off the table.

Do what you need to do to protect your sensitive nuclear weapons

computer codes.

Senator SPECTER. And why didn’t the Department of Energy take

action to remove the clearance or to protect itself instead of leaving

Dr. Lee there until early 1999?

Mr. TRULOCK. I have no idea. I repeatedly asked Deputy Secretary Moler about actions that she should be taking in this but

they simply were never followed through with.

Senator SPECTER. And isn’t it a fact that on October 15, 1997 Director Freeh repeated the same to Energy Secretary Pena about

taking action to remove Dr. Lee’s access to classified information?

Mr. TRULOCK. Again I was present at that meeting. There is a

copy of Director Freeh’s talking points in the files in the Office of

Intelligence of the Department of Energy and he did make that

point. Secretary Pena did not respond.

Senator SPECTER. We only have a few minutes left because unfortunately, the rule has been invoked which requires our terminating at 11:30. It is a very awkward matter.

Dr. Richter testified about the danger of leaks and we have had

the question about the leaking of Dr. Lee’s name. Mr. Trulock, you

have testified that the leaking of Dr. Lee’s name goes right to the

Office of the Secretary of Energy. What basis do you have for that

statement?

Mr. TRULOCK. I have—hold on a second. I need to consult my

lawyer on this.

[Witness consults with counsel.]

Mr. TRULOCK. One of the reporters involved in the publication of

the stories in question told me directly that Secretary Richardson

had provided to him the name of Wen Ho Lee.

Senator SPECTER. He said Secretary Richardson leaked the name

of Dr. Lee?

Mr. TRULOCK. That is correct.

Senator SPECTER. And the name of that reporter?

[Witness consults with counsel.]

Mr. TRULOCK. James Risen, New York Times.

Senator SPECTER. Well, we are going to pursue that. Respecting

confidentiality of source, that is something which is of the utmost

importance.

63

Mr. Vrooman, Mr. Trulock has been very emphatic, as you heard

him, at two points in his statement. ‘‘Let me state clearly at no

point in 1996, 1997 or 1998 did Robert Vrooman or Charles Washington express any concern, disagreement, dissent or protest on the

conduct of the administrative inquiry or the content of the inquiry’s

report,’’ and this goes to the issue of being directed at ethnic Chinese.

Do you have a reply to that?

Mr. VROOMAN. Yes, sir. When we received the report, which I

agree was in May 1996, I called Mr. Trulock’s office; he was not

in. I asked to have him call me and I was going to raise these

issues. And I must admit I was a bit angry. So he did not return

my call. My staff called me down.

My supervisor, who was the lab’s director, told me he wanted me

to improve my relationship with Mr. Trulock and what I was about

to say would not have done that.

So we decided, as a matter of course, to let the FBI have this

case. We had worked with them for years. They have always protected people’s civil rights and did the case well and we thought

they would quickly come to the same conclusions that we had.

Senator SPECTER. OK; and on the next page Mr. Trulock says, ‘‘At no time during that or any other meeting did Vrooman protest

or express any dissent or concern to the FBI or DOE participants

about the investigation of Dr. Lee.’’ Is that accurate?

Mr. VROOMAN. Well, I met with FBI agents weekly on this case

and yes, we always discussed reservations about this case. They

came to a head in roughly December 1998 and we were basically

thinking that Lee was not the right man.

Senator SPECTER. We are going to enter into the record your declaration concerning your statement about Agent Messemer, ‘‘I believe that he regularly distorts information’’ and your statement

that ‘‘Agent Messemer deliberately mischaracterized the nature of

my comments to him regarding the concerns about Dr. Lee’s travel

to the PRC.’’

And the whole issue of racial profiling is one which the subcommittee is going to look at in great detail. We cannot at this moment.

Judge Parker had documents produced to him which were due to

be produced actually on September 15, which were not because of

the plea bargain. And it may be that that was one of the motivating factors for the plea bargain, so the government would not

have to produce those. We are going to take a look at that.

Mr. Wilkins, we have had you sitting around all morning and before we adjourn I think it appropriate to ask you the couple of

questions which we could not get at our last hearing from DOE officials who were present, and that is why wasn’t the downloading

which Dr. Lee undertook in 1993 and 1994 flagged and reported to

the FBI?

STATEMENT OF RON WILKINS, COMPUTER NETWORK

SPECIALIST, LOS ALAMOS LABORATORY

Mr. WILKINS. That downloading was detected by monitoring tools

at Los Alamos. There were a lot of similar activities at the time

64

that were investigated and there were reasonable explanations for

them.

I can go into details on how that worked in a closed session.

Senator SPECTER. Well, it is true, is it not, that the downloading

by Dr. Lee of a lot of material was noted by the Department of Energy?

Mr. WILKINS. It was noted by our monitoring tools.

Senator SPECTER. And it is also true that that was not transmitted to the FBI, correct?

Mr. WILKINS. That is correct.

Senator SPECTER. Well, in a context where an investigation had

been started on Dr. Lee in 1982 and there were investigations

going on in 1995 and we are now faced with a situation where

there is a major alleged catastrophe—maybe it is not alleged; it

really is—about his downloading, why wasn’t that information conveyed by DOE to the FBI?

Mr. WILKINS. The fact that Dr. Lee was of interest was not information that was available to the computer monitoring intrusion detection operations.

Senator SPECTER. Well, were there so many people downloading

so much information that the fact itself of the downloading would

not warrant alerting the FBI to the possible importance of that

conduct?

Mr. WILKINS. During that time frame it was common for unclassified computing to take place in the classified environment and

then results to be downloaded. So indeed there was a lot of activity,

some greater than Dr. Lee’s, that was investigated and dismissed

because it was found to be innocuous.

So yes, there was a—— Senator SPECTER. We are going to have to go into that at a later

time. We have come to the bewitching hour, regrettably. It is kind

of hard to understand how we can have a rule that interrupts a

hearing of this sort, which is calculated to deal with the way the

Senate is run on collateral issues, but that is the rule we live

under.

So thank you all very much for coming and for the moment, that

concludes this facet of our inquiry. Thank you.

[Whereupon, at 11:35 a.m., the subcommittee was adjourned.]

[Submissions for the Record follow:]

[Additional material is being retained in the Committee files.]

SUBMISSIONS FOR THE RECORD

DEPARTMENT OF ENERGY CHRONOLOGY—MAY 6, 1999

1995 SPRING–SUMMER

Reporting indicates that PRC probably had access to sensitive nuclear information.

Under Secretary Curtis briefed; directs that DOE/CI, FBI, CIA and Los Alamos

National Laboratory Director be informed.

Initial meetings with DOE/CI personnel begin to discuss possible compromise, and

review DOE CI program.

DOE forms a Review group to conduct technical review of relevant intelligence.

65

FBI National Security Division and CIA elements briefed.

LANL Director Sig Hecker briefed.

DOE Secretary O’Leary, Under Secretary Curtis, NN Director briefed.

Secretary briefs OVP staff.

Under Secretary Curtis discusses with DCI Deutch.

FBI updated.

First meeting of Review Group.

Second meeting of Review Group.

Sep.—Final meeting of Review Group.

Oct.—FBI briefed on Review.

Nov.—DOE Assistant Secretary for Defense Programs, and Director of Nonproliferation briefed on Review conclusions. DOE Dep Sec Curtis briefed on Review

conclusions.

Nov.—DOE begins Administrative Inquiry into potential loss of sensitive nuclear

information. FBI assists.

Nov 20.—Director of Central Intelligence Deutch briefed by DOE Deputy Secretary Curtis.

Dec.—CIA element briefed.

Dec 1995.—DOE begins to enhance CI program. Dep Sec Curtis briefed on state

of CI within national lab complex, request for enhancements. Curtis approves increase in funding of $6 million for CI program.

Jan–Feb 1996.—Briefings for CIA elements as preparation for briefing DCI.

Mar.—DCI Deutch briefed.

Mar.—Curtis initiates study of foreign visits and assignments to labs. Study led

by Dep Director of DOE Office of Intelligence.

April 11.—DOE Office of Intelligence begins second Administrative Inquiry.

April 13.—Deputy National Security Adviser Berger first briefed on potential compromise.

April.—Office of the Vice President (Fuerth) briefed.

May.—DOE brings a CIA counterintelligence expert to staff of DOE’s office of

counterintelligence.

May.—FBI opens full field investigation.

June.—First DOE Administrative Inquiry completed. Bell/NSC and DOD Undersecretary Kaminski briefed.

July 11.—SSCI (Senate Intelligence Oversight Committee) staff briefed by FBI

and DOE.

July 7.—Second DOE Administrative Inquiry completed.

July.—DOE Office of Nonproliferation briefed on Second Inquiry.

August 1.—HPSCI (House Intelligence Oversight Committee) staff briefed jointly

by FBI/DOE.

Oct.—DOE office of CI reorganized, CIA CI expert designated to run office.

Oct 23.—Commander in Chief of Strategic Command (Gen. Habiger) briefed.

Nov 21, 1996.—DOE Dep Sec Curtis meets with Lab Directors and heads of DOE

Field Offices to review foreign visitors and CI programs. DOE HQ, Field Offices and

Labs directed to begin implementing new measures to strengthen foreign visits and

CI program, undertake further assessments.

March 12, 1997.—Federico Pen ̃ a confirmed as Secretary of Energy.

Apr 4.—FBI completes SSCI-mandated assessment of DOE CI program and

makes recommendations.

Apr 7.—Secretary Pen ̃ a meets with FBI Director Freeh. Freeh indicates that FBI

review of DOE counterintelligence program has been completed.

Apr 28.—First meeting of CI Senior Advisory Group formed at DOE to review

China CI issues. Members included Dick Kerr, Adm Shapiro, Jack Downing, Jim

Williams, Rich Haver, Ken O’Malley.

June 11.—NSC/Gary Samore briefed by DOE Notra Trulock.

June 16.—DOE Dep Sec Moler sworn in.

June 16–17.—DOE CI Advisory Group (Kerr, Shapiro et al) meets at Sandia to

receive briefings on FBI investigation.

June 24.—Second and final meeting at DOE’s CI Advisory Group. Senior lab

weapon scientists attend.

July 3.—NSC/Rand Beers briefed by DOE Trulock on CI issues concerning PRC.

July 7.—Initial briefing to DOE Deputy Secretary Moler by Notra Trulock.

July 11.—Second briefing to Dep Sec Moler by Notra Trulock.

July 14.—Initial briefing to Secretary Pen ̃ a.

66

July 29.—Assistant to the President for National Security Affairs Berger briefed

by DOE/Trulock on CI issues concerning PRC.

Aug 7.—Secretary of Defense Cohen briefed by Dep Sec Moler and Notra Trulock.

Aug 12.—FBI Director Freeh briefed by Dep Sec Moler and Notra Trulock.

Aug.—Attorney General briefed.

Aug.—NSC requests CIA assessment of DOE China briefing.

Aug 26.—Second briefing to NSC/Samore by DOE/Trulock.

Aug.—National Counterintelligence Policy Board tasks interagency working group

to study DOE counterintelligence program.

Sept 1997.—Interagency working group completes DOE counterintelligence review, proposes Presidential Directive for addressing DOE counterintelligence improvements.

Sept 5.—NSC-directed CIA assessment of DOE China briefing delivered.

Oct 15, 1997.—Secretary Pen ̃ a, Dep Sec Moler meet with FBI Director Freeh, DCI

Tenet, and staffs meet at DOE to discuss actions to be taken to improve DOE counterintelligence. Freeh outlines recommendations. All agree to develop action plan

which will serve as basis for PDD. DOE/NSC staff to collaborate on drafting.

Oct. 17, 1997.—Secretary Pen ̃ a, Dep Sec Moler, Director Freeh, Defense Secretary

Cohen, DCI Tenet, Attorney General Reno meet at DOD to discuss development of

PDD.

Feb. 11, 1998.—PDD–61 issued.

Feb 19.—HPSCI and SSCI briefed on PDD–61 by DOE (Gottemoeller, Trulock and

Curran).

Feb-March.—Office of counterintelligence staff develops budget request, submits

supplemental appropriations request to Congress.

March 3.—DOE Dep Sec Moler convenes meeting with staff to discuss PDD implementation.

March 16.—Moler and Curran (newly designated CI director) meet.

March 17, 1998.—Pen ̃ a, Moler and Curran meet with DOE Weapons Lab Directors to discuss PDD implementation.

March 30.—Freeh, Tenet, DOE Dep Sec Moler, Trulock and Curran meet with

Lab Directors at FBI to discuss importance of complying with PDD requirements.

April 1, 1998.—FBI CI Expert Curran formally instated as head of DOE CI Office.

April 6-May 15.—DOE CI Office begins 90-day Study with team visits to eight

DOE Operations Offices and nine National Laboratories.

June 30.—Pen ̃ a resigns, Moler Acting.

July 1, 1998.—90-Day Study completed and delivered to Secretary of Energy.

July-August.—DOE Dep Sec Moler leads review of 90-Day Study recommendations and develops plan to implement. Key participants include relevant HQ offices

and DOE labs. Numerous meetings occur. Detailed Secretarial Action Plan drafted.

Aug 18.—Secretary Richardson sworn in.

Sep 10.—Sec. Richardson and Dep Sec Moler meet with staff to discuss Counterintelligence.

Sep 18.—DOE Sec. Richardson meeting with FBI Robt Bryant and DCI Tenet re

DOE Counterintelligence Action Plan.

Oct 1.—Secretary Richardson meeting with Dep Sec Moler on intelligence.

Oct 6.—Secretary Richardson and Director Freeh meet.

Oct 6.—Sec Richardson briefed by Dep Sec Moler, Notra Trulock and staff. DOE

CI Action Plan discussed.

Oct 6.—House Committee on National Security (Subcommittee on Military Procurement) hearing on the Department of Energy’s Foreign Visitor Program.

—Open session on foreign visitors with Lab Directors and GAO;

—Closed session with Dep Sec Moler, DOE Office of Intelligence Acting Director Trulock, and DOE Director of Counterintelligence Curran.

Oct 19.—DOE Dep Sec Moler resigns.

Nov 2.—Sec Energy appoints advisor for Counterintelligence.

Nov 12.—DOE gives full brief to Cox Committee.

Nov 13, 1998.—Sec Energy Richardson submits Counterintelligence Action Plan

to the NSC, National Security Advisor.

Nov 27.—National Counterintelligence Center Threat Assessment for DOE Labs

Published.

Dec-Jan.—Counterintelligence Implementation Plan drafted with input from relevant HQ offices, laboratories and field elements.

Dec 7.—DOE briefs Cox Committee Members.

Dec 9.—Secretary Richardson meets with laboratory CI Directors, and Directors

of Intelligence and Counterintelligence Offices re implementation of Counterintelligence Plan.

67

Dec 15.—Secretary Richardson, Under Secretary Moniz meet with five weapons

Lab Directors and Directors of the Offices of Intelligence and Counterintelligence to

discuss importance of CI initiatives.

Dec 16.—DOE Curran, Sanchez and Trulock testify before Cox Committee.

Dec 21.—Sec Energy meeting on counterintelligence with staff. Richardson phone

call to Director Freeh.

Dec 29.—DOE Counterintelligence Director Curran meets with NSC staff regarding Cox Report.

Jan 4, 1999.—Cox Committee Releases Report.

Jan 22.—FY 2000 Counterintelligence budget request submitted—doubles budget

over FY 99 levels.

Feb 3.—Counterintelligence Implementation Plan completed and delivered to Secretary of Energy Richardson.

Feb 10.—Secretary Richardson briefs House Armed Services Committee.

68

69

70

71

72

73

74

MEMORANDUM

To: Senator Specter

From: Carlton Hoskins

Date: September 26, 2000

Re: Summary and Chronology of the conditions of WHL’s confinement —Shackles were used because he was a segregated inmate. —On December 10th, the jail’s warden issued a memorandum outlining the procedures for the confinement of Wen Ho Lee as a segregated prisoner. (Tab #1) —The jail’s operator Cornell Corrections, Inc. wrote the US Marshal on January

4th, outlining their policy for segregated inmates. (Tab #2) —The US Marshal on January 6, 2000, wrote back stating the Marshal’s agree

with this treatment and that ‘‘with some additional restrictions, the standard segregation policy currently in place at your facility would adequately confine Mr. Wen

Ho Lee.’’ (Tab #3) —The additional restrictions all dealt with his ability to communicate. These additional terms evolved into DOJ’s Special Administrative Measures (SAM) for Lee’s confinement. The SAM (Tab #4) signed by AG Reno required: (1) use of English or

interpreters must be present; (2) no attorney use of interpreters unless necessity

shown and attorney is present; (3) phone calls limited to attorneys and any potential

defense communication; (4) attorneys may provide docs to inmate; (5) family may

call/be called, calls must be in English; (6) no phone calls overheard by third party;

(7) family calls monitored and recorded by FBI; (8) visitors limited to immediate

family; (9) all legal mail must be marked to/from attorney and marked privileged,

all non-legal mail must be copied and forwarded to the FBI; (10) all mail is

prescreened and analyzed before forwarding/dispersal; (11) if mail is determined to

contain overt or covert discussion, it is to be seized. (Tab #4) —Restraint policy discussed (Tab #5)

CHRONOLOGY

December 10 and 14, 1999, Senior Warden Barreras of the Santa Fe County Correctional Facility issues memorandums outlining the procedures for the supervision

of Wen Ho Lee.

December 21 Holscher writes USA Kelly questioning limited visits, English only,

and limited attorney calls.

Dec 27, 1999 Sec. Richardson writes certifying to the AG that Special Administrative Measures (SAM) on Wen Ho Lee’s confinement are necessary to protect national

security.

Dec 30, 1999 Judge Parker issues his Memorandum Opinion and Order denying

Lee’s pretrial release.

Jan 4, 2000 Cornell Corrections, Inc. sends memo that outlines policy for segregated inmates.

Jan 5, USA Gorence writes memo to AG requesting she issue the SAM.

Jan 6. 2000 US Marshal Sanchez writes Warden Barreras asking the jail to especially adapt its inmate segregation policy for WHL to include that Lee can only be

transported by US Marshals.

Jan 6, 2000 Cline writes Gorence for additional time outside the cell, daily showers, a TV and a radio.

Jan 13, 2000 DOJ review of the SAM request is sent to the Deputy Attorney General.

Jan 13, 2000 AG issues memo to Director, US Marshal Service (USMS) directing

the SAM be implemented. The SAM must be certified every six months.

Jan 14, 2000 USMS sends Gorence the Jail’s response to Cline’s requests of Jan.

6th.

Jan 18, 2000 Gorence forwards jail’s memo to Cline.

Apr 21, 2000 Gorence writes USMS requesting Saturday family visits for WHL.

May 2, 2000 SAC Kitchen writes Bay about national security concerns of relaxing

the SAM.

May 4, 2000 Sec. Richardson recertifies request for SAM.

May 12, 2000 AG memo to USMS extends SAM.

Jul 17, 2000 Bay to Warden Barreras making 3 modifications to conditions of

Lee’s confinement: no restraints while exercising; exercise daily; and extra fruit.

Jul 18, 2000 Barreras memo to Stamboulidis confirming he will comply with 2 of

3 requests.

Jul 26, 2000 Cline to Stamboulidis confinement modifications requested not yet

made.

Jul 30, 2000 Bay forwards to Barreras that confinement modifications not yet

made, asks about conditions.

75

Aug. 1, 2000 Barreras to Stamboulidis stating Lee was out of restraints during

exercise on Jul 18 and on Aug 5 Lee will get exercise time on weekends.

Sept 7, 2000 Bay to AG requests SAM be extended again.

DEPARTMENT OF JUSTICE,

OFFICE OF LEGISLATIVE AFFAIRS,

Washington, DC, June 22, 2001.

Hon. PATRICK J. LEAHY,

Chaiman, Committee on the Judiciary, U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: This responds to recent correspondence from you and Senator Arlen Specter requesting a written chronology of the Department of Justice’s

actions with respect to Wen Ho Lee investigation during the period between his termination from employment at Los Alamos National Laboratory, on March 8, 1999,

and the return of the indictment against him on December 10, 1999. Senator Specter also requested a copy of the report on the case by the Attorney General’s Review

Team (the Bellows Report), and you have requested the status of the declassification

of that Report.

The requested chronology is attached. As for the Bellows Report, the Central Intelligence Agency is currently reviewing a redacted version for any remaining classification issues. The Agency has advised that their review will be complete by June

29, 2001, after which we will be able to provide you with a copy of an unclassified

version of the report.

Sincerely,

DANIEL J. BRYANT,

Assistant Attorney General.

WEN HO LEE CHRONOLOGY

March 8, 1999.—Wen Ho Lee terminated by Los Alamos National Laboratory

(LANL)

March 9, 1999.—Meeting between FBI–Albuquerque Division (AQ) and U.S. Attorney (USA) John J. Kelly, District of New Mexico.

March 10, 1999.—Letter from Mark Holscher, counsel for Wen Ho and Sylvia Lee,

to First Assistant U.S. Attorney (FAUSA) Robert J. Gorence, D.N.M., and FBI–AQ

Special Agent John Hudenko, offering to surrender Lee’s passport and asking

whether Lee is target or subject of investigation.

March 12, 1999.—Letter from USA Kelly to Holscher confirming Holscher’s offer

to advise government of travel by Lees and Holscher’s representation that Lees will

not leave the country during the investigation.

March 15, 1999.—Telephone conversation between USA Kelly and Holscher.

March 19, 1999.—Letter from Holscher to USA Kelly asking that investigation of

Lee end, asking for security clearances in order to counsel Lee, and requesting a

meeting.

March 23, 1999.—LANL scientist assisting FBI–AQ in conducting consensual

search of Lee’s former X–Division LANL office, advises FBI–AQ of discovery in office

of printout of computer directory ‘‘kfl.’’ Based on names of files in directory kfl, it

appears that files are classified. Also believed by LANL scientist that directory kfl

was maintained on open, unsecured part of LANL computer know as Common File

System (CFS).

March 25, 1999.—Telephone conversation between FAUSA Gorence and Holscher.

March 26, 1999.—LANL scientist advises FBI–AQ that Lee had typed up and

stored in a CFS directory, letters seeking employment overseas. LANL scientist advises FBI–AQ that Lee had created ‘‘kfl’’ directory on open part of CFS, that file

names on directory suggest files contained classified information, and that ‘‘kfl’’ files

had been deleted from CFS on February 11, 1999 by individual using Lee’s computer access number.

March 29, 1999.—Letter from Holscher to FAUSA Gorence confirming government’s representation that Lee was a subject, not a target, of the investigation

March 30, 1999.—Draft rule 41 search warrant affidavit re Lee’s White Rock,

N.M. residence presented by FBI to U.S. Attorney’s Office, D.N.M.

April 1–8, 1999.—FBI agents, and attorneys from the Criminal division and the

USAO work on affidavit in support of application for rule 41 warrant to search Lee’s

residence in White Rock, N.M.

April 5, 1999.—LANL scientist advises FBI–AQ that Lee had transferred classified Department of Energy information from the closed CFS to the open CFS.

April 7, 1999.—Meeting between FBI and Office of Intelligence Policy and Review.

76

April 9, 1999.—As required by statute, Attorney General Janet Reno approves use

of information derived from the Foreign Intelligence Surveillance Act of 1978 in rule

41 search warrant application. Later same day, FBI–AQ special agent, accompanied

by FAUSA Gorence, applies for and obtains warrant from Magistrate Judge William

W. Deaton, D.N.M., to search Lee’s White Rock residence.

April 10, 1999.—Search warrant executed by FBI–AQ. Lee provides written consent to search motor vehicle.

April 16, 1999.—Letter from FAUSA Gorence to Holscher providing inventory of

items seized during search and requesting meeting to discuss Lee’s 1986 and 1988

travel to the People’s Republic of China.

April 18, 1999.—LANL provides two reports of LANL computer officials. One concerns the deletion of files, during January and February 1999, from directories

maintained by Lee on open CFS. The other concerns the earlier transfer of eleven

of these files from closed to open CFS.

April 23, 1999.—Conversation between Holscher and FAUSA Gorence.

April 28, 1999.—The New York Times reports that Lee transferred classified nuclear weapons files onto a non-secure computer while at LANL.

May 5, 1999.—LANL scientist advises FBI–AQ that notebook recovered during

search of Lee’s residence contains handwritten instructions on how to transfer classified files from computer at LANL to a Sun Sparc computer workstation and from

there onto portable DC6150 computer tape cartridges.

May 9, 1999.—LANL computer official provides report to FBI–AQ describing how

Lee moved files from closed to open CFS.

May 11, 1999.—Letterhead Memorandum on Lee case prepared by FBI–AQ.

May 13, 1999.—Letter from Holscher to FAUSA Gorence asserting that search of

Lee’s residence was illegal and offering to continue to cooperate.

May 16, 1999.—Written status report on Lee case from USA Kelly to Deputy Attorney General Eric H. Holder and AG Reno.

May 17, 1999.—LANL computer official provides FBI–AQ with report on potential

movement of files on Lee’s CFS directories from LANL computers to outside computers.

May 27, 1999.—Meeting in Washington, D.C. among FBI, Criminal Division, and

USAO.

May 29, 1999.—FBI–AQ presents written prosecutive report to USAO.

June 9, 1999.—Letter from Holscher to USA Kelly and FAUSA Gorence complaining that government has not advised him what it wants to discuss with Lee

and has not sought to schedule a meeting.

June 15, 1999.—Letter from USA Kelly to Holscher stating that government is

considering serious charges, but not espionage under 18 U.S.C. § 794, and suggests

meeting on June 21 at USAO in Albuquerque.

June 21, 1999.—Meeting in Albuquerque among USAO, FBI, Criminal Division,

counsel for Lee, and Lee. During meeting counsel for Lee assert that he only

downloaded unclassified data onto an unsecure computer and then onto tapes. Subsequently, counsel advised that if Lee had done so with respect to classified data,

any such tapes had been destroyed.

June 22, 1999.—Written status report on Lee case from USA Kelly to DAG Holder

and AG Reno.

July 1–2, 1999.—Written presentation by counsel for Lee provided to USAO on

July 1, 1999; faxed to Criminal Division by USAO on July 2, 1999.

July 6, 1999.—Written supplement to above presentation provided by counsel for

Lee to USAO. Letter from Holscher to USA Kelly and FAUSA Gorence.

July 15, 1999.—LANL scientist provides report on Lee’s creation of ‘‘Tape N,’’ in

1997.

July 1999.—LANL advises that one of six DC6150 tapes recovered from Lee’s TDivision LANL office contains a classified file, and that two others did at one time,

but that those files have been deleted. LANL further advises that one tape was

cleansed of classified data in February 1999, on the unsecured computer

workstation belonging to a T-Division colleague of Lee.

July 23, 1999.—Meeting in Washington, D.C. between USAO and Criminal Division.

July 26, 1999.—Holscher letter to USA Kelly and FAUSA Gorence arguing that

Lee has not violated the Atomic Energy Act of 1954.

July 27, 1999.—Meeting in Washington, D.C. between counsel for Lee and Criminal Division.

July 28, 1999.—LANL computer official provides report describing the creation of

classified ‘‘tar’’ (tape archive) files by Lee.

August 2, 1999.—Letter from Holscher to USA Kelly and FAUSA Gorence offering

to make additional factual submission.

77

August 4, 1999.—Letter from USA Kelly to Holscher saying government will review anything Holscher submits, but wants a complete explanation from Lee himself. Letter from USA Kelly to Eugene Habiger, Director, Office of Security and

Emergency Operations, Department of Energy, seeking to include in a proposed indictment of Lee information about Lee’s downloading activity.

August 9, 1999.—Telephone conversation between Daniel H. Bookin, counsel for

Lee, and Richard A. Rossman, Chief of Staff, Criminal Division.

August 10, 1999.—Letter from Holscher to USA Kelly stating that Lee will not

submit to additional interview, and offering further arguments as to why Lee has

not violated 18 U.S.C. § 793.

August 16, 1999.—Letter from Rossman to Bookin advising that government has

not made decision whether to charge Lee, and asking for additional information,

which was discussed during meeting in July, no later than August 30, 1999.

August 30, 1999.—Additional supplemental written presentation provided by

counsel for Lee to USAO.

September 3, 1999.—Letter to Holscher from USA Kelly asking for information

about location and custody of tapes from time of their creation until the present.

September 8, 1999.—Meeting in Washington, D.C., among Criminal Division,

USAO, LANL, and Department of Energy (DOE) to discuss handling of classified

information in prosecution of Lee. All DOE and LANL representatives concur as to

significance of data at issue.

September 13, 1999.—Letter from Holscher to USA Kelly and FAUSA Gorence

stating that Lee had work-related reason to make tapes.

October 4, 1999.—DOE prepares draft classification guide governing issues relating to Lee’s illicit computer activity and the classified files involved.

October 27, 1999.—Memo from Assistant Attorney General James K. Robinson,

Criminal Division, and USA Kelly recommending Lee be prosecuted under Atomic

Energy Act of 1954.

November 8, 1999.—Draft agenda of upcoming National Security Council meeting

on case distributed.

November 11, 1999.—Case discussed at NSC meeting in Washington, D.C.; DOJ,

DOE and LANL represented at meeting.

November 14–15, 1999.—On November 14, 1999, LANL scientist writes ‘‘Draft of

Input to Damage Assessment’’ re Lee compromises; faxed to USA Kelly on November 15, 1999.

November 24, 1999.—At request of NSC, Central Intelligence Agency prepares

damage assessment regarding data on missing tapes created by Lee.

December 4, 1999.—Briefing of case at White House.

December 8, 1999.—Telephone conversation between USA Kelly and Holscher.

Kelly advises Holscher that indictment is imminent, and seeks from Holscher information about whereabouts of missing tapes. As required by statute, AG Reno sends

letters to Secretary of Energy Bill Richardson and USA Kelly approving charges

against Lee under the Atomic Energy Act of 1954.

Late 1999, before December 10.—USA Kelly advises Holscher in telephone conversation that case might be resolved without indictment; advises Holscher to look

at latter sections of 18 U.S.C. § 793.

December 10, 1999.—Letter faxed at 8:24 a.m. PT from Holscher to USA Kelly

and FAUSA Gorence offering to make Lee available for a polygraph by a mutually

agreeable polygrapher to verify that Lee did not mishandle the tapes or provide

them to a third party. Lee later indicted in Albuquerque and arrested in White Rock

by FBI–AQ.

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DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF INVESTIGATION,

Washington, DC, December 10, 1999.

Hon. ARLEN SPECTER,

Chairman, Subcommittee on Administrative Oversight and the Courts, Committee on

the Judiciary, U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: I am in receipt of your December 7, 1999 letter regarding

scheduling closed hearings next week on the FBI’s Wen Ho Lee investigation. Your

letter requests the testimony of nine (9) FBI witnesses, including two of the case

Agents, my General Counsel, and case supervisors and managers, including the Special Agent in Charge in Albuquerque and the Assistant Director in Charge of our

National Security Division. For the reasons set forth below, I respectfully request

that you delay hearings on any aspect of this investigation until the conclusion of

the current criminal proceedings resulting from the indictment handed down today.

As you know, in an effort to assist your Subcommittee the FBI has made available

to you or your staff raw investigative files concerning the Wen Ho Lee investigation,

and made available for interview a substantial number of employees. Today, however, Wen Ho Lee was indicted in the District of New Mexico, an indictment that

alleges the massive misappropriation of the most sensitive nuclear weapons information possessed by the U.S. Government. Some of the violations carry potential

life sentences.

In my view, the potential that your hearings could inadvertently interfere with

the prosecution is substantial. Subcommittee hearings at this time risk impacting

upon the Government’s ability to successfully prosecute Mr. Lee by creating issues

that may not presently exist. Moreover, it is critical for our national security that

we have every opportunity to learn as much as we can from Wen Ho Lee in a carefully controllable setting. Given the gravity of the allegations and charges, and the

potential opportunities that could be lost by hearings, I respectfully ask that you

not go forward at this time. I hope you will agree that to do otherwise poses a substantial risk not only to prosecution but to the Government’s ultimate ability to discover the full extent of the damage done.

Further, I do not believe any aspect of this case can be isolated for hearing purposes. Many of the same witnesses and documents could at any point become relevant to issues raised by defense counsel, and your discussions with Mr. Lee’s attorney may inadvertently create opportunities for the defense that otherwise might not

occur. Please do not interpret this request as concern about having hearings. My concern

is only about timing and the potential for increased risks to prosecution. We intend

to continue fully cooperating with the Subcommittee and look forward, once the

criminal proceedings have concluded to describing for the American people how the

FBI was able to achieve this result.

Sincerely yours,

LOUIS J. FREEH,

Director.

DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF INVESTIGATION,

Washington, DC, December 10, 1999.

Today, Wen Ho Lee, a nuclear weapons engineer, was indicted in a 59 count indictment alleging that he downloaded and removed from the Los Alamos National

Laboratory the following classified nuclear weapons design and testing files. These

extensive files relate specifically to the design, construction and testing of nuclear

weapons.

Data files that contain information relating to the physical and radioactive

properties of materials used to construct nuclear weapons;

Input deck/input file information that includes descriptions of the exact dimensions and geometry of nuclear weapons that are used in connection with the

design and simulated testing of nuclear weapons, and the computer instructions

to set up a simulated nuclear weapons detonation;

Source codes used for determining by simulation the validity of nuclear weapons designs and for comparing bomb test results with predicted results;

Nuclear bomb testing protocol libraries reflecting the data collected from actual tests of nuclear weapons;

Data concerning nuclear bomb test problems, yield calculations, and other nuclear weapons design and detonation information; and

Computer programs necessary to run the design and testing files.

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The charges alleged in the indictment include violations of the Atomic Energy Act

that carry a maximum penalty of life imprisonment and federal espionage statutes.

Over 60 FBI Agents and dozens of computer specialists and other specialists such

as scientists, engineers, and technicians, both from the FBI and the DOE, have been

dedicated to this investigation.

Investigation leading to this indictment has been extensive. The FBI, with the assistance of the Department of Energy and Los Alamos National Laboratory, has conducted over 1,000 interviews and searched over one million computer files. Comprehensive analysis by the FBI’s Computer Analysis Response Team and DOE was

critical to uncovering many of the facts that lead to this indictment. Over four trillion bits of data were examined. Several searches also have been conducted.

The Department of Energy and Los Alamos National Laboratory deserve great

credit for their superb assistance and extraordinary expertise.

A copy of the press release by the United States Attorney and a copy of the indictment are attached.

DEPARTMENT OF JUSTICE,

CRIMINAL DIVISION,

Washington, DC, December 17, 1999.

Hon. ARLEN SPECTER,

Subcommittee on Administrative Oversight and the Courts, Committee on the Judiciary, U.S. Senate, Washington, DC.

DEAR SENATOR SPECTER: This is to thank you for honoring the request of FBI Director Louis J. Freeh that the Subcommittee postpone the hearings that it had

scheduled for December 14 and 16 on matters related to the investigation of Wen

Ho Lee. As Director Freeh noted, with the indictment of Mr. Lee on December 10,

the criminal case against Mr. Lee has entered a new and sensitive stage. United

States Attorney John J. Kelly and I, as well as the Attorney General, share Director

Freeh’s concern that holding hearings at this time could have inadvertently interfered and seriously harmed the criminal prosecution of Mr. Lee for misappropriation

of extraordinarily sensitive and important nuclear weapons information. Indeed, it

is reasonable to expect that Mr. Lee’s attorneys would have welcomed such hearings

as a way of generating information that they could have later used to attack the

Government’s prosecution.

Additionally, as Director Freeh noted, it is essential to the nation’s security that

we have the greatest opportunity possible to learn as much as we can from Mr. Lee

in a carefully controlled setting. We must not miss any possible way of reducing the

damage to the national security that Mr. Lee’s actions may have caused, regardless

of whether that damage is directly related to the pending criminal case against Mr.

Lee.

We also agree with Director Freeh that it would be impossible to completely isolate any aspect of the Wen Ho Lee investigation for hearing purposes. Many of the

witnesses have information that is pertinent to both criminal and national security

issues. Thus, even if the Committee had attempted to restrict testimony at the hearing to matters that it believed were unrelated to the criminal case, it could still have

elicited testimony that Mr. Lee’s counsel could exploit in the criminal prosecution.

We want to make clear that the Department of Justice has been, and will continue to be, cooperative with the Subcommittee in its investigation. We have provided the Subcommittee with open access to the FBI’s files on Mr. Lee and numerous Department officials have testified before the Committee. For the reasons discussed above, however, we strongly believe that holding hearings during the pendency of the criminal prosecution could have serious negative consequences for both

the prosecution and the national security. We greatly appreciate your understanding

of that concern. Once the criminal prosecution has concluded, we will be glad to provide testimony on the Wen Ho Lee matter.

Please do not hesitate to contact me if you would like to discuss this matter further.

Sincerely yours,

JAMES K. ROBINSON,

Assistant Attorney General.

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DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF INVESTIGATION,

Washington, DC, January 4, 2000.

Mr. EDWARD J. CURRAN,

Director, Office of Counterintelligence, Department of Energy, Washington, DC.

DEAR ED: I have been provided a copy of the undated FBI blind memorandum

captioned ‘‘KINDRED SPIRIT; LEE, WEN HO; LEE, SYLVIA; FCI–PRC.’’ As we

discussed telephonically, this document is in the possession of DOJ and I understand has been provided to one or more Congressional Committees. Also as we discussed, I told you I would cause an in-depth review to be made in the FBI and if

appropriate, correct any misperceptions this document creates when viewed out of

content. Having stated that, it is the purpose of this letter to (1) put that document

into its proper context and (2) correct at least what I understand from you are two

apparent misinterpretations of this document.

With respect to the document, I have been advised that it was created by FBI Albuquerque as a result of a telephonic discussion between the Assistant Special

Agent in Charge and a Deputy Assistant Director of the National Security Division.

It was intended only to be a ‘‘rough’’ update of the status of the investigation prepared by FBI Albuquerque. It was not intended to be further disseminated or to reflect all of the facts about any aspect of the investigation. As a ‘‘blind memorandum’’

it also is not intended to capture official witness statements or other evidence. In

common parlance, it is the equivalent of a ‘‘note to the file.’’ From what you described, it underscores the difficulty associated with utilizing any one document to

characterize a long term investigation or for that matter a critical aspect of the investigation.

With respect to the details of this document, I would like to comment on two aspects in particular:

(1.) In the first paragraph there are reported details of the polygraph of Wen Ho

Lee on December 23, 1998. These facts are accurate. However, as we discussed, your

impression was that this paragraph suggested that there was not the high level of

coordination between the FBI and DOE regarding this polygraph that you understood existed. To the contrary, from everything I know, this polygraph was coordinated appropriately. FBI Albuquerque agreed in advance with its role in a standby capacity as this was at the time a DOE administrative matter. My recent review

did not identify any coordination issue or conflict with respect to the conduct of the

polygraph.

(2.) The second paragraph reports on the status of an access to the polygraph

charts (for subsequent FBIHQ Polygraph Unit quality control review). It also attributes a DOE response to you by name.

With respect to the attribution to you by name, I can find no FBI employee that

can confirm such a statement. It may be that someone in DOE used your name, but

even that is not certain. Any indication that you personally made a statement preventing the FBI access to the polygraph charts is inaccurate.

With respect to the remaining facts in this paragraph as to access to the charts

they are accurate. However, they can in hindsight easily be taken out of context.

When we were informed on December 23, 1998, Wen Ho Lee passed the polygraph,

immediate access to the charts was requested but not insisted by the FBI. We were

informed of the DOE internal handling procedures. At the time, in part because we

were under the impression he had passed the polygraph, we waited for the charts

to be provided as we understood they would be. FBI Albuquerque did make inquiries as to the availability of these charts and were concerned with the time factor

involved. However, I can find no formal of the charts availability, in Albuquerque,

they were immediately obtained and transmitted to FBIHQ, and the quality control

review conducted. Upon learning that the FBIHQ Polygraph Unit believed the results to be inconclusive, this was immediately relayed to you telephonically.

I hope these comments place in proper context the blind memorandum and eliminates any misunderstanding on the two aspects noted above.

Sincerely yours,

NEIL J. GALLAGHER,

Assistant Director,

National Security Division.

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3 In December 1998, Lee was transferred to an unsecured area in LANL’s T Division. Although Lee lost his security clearance, and thus his ability to enter X Division, on February

23, 1999, Lee’s X Division office was sealed until it was searched on March 5, 1999. (App. at

223–25.) 4This was before LANL and the FBI knew that Lee had down-partitioned and downloaded

America’s nuclear secrets on to portable computer tapes. (App. at 220.)

DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF INVESTIGATION,

Washington, DC, September 21, 2000.

Hon. ARLEN SPECTER,

Committee on the Judiciary,

U.S. Senate, Washington, DC.

DEAR SENATOR SPECTER: Enclosed for your use is an excerpt from the ‘‘Statement

of Facts’’ portion of the Government’s answer brief filed in February 2000, with the

Tenth Circuit Court of Appeals. This pleading was filed in response to the brief filed

by counsel for Wen Ho Lee appealing the District Court’s denial of bail.

As you prepare for hearings on the Government’s handling of the Wen Ho Lee

case, I thought it would be helpful for you to have this factual explanation of the

classification levels of the material Lee down-partitioned and downloaded. That remains one of the publicly debated central issues. While much testimony and many

documents on this issue undoubtedly will be forthcoming, this excerpt provides a

concise, unclassified description of the nature of the material. Also enclosed is transcript from a recent edition of Nightline that reflects public statements by U.S. Attorney Norman Bay on this same and other issues.

As we identify other unclassified documents that appear useful for hearing preparation, we will bring them to your attention. Please feel free to contact me if you

have any questions.

Sincerely yours,

JOHN E. COLLINGWOOD,

Assistant Director,

Office of Public and Congressional Affairs.

Enclosures.

STATEMENT OF THE FACTS

1. LEE’S BACKGROUND

Lee was born in Taiwan in 1939. (App. at 220.) He has six siblings, three who

live in Taiwan and three who live in the United States. (App. at 221–22.) He is married and has two adult children, both of whom were born in the United States and

live here. (App. at 302–03.)

Lee came to the United States in 164 on a student visa and enrolled at Texas

A&M in College Station, Texas. (App. at 221.) Lee received his master’s degree in

1966 and his doctorate in 1969 in mechanical engineering. (App. at 221.)

In 1970, Lee became a naturalized United State’s citizen. (App. at 221.) His wife,

Sylvia, became a naturalized citizen in 1997. (App. at 221.) Lee and his wife both

speak Mandarin Chinese and, of course, English. (App. at 222.)

LANL hired Lee in 1980, and Lee worked for the laboratory until his termination

in March 1999.3 (App. at 222,225.) Lee was assigned to LANL’s X Division, the division responsible for the research and design of approximately 85 percent of the

United States nuclear stockpile, as a hydrodynamicist/engineer. (App. at 152,222.)

Lee’s primary job assignment throughout his eighteen years at LANL was to write

and implement physics models in the area of hydrodynamics as applied to nuclear

weapons research. (App. at 222–25.)

In 1993, Lee was notified that he was in danger of losing his job because of a

potential reduction in force (RIF). (App. at 292.) In response, Lee applied for overseas employment in Singapore, Taiwan, Hong Kong, Malaysia, Germany and Switzerland. (App. at 292–94.) Although Lee did not lose his job, he maintained professional contacts overseas. In March and April, 1998, for example, with LANL approval, Lee was a lecturer and consultant at a science institute in Taiwan for six

weeks.4 (App. at 294.)

2. THE PRELIMINARY INVESTIGATION

In 1996, the FBI began to investigate possible espionage by the People’s Republic

of China (PRC) with regard to a specific nuclear weapon in the United States arsenal—the W88 (App. at 219–20.) Although Lee was a subject of that investigation,

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5 806 megabytes of information roughly translates into 800 reams of paper, i.e., 400,000 pages

at 2,000 characters per page. (App. at 230–32.) 6 In addition, Lee surreptitiously created five tapes which contained unclassified information.

FBI agents found six tapes in Lee’s T Division office in March 1999. Of the nine that are missing, seven contain classified information and are charged in the indictment. The other two missing tapes contain data files required to run nuclear weapons source codes. (App. at 250–58,

1040–68, 1073–119.) 7 A ‘‘Primary’’ is the first stage of a nuclear weapon. The primary uses chemical high explosives and nuclear materials to start a nuclear reaction that produces sufficient energy to drive

the secondary stage. (App. at 13.) 8 ‘‘Secondary’’ is the second stage of a nuclear weapon. The secondary uses the energy produced by the primary to trigger a thermonuclear burn (nuclear fusion reaction). It is this thermonuclear burn that produces the ultimate destructive force of the nuclear weapon. (App. at

13.)

the indictment does not charge him with PRC-related espionage. (App. at 6–50.) Instead, a separate and distinct investigation of Lee began in late March, 1999, after

the FBI and LANL unearthed information that Lee had down-partitioned from a secure to an unsecured computer, 806 megabytes of Secret and Confidential Restricted

Data relating to thermonuclear weapon research and design.5 (App. at 220,230.)

When the nature and extent of the compromise was discovered, LANL immediately

and completely shut down its entire computing system for three weeks to scrub

Lee’s classified information from the unsecured computing environment. (App. at

359–60.)

As the subsequent investigation revealed that Lee surreptitiously created ten

portable cassette tapes6—seven of which remain unaccounted for—which contained

most of the 806 megabytes of classified information, the FBI and national intelligence agencies began an unsuccessful world-wide search for the missing tapes.

(App. at 708–09.) Lee was indicted after the search for the tapes was unsuccessful.

(App. at 707–11.) In terms of the overall national interest, finding the tapes was

more important than a successful criminal prosecution because Lee’s indictment

publicly confirmed the existence of the missing tapes and the value of the information on those tapes, and thus ‘‘whet[ed] [foreign intelligence services’] appetite to unlawfully gain access to those materials.’’ (App. at 708–11.)

3. THE NATURE AND THE SENSITIVITY OF THE SECRET AND CONFIDENTIAL RESTRICTED

DATA DOWN-PARTITIONED AND DOWN LOADED BY LEE

Four scientists testified about the nature and sensitivity of the Secret and Confidential Restricted Data Lee stole: Dr. Stephen Younger, Dr. Richard Krajcik, Mr.

John Romero, and Dr. Paul Robinson. Dr. Younger, as the Associate Laboratory Director for Nuclear Weapons at LANL, is entrusted with a $900,000,000 program

that employs 3,500 people, and is responsible for the research, design, development,

and safe stewardship of approximately 85% of the United States nuclear arsenal.

(App. at 151–52.) Dr. Richard Krajcik is a physicist who has spent. twenty-six years

at LANL, including seven years as the group leader for primary design and two

years as a project leader for advanced weapon design, and has been the Deputy X

Division Director since 1997. (App. at 496.) Physicist John Romero is the team leader for Code A, which is LANL’s most significant secondary design nuclear weapons

source code. (App. at 511–12, 649.) Dr. Paul Robinson, the current President of

Sandia National Laboratory, worked at LANL for eighteen years, first as a weapons

designer and then as the Principal Associate Director for National Security. (App.

at 683–84.) In addition, Dr. Robinson was the Ambassador for the United States to

the Nuclear Test Ban Talks in Geneva, Switzerland, which culminated in two treaties ratified by the United States Senate. (App. at 684.) As President of Sandia National Laboratory, Dr. Robinson is the Science Advisor to the Strategic Advisory

Committee to the Commander-in-Chief of Stratcom. (App. at 684.)

In providing an unclassified primer on American thermonuclear weapon design

and construction, both Dr. Younger and Dr. Krajcik testified that the major tools

used to design and develop American thermonuclear weapons are nuclear weapons

design source codes. (App. at 153–54,498–99.) American nuclear weapons design

source codes are extraordinarily complex and hundreds of thousands of lines long.

(App. at 154–60,498–500.) The source codes model and simulate every aspect of the

complex physics process involved in creating a thermonuclear explosion. (App. at

154–60,498–500.) The source codes are written to design specific portions of a nuclear weapon—either the primary7 or the secondary.8 (App. at 160,503.)

Although nuclear weapons source codes contain all of the physics involved in a

thermonuclear weapon, the source codes themselves require ‘‘data files’’—both classified and unclassified—to run actual simulations. (App. at 161–64,503–05.) Data

files contain all of the physical and nuclear properties of materials required for a

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9The codes Lee took have been assigned letters as ‘‘alias’’ names rather than using the true

code names. (App. at 345.) 10 According to Dr. Krajcik, the 806 megabytes of classified information in Lee’s library existed

in only two other places in the United States—the two national weapons laboratories, LANL

and Lawrence Livermore. (App. at 526–27,533.) 11Lee attempted to take one other secondary design code, but the team leader of that particular code turned down Lee’s three attempts to gain access to that code. (App. at 194–96.) 12The nineteen TAR files that Lee downloaded and as alleged in the indictment are designated by numbers one through nineteen.

nuclear explosion. (App. at 161–64,503–05.) Like nuclear weapons source codes, the

data files are the product of more than fifty years of both theoretical and experimental calculations, and they represent knowledge acquired from more than a thousand American nuclear tests. (App. at 161–64,503–05.) Data files become classified

as SRD when the properties of the materials are most directly relevant to nuclear

weapons, i.e., in environments involving very high pressures and temperatures.

(App. at 505.) The American national investment in producing the information contained on LANL SRD data files is of a magnitude of ‘‘hundreds of billions of dollars.’’ (App. at 164.) The information contained in these files cannot be duplicated given

the current ban on nuclear testing. (App. at 165.) ‘‘Input decks’’ are mathematical descriptions of the actual geometry and materials

within a nuclear device itself. (App. at 165–66,508–09.) In essence, as input deck

is an ‘‘electronic blueprint’’ of either a primary or secondary within a nuclear weapon. (App. at 509.)

According to Drs. Younger and Krajcik, Lee down-partitioned and downloaded all

of LANL’s significant nuclear weapon primary and secondary design codes in their

entirety. (App. at 174–76,521–23.)

They [Codes A, B, D/G, and I]9 represent the complete nuclear weapons design capability of Los Alamos at that time. There may have been small codes

that weren’t included in there, but they were the big ones. And they would enable the possessor to install the complete nuclear weapons design capability at

a remote location without a great deal of effort.

(App. at 174–75.) In addition, Lee down-partitioned and downloaded ‘‘all of the data

files required to operate those codes,’’ as well as multiple input decks representing

actual nuclear bomb designs that ranged in sophistication from relatively simple to

complex. (App. at 174–76,523–25.)

Dr. Krajcik described Lee’s personal library10 of America’s nuclear secrets as ‘‘chilling’’ because it

contained the codes important for doing design or design assessment, files important to determine geometries, important successfully tested nuclear weapons.

It contained important output setups, nuclear output setups. It contained devices across a range of weapons, from weapons that were relatively easy to

manufacture, let’s say, to weapons that were very sophisticated and would be

very difficult to manufacture. It contained the data bases that those codes

would require to run. And for someone who used those codes to incorporate

them into any kind of calculations that were made in terms of designing something new or checking something old, it was all there. . . . It really represents

a capability that someone could use to design and analyze nuclear weapons.

(App. at 509–10.) Lee’s theft of Codes A and G involved the taking of everything

an unauthorized possessor would need to design a functional secondary device.11

(App. at 510–12.) And Code D, which Lee also misappropriated, was the ‘‘latest and

best tool as of 1997’’ for primary design. (App. at 514).

Like his fellow LANL scientists, physicist John Romero found Lee’s down-partitioning of America’s nuclear secrets to be ‘‘unimaginable.’’ (App. at 652, 664). Romero was incredulous when he discovered what Lee had done. ‘‘I could not believe

it. I cannot—I still cannot. I have trouble believing it. It’s just—all the codes, all

the data, all the input files, all the libraries, the whole thing is there, the whole

ball of wax, everything.’’ (App. at 664.)

Mr. Romero, the team leader for Code A, explained that Lee took Code A in two

different formats, one of which was contained in File 1,12 and the other in File 2.

(App. at 652–53.) The disturbing difference between Files 1 and 2 was that File 1

contained the Cray supecomputer version of Code A while File 2 contained a version

of Code A that was adapted to run on non-Cray computers, albeit at far slower

speeds. (App. at 652–53.) Although Code A was designed to run on a Cray supercomputer, if one did not know the computing resources of a potential unauthorized possessor, one contemplating espionage would take both versions. (App. at 654–57.)

The same was true with the SRD data files Lee took in Files 5 and 7. According

to Mr. Romero, File 7 contained all of the data, both classified and unclassified, necessary to run any LANL nuclear weapons source code in ‘‘IEEE binary format.’’

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13Lee also down-partitioned and downloaded the unclassified data files in ASCII format,

which were the balance of what was contained in File 7. (App. at 658.) 14Lee assigned letters to the tapes he created, which are consistent with the designations of

the tapes in the indictment. (App. at 1069–71.)

(App. at 657.) File 5, a subset of File 7 in that it contained only classified data files,

was in ‘‘ASCII format,’’ which is ‘‘human readable.’’ 13 Lee’s theft of all of LANL’s

data files in two different formats, a ‘‘portable’’ machine readable binary format and

a human readable text, would be useful for unauthorized possessors with uncertain

computing platforms. (App. at 600.)

The information that Lee knowingly down-partitioned and downloaded on to the

missing portable computer tapes would mean different things to different unauthorized possessors. (App. at 177.) For a group or state that ‘‘did not have the indigenous scientific capability to do it alone,’’ the information ‘‘would represent an immediate capability to design a credible nuclear explosive.’’ (App. at 177.) A country that

had some experience with nuclear explosives could use the information to optimize

its nuclear bombs. (App. at 178.) An advanced nuclear state could use the information to ‘‘augment their own knowledge of nuclear explosives’’ and to ‘‘uncover

vulnerabilities in the American arsenal which would help them to defeat our weapons through anti-ballistic missile systems or other means.’’ (App. at 178.)

After being briefed on the contents of Files 1 through 19 and Tape N,14 Dr. Robinson, the current president of Sandia National Laboratory, testified that the information on the missing tapes ‘‘represent[s] a portfolio of information that would allow

one to develop a simple, easily manufactured weapon such as a terrorist weapon all

the way up to the very best that the United States is capable of designing.’’ (App.

at 690.) Dr. Robinson believed that putting Lee at liberty under any condition of

release would be a risk of the magnitude of a ‘‘you bet your country decision.’’ (App.

at 691.) What Lee did was ‘‘a grave undercut to our strategic posture.’’ (App. at 695.)

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U.S. DEPARTMENT OF JUSTICE, UNITED STATES MARSHALS SERVICE, DISTRICT OF NEW MEXICO,

Albuquerque, NM, January 6, 2000.

Re: Federal Inmate Wen Ho Lee.

Mr. LAWRENCE BARRERAS,

Warden,

Cornell Corrections, Inc., Santa Fe County Correctional Facility, Santa Fe, NM.

DEAR MR. BARRERAS: We have reviewed the Cornell Correction/Santa Fe County

Correctional Facility Segregation Policy with the United States Attorney’s Office

and we agree with some additional restrictions, the standard segregation policy currently in place at your facility would adequately confine Mr. Wen Ho Lee.

I understand implementing additional restrictions would not inflate the jail rate

all ready established with the United States Marshals Service. Therefore, effective

immediately it is requested that Mr. Lee be held in segregation with the following

additional restrictions imposed:

1. Mr. Lee is to be kept in segregation until further notice (single cell).

2. Mr. Lee is not to have contact with other inmates at anytime.

3. All outgoing mail except legal mail will be screened by the F.B.I.

4. Mr. Lee will not be permitted personal telephone calls.

5. Mr. Lee will be allowed to place collect telephone calls to attorneys of record

Mr. John Cline at (505) 244–7514 and/or Mr. Mark Holscher at (213) 430–6613. A

member of the jail staff will dial the telephone number and wait to verify that the

attorney is on the line.

6. Mr. Lee will be allowed contact visits with his attorneys only.

7. Mr. Lee will be allowed non-contact visits with immediate family members. To

include his wife Sylvia Lee, his daughter Alberta Lee and his son Chung Lee. The

family will schedule visits through attorneys John Cline or Mark Holscher. The attorneys will contact the FBI to arrange visits and they in turn will contact the Senior Warden or Deputy Warden. The FBI must be on site to monitor each visit. Visits

will not be allowed unless an FBI agent is present.

8. Visitors are to be restricted to Attorneys of Record and immediate family.

9. Any changes to Mr. Lee’s conditions of confinement will be authorized by USMS

personnel only.

10. Mr. Lee is not to be removed from the facility by anyone unless authorized

by the USMS.

Thank you for your assistance in this matter and if you have any further questions or concerns, please do not hesitate to contact me or Chief Deputy Tommy

Bustamante.

Sincerely,

JOHN S. SANCHEZ,

U.S. Marshal.

LAW OFFICES OF FREEDMAN, BOYD, DANIELS, HOLLANDER, GOLDBERG &

CLINE, P.A.,

Albuquerque, NM, January 6, 2000.

Re: United States v. Wen Ho Lee, Crim. No. 99–1417 JC/DS (D.N.M.)

ROBERT J. GORENCE, Esq.,

Acting U.S. Attorney,

Albuquerque, NM.

DEAR BOB: We consider Dr. Lee’s present conditions of confinement to be unlawful. I expect to address this point with you in detail shortly. In the meantime, I request the following changes:

1. At present, Dr. Lee must remain indoors 24 hours per day. He spends virtually

all of that time in his cell. I ask that Dr. Lee receive at least two hours outdoors

every day. I understand from officials at the detention center that this could be done

without exposing Dr. Lee to any of the inmates.

2. Dr. Lee should be permitted to have a television, radio, and CD player in his

cell and to receive access to newspapers.

3. Dr. Lee should be permitted to shower daily, rather than only five days per

week, as at present.

These changes could not possibly cause the government any security concern, and

they would somewhat mitigate the harsh circumstances of Dr. Lee’s detention.

I would appreciate a prompt response to this request.

Very truly yours,

JOHN D. CLINE.

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MEMORANDUM OF TELEPHONE CONTACT

Subject: Wen Ho Lee.

Originator: Mr. Larry M. Wortzel, PhD., Director, Asian Studies Center, The Heritage Foundation, Washington, DC.

Received by: Darrell G. Smith, Chief Investigator, Senate Judiciary, Criminal Justice Oversight Subcommittee.

Date/Time: January 21, 2000; 12:30 pm.

Mr. Wortzel stated that: In addition to the information he provided to me on January 13, he has recently obtained supplemental information. He has been in touch

with Debbie Young, employee at DIA (202) 231–4350, who advised that the notice

which was generated to him, when he was still at the U.S. Embassy in Beijing, has

been located and reflects the following information:

Instead of the fall of 1995 or 1996, the conference in Beijing, China was actually held from 10/30/97 through 11/8/97.

The Jianguo Hotel, is correct in regard to the location where the conference

was held.

Based on the listing contained in the notice, neither Wen Ho Lee nor Sylvia

Lee are reflected as official members of the delegation from Los Alamos. He assumes that since Sylvia Lee stated to him that the Chinese paid for her way,

that they also probably paid for Wen Ho Lee as well, since Wen Ho Lee is not

listed as one of the members of the delegation.

Teresa Richardson is listed as the American administration person from Los

Alamos who was acting as the liaison person for Los Alamos.

This memorandum contains a summary of information provided by Mr. Wortzel

on January 21, 2000.

DARRELL G. SMITH,

Chief Investigator,

Criminal Justice Oversight Subcommittee.

U.S. DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF INVESTIGATION,

Albuquerque, NM, May 2, 2000.

Hon. NORMAN C. BAY,

U.S. Attorney, District of New Mexico, Albuquerque, NM.

DEAR NORMAN, Confirming our telephone conversation on April 26th, please be

advised regarding my concerns in the event that the special administrative measures (SAM) as authorized by United States Attorney General Janet C. Reno were

to be relaxed so as to allow Dr. Wen Ho Lee to potentially make an unauthorized

disclosure of classified United States information.

I am deeply concerned that in the event the special administrative measures were

loosened, our ability to detect an unauthorized disclosure of classified information

would be seriously jeopardized. Additionally, I am of the firm conviction that any

loosening of the SAM would enable Dr. Lee to communicate with an agent of a foreign power regarding the disposition or usage of the materials contained in the

seven missing tapes.

You may recall that Special Agent Robert A. Messemer testified in two detention

hearings that there was no reasonable assurances to the community arising from

any combination of court imposed restrictions which could reasonably guarantee our

national security. The Tenth Circuit Court of Appeals upheld the district court’s detention order.

As you well know, Dr. Lee has not afforded us with an opportunity to re-interview

him regarding the whereabouts of the tapes or to furnish us with sufficient details

regarding the timing and means of the purported destruction of the seven missing

tapes containing Secret and Confidential Restricted Data relating to the research

and design of nuclear weapons.

Accordingly, we are not satisfied that the tapes, in fact, have been destroyed.

Notwithstanding the fifty-nine count indictment for which Dr. Lee is currently

charged, our investigation is continuing. Our ability to effectively undertake our current investigation would be adversely affected in the event Dr. Lee were to be released from the provisions of the SAM.

As a father and husband myself, I am naturally sensitive to the concerns of the

Lee family and their desire to communicate with one another for mutual support

and succor. It is precisely my personal concern and compassion for Dr. Lee that we

in the FBI have fully supported the idea, as first expressed by Dr. Lee’s counsel,

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to modify the SAM to afford Dr. Lee with his weekly family visits on Saturdays in

lieu of Fridays.

Therefore, in view of the above and in consideration of the overriding national security implications in the event the SAM were to be relaxed from its current implementation, I highly recommend without reservation that the Attorney General authorize a 120 day extension of the SAM upon the expiration of the original measures.

Sincerely,

DAVID V. KITCHEN,

Special Agent in Charge.

SANTA FE COUNTY

SHERIFF’S DEPARTMENT,

Albuquerque, NM, March 10, 2000.

MEMORANDUM

To: Samuel Montoya, County Manager.

From: Raymond L. Sisneros, Sheriff.

Subject: County Inmate Wen Ho Lee.

This is to inform you that earlier this week I received some phone calls from unknown persons concerned that Mr. Lee was being mistreated and not properly cared

for in the jail.

Today at 9:30 a.m., I personally met with Mr. Lee for about 20 minutes in his

jail cell. I explained my role as Jail Monitor and the calls I received. Other than

being incarcerated he had no complaints. The staff was treating him very well and

singled out Warden Barreras and Deputy Warden Romero as treating him great. He

told me he has seen a doctor when requested, and has not been sick or ill at any

time during his incarceration. His only request was for additional fruit at the

evening meal which I relayed to Warden Barreras. I gave him my business card and

told him to contact me through his attorney if there was any mistreatment or other

issues regarding his incarceration.

At no time did we discuss his case or any fact relating to it. I emphasized my

role as the Jail Monitor.

Because of the high profile nature of this case, I felt it was necessary to either

confirm or disapprove the allegations. Mr. Lee was very surprised about the calls

and stated, ‘‘I haven’t complained to anyone about the jail because I am being treated very well.’’ Please brief the Commissioners in case they are confronted by any concerned parties that may try to make demands.

THE DEPARTMENT OF ENERGY,

Washington, DC, May 4, 2000.

Hon. JANET RENO,

Attorney General of the U.S., Department of Justice, Washington, DC.

DEAR ATTORNEY GENERAL RENO: At the request of the Department of Justice, I

enclose a recertification under 28 C.F.R. 501.2 that the unauthorized disclosure of

classified information described in the indictment in the above referenced case

would pose a threat to national security. I understand that this certification will assist you in continuing special administrative measures during the period of Dr. Lee’s pretrial confinement designed to protect the extremely sensitive weapons information that the indictment alleges Dr. Lee diverted to his own possession. I fully support doing all that is necessary to protect against further compromise of this information.

At the same time, I want to emphasize my concern that, to the extent consistent

with protection the sensitive weapons information to which the indictment of Dr.

Lee pertains, Dr. Lee’s civil rights as a pre-trial detainee should be honored. I understand that, in response to a request by Dr. Lee’s counsel, the Department of Justice has arranged for a translator to be present when he speaks with his family so

that he can speak Chinese. I further understand that arrangements have been made

to permit him to visit with his family on weekends, to have access to Los Alamos

National Laboratory with his lawyers under appropriate safeguards so that he can

prepare his defense, and to have access to a radio and reading material of his

choice, as well as a reasonable period of exercise every day. Finally, I understand

that the conditions of his confinement are in no respect more restrictive than those

of others in the segregation unit of the detention facility, where he is confined speVerDate 11-MAY-2000 13:22 Nov 01, 2001 Jkt 074193 PO 00000 Frm 00252 Fmt 6601 Sfmt 6621 E:\HR\OC\A193.XXX pfrm04 PsN: A193
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cifically to protect against further compromise of classified information. Based on

this information, I am satisfied that his civil rights are being adequately protected.

Yours sincerely,

BILL RICHARDSON.

U.S. DEPARTMENT OF JUSTICE, UNITED STATES ATTORNEY, DISTRICT OF

NEW MEXICO,

Albuquerque, NM, July 17, 2000.

Re: United States v. Wen Ho Lee, Crim. No. 99–1417 JP.

LAWRENCE BARRERAS,

Senior Warden, Santa Fe County Detention Center, Santa Fe, NM.

DEAR WARDEN BARRERAS: I write to confirm our conversation of this morning and

to thank you for your favorable response to our request to arrange for the following

three modifications of the conditions of confinement for the defendant Wen Ho Lee

(‘‘Lee’’). First, we request that Lee be permitted to enjoy his daily recreation without

any wrist, leg or belly restraints. Second, we request that he be afforded recreation

on Saturdays and Sundays as well as his current weekday recreation hours. Finally,

we request that he be allowed extra fruit.

REMOVAL OF RESTRAINTS DURING RECREATION PERIODS

As I understand it, Lee is housed in administrative segregation at the Santa Fe

County Correctional Facility. As is the case of all others housed in administrative

segregation, Lee enjoys at least one hour per day of recreation. During such recreation periods, as is the case for all other administrative segregation inmates, Lee’s

hands were handcuffed to a belly chain. Given that, unlike most or all of the other

inmates housed in administrative segregation, Lee was not placed in such segregation because he violated any of the detention facility’s rules, or posed a risk of violence toward any staff or fellow inmate at the facility, our request was that he not

be in a belly chain or otherwise handcuffed during his recreation periods.

As I understand it, the reason Lee has been handcuffed during his recreation period is because the rules of the detention facility required it as opposed to the explicit conditions of the Attorney General’s SAM order. However, because the SAM

order provides that the more restrictive conditions of the SAM order or the detention facility’s rules apply and because the SAM order does not require restraints

during recreation, you are free to remove the restraints during recreation. I have

been advised that the Marshal’s Service has no opposition to your accommodation

of our request in this regard. I greatly appreciate your willingness to modify your

facility’s general rule in the case of this one inmate’s housing conditions, and I appreciate your recognition of the unique circumstances of this situation.

WEEKEND RECREATION PERIODS

While, due to lack of correctional officer personnel, no inmate housed in administrative segregation is afforded recreation on weekends, I appreciate your willingness

to arrange for such recreation for Lee on weekends. During our conversation today,

you indicated that you would arrange for such weekend recreation provided that any

additional costs would be considered by the Marshal’s Service. I would appreciate

your addressing this directly with the Marshal’s Service in the hopes that you can

resolve this issue as per our request.

ADDITIONAL FRUIT

While I was unaware of this issue, I thank you for advising me of it and your

willingness to allow Lee more fruit.

Please call me at (505) 224–1516 should you require any additional information.

I had been under the mistaken impression that these modifications had already

been made so I would be grateful if you would notify me as soon as they are implemented. Thank you again for your assistance in this matter.

Very truly yours,

GEORGE A. STAMBOULIDIS

(For Norman C. Bay, U.S. Attorney).

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CORNELL CORRECTIONS,

Santa Fe, NM, July 18, 2000.

Mr. GEORGE A. STAMBOULIDIS,

Assistant U.S. Attorney, U.S. Department of Justice, Albuquerque, NM.

DEAR MR. STAMBOULIDIS: As per our conversation and in reply to your letter

dated July 17th, 2000 I will arrange to have restraints removed from inmate Wen

Ho Lee during his scheduled recreation times, and we will continue to give inmate

Wen Ho Lee additional fruit.

I did not agree to provide inmate Wen Ho Lee weekend recreation as it will involve additional staff costs. I indicated that I am willing to accommodate the request

if per diem is arranged through the USM office for that service. This matter will

have to be coordinated through your office.

If you have further questions please contact me at 471–4941 ext., 214.

Sincerely,

LAWRENCE BARRERAS,

Senior Warden.

LAW OFFICES OF FREEDMAN, BOYD, DANIELS,

HOLLANDER, GOLDBERG & CLINE, P.A.,

Albuquerque, NM, July 26, 2000.

Re: United States v. Wen Ho Lee, Crim. No. 99–1417 JP (D.N.M.)

GEORGE A. STAMBOULIDIS,

Assistant U.S. Attorney, Office of the U.S. Attorney, Albuquerque, NM.

DEAR GEORGE: On July 12, you stated in open court that, through the efforts of

your office, Dr. Lee would be permitted to exercise without restraints. I have no

doubt that you made this statement in good faith and believed that it was true. Unfortunately, in the two weeks since you made your statement, Dr. Lee has not been

permitted to exercise without restraints, and has, in fact, received almost no exercise at all. I do not know whether this is a deliberate effort on the part of someone

in the government to make Dr. Lee’s conditions more onerous or, more likely, simple

bureaucratic indifference. Whatever the case, I ask that you please do everything

in your power to make your statement to the Court become a reality.

Very truly yours,

JOHN D. CLINE.

CORNELL CORRECTIONS,

Santa Fe, NM, August 1, 2000.

Mr. GEORGE A. STAMBOULIDIS,

Assistant U.S. Attorney, Department of Justice, Albuquerque, NM.

DEAR MR. STAMBOULIDIS: In response to your letter dated July 30th, 2000 inmate

Wen Ho Lee began recreating without restraints on July 18th, 2000 at 8:30 a.m.

As of August 5th, 2000 he is also allowed participation in the recreation yard 7-days

a week for a period of 1-hour per day.

In reply to inmate Wen Ho Lee’s housing conditions: inmate Wen Ho Lee is permitted to have a radio in his cell, this gives him the ability to listen to news programs; he receives reading materials per the SAM guidelines.

In addition, an exception to the rule was made to grant inmate Wen Ho Lee visits

on Saturdays opposed to the regular Friday visiting schedule; this was done in order

to accommodate his family. Supervisors are the only staff that are assigned to oversee his escort and visit. Inmate Wen Ho Lee also receives extra fruit at dinnertime,

daily.

If you have further questions or require additional information please contact me

at 471–4941 ext. 214.

Sincerely,

LAWRENCE BARRERAS,

Senior Warden.

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U.S. DEPARTMENT OF JUSTICE, U.S. ATTORNEY, DISTRICT OF NEW MEXICO,

Albuquerque, NM, September 7, 2000.

Hon. JANET RENO,

Attorney General of the United States,

Washington, DC.

DEAR ATTORNEY GENERAL RENO: The United States Attorney’s Office for the District of New Mexico requests that you, pursuant to your inherent authority as the

Attorney General of the United States, direct the United States Marshal Service to

extend again the special administrative measures that have been taken in effect

since January 13, 2000 with respect to the pretrial detention of Wen Ho Lee. You

renewed the special administrative measures once before on May 12, 2000. The requested special administrative measures continue to be necessary to prevent the disclosure of highly sensitive classified information.

As you know, Wen Ho Lee (‘‘Lee’’) was directed on December 10, 1999 on charges

of illegally transferring nineteen TAR files containing Secret and Confidential Restricted Data relating to the research and design of nuclear weapons in the U.S. arsenal. The indictment also charged Lee with downloading most of this information

onto ten portable computer tapes, seven of which still are missing.

Lee has been in custody since the day the indictment was returned. Both a United

States Magistrate Judge and then a United States District Judge found that Lee

posed such a risk of danger to the nation that there was no condition or combination

of conditions under which Lee could be released pending trial. The risk Lee posed,

and continues to pose, is that he may reveal to an unauthorized possessor either

the whereabouts of the missing tapes or how to use the information on those tapes.

On February 29, 2000, the Tenth Circuit Court of Appeals upheld the district

court’s detention order, observing that

[t]he ‘‘potentially catastrophic’’ risk to the safety of the community, indeed the nation, presented by Lee’s ability to communicate information

about the location of the missing tapes or their contents if he is released

pending trial . . . is unprecedented. . . . We can conceive of few greater

threats to the safety of the community than the risks presented in this

case.

On August 24, 2000, after three days of hearings on Lee’s Renewed Motion for

Pretrial Release, Judge Parker granted Lee’s motion. Judge Parker reasoned that

‘‘[i]t is no longer indisputable, as the government made it appear in December 1999,

that the missing tapes contain crown jewel information about the nation’s nuclear

weapons program.’’ Nonetheless, Judge Parker ordered that Lee be released subject

to extremely strict conditions designed to prevent Lee from communicating with any

third party, indicating that any such communications still pose a danger to national

security. Lee was scheduled to be released at noon September 1, 2000.

On September 1, 2000, the government obtained authorization from the Solicitor

General to appeal Judge Parker’s release order and to request a stay of that order.

The government filed its Notice of Appeal and Request for Stay approximately half

an hour before Lee was scheduled to be released. During the hearing on the government’s Request for Stay, the Tenth Circuit issued a stay until further order of that

Court. The government filed an emergency request for stay in the Tenth Circuit

later on September 1, 2000, which currently is pending.

Nothing has changed since the special administrative measures were first imposed to reduce the risk of Lee disclosing highly sensitive classified information to

an unauthorized possessor. Consequently, we request that the special administrative measures imposed on January 13, 2000 and renewed on May 12, 2000 be extended for another 120 days upon the expiration of the original measures.

Sincerely,

NORMAN C. BAY,

U.S. Attorney.

UNCLASSIFIED STATEMENT OF DCI GEORGE J. TENET AS REQUESTED BY THE SSCI

The Central Intelligence Agency did not play a decision-making role in the question of whether or not Wen Ho Lee should be prosecuted for mishandling sensitive

nuclear weapons information. The Agency was asked to look at the potential value

to unauthorized recipients of the information FBI said was included on the tapes

Wen Ho Lee was alleged to have made, some of which were missing. The Agency

did not make any recommendations about how the investigation should proceed or

whether or not Wen Ho Lee should be prosecuted.

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At a December 4, 1999 meeting at the White House Situation Room, we were

asked to summarize the potential value of the information FBI said was included

on the tapes. Based on FBI’s verbal summary of the tapes, they appeared to contain

US nuclear weapon design codes and specific descriptions of the materials and geometry of several nuclear weapon primaries and secondaries. We briefed the

attendees that this information would help primarily from a design perspective, providing significant insight and guidance almost equating to a graduate course in nuclear weapons design. But for a country to design, develop, test, and deploy a nuclear weapon, more is required than design codes; for example, a country must possess the requisite fissile material, the fabrication technology to build the device, and

the engineering expertise to weaponize the device for delivery. The actual value of

the information depends in large part on the capabilities of the country or group

that received it. Our analysis included countries with robust nuclear weapons programs; with nuclear weapons programs but little or no testing; with limited or no

programs but with high technological capabilities; and without technological capabilities.

Our participation in the meeting was limited to providing a brief summary of the

potential value of the information if obtained by others.

DEPARTMENT OF ENERGY,

Washington, DC, April 3, 2001.

MEMORANDUM FOR THE SECRETARY

From: Gregory H. Friedman, Inspector General.

Subject: Special Review of Profiling Concerns at the Department of Energy

(I01HQ003).

In November 2000, the former Secretary of Energy requested that the Office of

Inspector General review the extent to which ‘‘profiling’’ of Federal and contractor

employees has occurred in the Department of Energy (Department) security process.

Specifically, we were asked to review whether, based on employees’ national origin,

the Department unfairly treated employees during the security clearance renewal

process, and in actions taken as a result of security violations. In short, information

reviewed by the Office of Inspector General did not support concerns regarding unfair treatment based on national origin in the security processes reviewed.

Scope and methodology

Our review focused on Headquarters, Lawrence Berkeley National Laboratory,

Lawrence Livermore National Laboratory, Los Alamos National Laboratory, Oak

Ridge National Laboratory, and Sandia National Laboratories. We worked with representatives from a number of Department organizations to identify instances in

which individuals alleged that unfair treatment occurred based on national origin

in the security clearance renewal process and in actions taken as a result of security

violations. These included: The Office of the National Ombudsman; Office of Economic Impact and Diversity; Office of Hearings and Appeals; Office of Security Affairs; and the Operations Offices in Albuquerque, Oakland, and Oak Ridge. We also

worked with security personnel to review security-related data.

To put the scope of our review in context, at any given time, there are a number

of Department personnel, both Federal and contractor, pursuing grievances and

other concerns with respect to alleged discrimination, bias, or disparate treatment

based on race, age, gender, religion, and other factors in the employment arena. An

examination of these matters was not part of our review. Consequently, we are not

in a position to comment on the general climate in the Department with respect to

these concerns.

Concerns regarding ‘‘profiling’’ in the Department of Energy were heightened in

the aftermath of the espionage investigation and arrest of a former nuclear weapons

scientist at the Los Alamos National Laboratory. We did not address whether the

former Los Alamos scientist was himself a victim of unfair treatment. This matter

has been part of a review by the Department of Justice and, thus, it was not included in the scope of our review.

Findings

Our review identified four cases involving possible unfair treatment. None of the

cases was the subject of a formal complaint of discrimination. Nevertheless, we examined the general circumstances of these cases, and found that they did not support concerns regarding unfair treatment based on national origin in the security

processes reviewed.

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Our review disclosed that the Department’s security does not systematically

record, track or maintain information concerning individuals’ national original in a

centralized database. The ‘‘Questionnaire for National Security Positions,’’ which

must be completed by each employee for a Department of Energy security clearance,

does request information concerning an individual’s country of birth and citizenship.

Similar information is also requested for certain members of the individual’s family.

We were informed that the questions are included in order to determine whether

the individual’s or relatives’ potential affiliations with other countries warrant further customary and appropriate review and analysis. Security officials asserted that

to systematically record national origin and similar information, other than as described above, could be perceived as engaging in the very ‘‘profiling’’ sought to be

avoided.

In January 2000, the Office of the National Ombudsman was established as a

component of the Office of Economic Impact and Diversity to provide an opportunity

for employees to confer with a neutral designee to discuss concerns, recommendations, and complaints they perceived were interfering with work, productivity, or

morale. The National Ombudsman summarized for the Office of Inspector General

the concerns expressed to him about the security process. He developed the information through one-on-one encounters, surveys, and ‘‘town hall meeting.’’ These concerns included:

Alleged insensitive remarks and offensive attitudes;

The appearance of double standards;

Questionable and ambiguous policies and rules;

Possible abuse of authority;

Potential disparate treatment.

The National Ombudsman stated his belief that there are ‘‘. . . strong and continuing allegations about bias and profiling....’’ However, the Ombudsman declined to identify the individuals who had expressed concerns, citing his commitment to maintaining the confidentiality of those with whom he spoke. Additionally,

he indicated that he did not generally maintain records of his encounters, and could

not provide statistical data, which may have identified improper patterns of unfair

treatment. He stated that he recognizes the need for the Office of the National Ombudsman to have a system in place to capture important information brought to the

office. He expects that such a system will be developed.

The National Ombudsman further advised that when themes or trends are identified by his office with respect to discrimination and disparate treatment, a memorandum may be sent to appropriate Department managers. The National Ombudsman advised that no such memoranda had been sent relative to the issues within

the scope of the Office of Inspector General review.

Our review was one of a number of initiatives underway serious public and employee concerns about unfair treatment. The Department, for example, initiated several steps designed to combat and eliminate the possibility of discrimination of any

kind. This included the formation of the Task Force Against Racial Profiling. The

Task Force recommended, in part, that a team be established to promptly address

security practices which may involve questions or issues of racial ‘‘profiling.’’ The

Task Force’s Implementation Team Report of January 2001 states that a Security

Issues Resolution Team has been established to address such safeguards and security matters. The Office of Economic Impact and Diversity has informed us that the

Security Issues Resolution Team had not received or processed any allegations.

Additionally, we were informed that the Office of Economic Impact and Diversity

and its subordinate offices will focus on and launch several initiatives during Fiscal

Year 2001 and beyond relating to unfair treatment. According to the Office of Economic Impact and Diversity’s most recent annual report, the office plans, in part,

to ‘‘conduct the year 2001 Department-wide electronic survey to measure the workplace climate;’’ ‘‘develop and implement action plans to address racial profiling in

the workplace;’’ and ‘‘extend the review and reporting of employee concerns at DOE

to include the activities of contractor employees.’’ Furthermore, the Office of the National Ombudsman has identified a goal to analyze ‘‘trends and patterns of employment, security clearances, and accountability actions [emphasis added]’’ and participate in the ‘‘review of Department-wide policies, processes, and procedures.’’

General Accounting Office reviews

The U.S. General Accounting Office (GAO) recently initiated a review of personnel

actions at Department weapons labs over the past decade to determine if there has

been differential treatment in the handling of cases involving minorities. The current review follows a December 1994 GAO report on suspensions of security clearances for minority contractor employees at the Department’s Albuquerque, Oak

Ridge, and Savannah River Operations Offices.

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GAO reported that the number of security clearances suspended for any particular

group was relatively small. Nevertheless, GAO found that the clearances of certain

racial or ethnic groups at the reviewed offices were suspended more often that

would be statistically expected. GAO further reported that the Department did not

monitor suspensions of security clearances for ‘‘minority groups’’ and was not aware

of the statistical disparities. GAO noted that disparities in the number of clearances,

in and of themselves, did not mean that the Department is or is not discriminating

against racial or ethic groups.

GAO recommended that the Department (1) investigate the reasons for the disparities identified by GAO in the number of security clearances suspended for contractor employees and take action to correct any problems the investigation identifies, and (2) require that data on the racial and ethnic background of contractor employees whose clearances are suspended at all locations be compiled, monitored, and

reviewed to identify any statistical disparities, and investigate and take appropriate

corrective action if such disparities occur.

We learned that the Department disputed the methodology used by GAO in its

statistical analysis and took the position that regulations prohibit requiring employees to provide information on race, ethnicity, or gender for use in granting or suspending clearances. Nevertheless, in response to the GAO report, the Department

indicated that the Office of Safeguards and Security would provide listings of individuals whose clearances are revoked through Fiscal Year 1996 to the Office of Economic Impact and Diversity, which would attempt to collect information on employees’ race and ethnicity on a voluntary basis. Documentation made available to the

Office of Inspector General indicates that a list was generated by the Office of Safeguards and Security for Fiscal Year 1995. We could not confirm, however, that the

Office of Economic Impact and Diversity took follow-up action on the Fiscal Year

1995 list or that a list was generated or analyzed for Fiscal Year 1996.

Conclusion

Information reviewed by the Office of Inspector General did not support concerns

regarding unfair treatment based on national origin in the security processes examined. Despite our efforts to obtain all relevant information, there is no assurance

that the four cases cited above were the only instances at the Department of Energy

in which a Federal or contractor employee believes he or she has been the victim

of ‘‘profiling.’’ Indeed, the National Ombudsman observed, based on his own interviews, that allegations of ‘‘profiling’’ emerged frequently and among many groups.

However, factors beyond our control, such as the Ombudsman’s understandable

commitment to affording confidentiality to those with whom he spoke, may have resulted in an underreporting to the Office of Inspector General of the total number

of employees who believe they have been the victims of ‘‘profiling’’ in areas that

were a part of our review.

Recommendations

Based on our assessment, we recommend that the Department, including the National Nuclear Security Administration:

(i) Examine its actions in response to the 1994 GAO report to ensure that all appropriate steps have been taken to implement the recommendations;

(ii) Determine if there are, in fact, statutory restrictions or other rules limiting

the collection of data on national origin, race or ethnicity for Federal and contractor

employees in relation to security processes;

(iii) Determine whether to implement a process for identifying statistical disparities in security processes; and

(iv) Facilitate innovative initiatives by the Office of Economic Impact and Diversity, including the Office of the National Ombudsman and the Security Issues Resolution Team, to identify, address, and resolve cases or concerns about ‘‘profiling.’’

Over and above the fundamental question of fairness to all individuals, disparate

treatment—both real and perceived—can have a detrimental effect on morale within

the Department’s workforce. Consequently, management at both the federal and

contractor levels must ensure that the Department’s zero tolerance policy for such

treatment is executed in a way that promotes confidence in the basic fairness of the

security process.

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U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC, October 8, 1999.

Hon. JANET RENO,

Attorney General of the United States, Department of Justice, Washington, DC.

DEAR MADAM ATTORNEY GENERAL: I am in receipt of your classified response to

me dated October 1, 1999 (though apparently delivered to our Senate Security afterward), and shall address with you in due course the principal issue that is the subject of that correspondence—the reasons for the inquiry recently begun by you and

Director Freeh into the efficacy of earlier investigations into the compromise by

China of our government’s sensitive W–88 nuclear technology.

In the meantime, however, I must ask for your prompt attention to a matter of

grave concern that was raised only peripherally in your recent letter, and that had

been broached by you in only the most vague terms in he course of our September

24, 1999 meeting. I refer to your letter’s acknowledgment that, at the time of your

June 8 appearance before this Committee, the Department of Justice had not

‘‘pulled together’’ all the documents pertaining to the Department’s investigation

into possible espionage by Mr. Wen Ho Lee, and to your concession in our recent

meeting that some of your testimony at the June 8 hearing was therefore inaccurate. I was surprised to learn of the nature and contents of some of these documents, as they bear directly on the Committee’s consideration of the facts surrounding the investigation of Mr. Lee.

I am deeply concerned that the Department’s apparent failure to provide you with

key documents prior to the time of your testimony before the Senate Judiciary Committee may reveal serious neglect by Department officials.

Indeed, there appears to be an alarming frequency with which the Department

staff fails to share with you (and, in turn, the Congress) pertinent information concerning the most important investigations being undertaken by federal law enforcement authorities. Most recently, in the course of the report by the Department’s own

Inspector General that contends the Department’s campaign finance investigation

was conducted ineptly [Inspector General’s Report, Unclassified Executive Summary, ‘‘The Handling of FBI Intelligence . . .,’’ July 1999, at 4–5], it is concluded

that you were not properly apprised by Department staff of the existence of key

pieces of information. Further, as has been made clear by your recent statements,

you were not apprised of key documents within the possession of the Department

and the Bureau that pertained to the use of incendiary devices in the final hours

of the confrontation at Waco.

I am also concerned that this most recent example of a belated discovery of documents means that this Committee, too, has been thwarted in its efforts to obtain

all relevant documents concerning the role played by the Department and the Federal Bureau of Investigation in investigating this matter. As you know, I repeatedly

asked you and other Department officials whether the Judiciary Committee had received all documents pertaining to its investigation of Mr. Lee. [See, e.g., May 5,

1999 hearing, placing AG on notice of the Judiciary Committee’s intent to inquire

into the Department and Bureau’s investigatory actions concerning Mr. Lee; June

4, 1999 letter to AG, constituting a ‘‘formal request for all documents generated

within the Department of Justice that related in any way to an application under

[FISA] concerning Mr. Wen Ho Lee’’; June 14, 1999 letter to AG requesting ‘‘a log

of all documents, by date and description—whether extant or not, and including all

notes, letters and communications (including any electronic mail)—that were generated by any employee or agent of the Department . . . that pertain in any manner

to the consideration of a FISA application concerning Mr. Wen Ho Lee’’; July 22,

1999 letter (with Sen. Specter) to AG ‘‘request[ing] . . . all documents in the Department’s possession relating to . . . the Department’s decision not to prosecute

Mr. Wen Ho Lee’’).].

Accordingly, and regrettably given this late date, I would ask that you prepare

for me promptly a list, by date and description, of those documents that were not

timely provided to this Committee, together with an explanation as to why such documents were not submitted to this Committee in accord with the Committee’s morethan-four-month-old document requests. Moreover, I ask that you provide me with

your view as to which of these documents—or which parts of these documents—

would be properly declassified so as to be shared with the public.

Please submit your response to me by October 13, 1999, or the Committee will

need to consider pursuing other options to exercise its oversight functions.

Sincerely,

ORRIN G. HATCH,

Chairman.

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DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF INVESTIGATION,

Washington, DC, November 10, 1999.

Hon. FRED THOMPSON,

Chairman, Senate Governmental Affairs Committee,

U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: In my testimony before your Committee on June 9, 1999,

I provided, on several occasions, my assessment of the Department of Energy (DOE)

Administrative Inquiry (AI) that, in part, formed the bases upon which the FBI

predicated its investigation of Wen Ho Lee. I understand that I stated at different

times that:

(1) I ‘‘had full credibility in the report’’;

(2) I had ‘‘found nothing in DOE’s AI, nor the conclusions drawn from it,’’

to be erroneous; and

(3) I stated there is a ‘‘compelling case made in the AI’’ to warrant focusing on Los Alamos.

At the time of my testimony, these statements were based on my personal review

and understanding of the facts and the FBI evaluation of the AI. I believed then

that these statements were accurate given that understanding.

I have, subsequent to that testimony, asked for and become aware of additional

facts that I want to bring to your attention, in order to be certain that the record

before your Committee is complete and accurate.

(1) In November, 1998, and December, 1998, and again in January, 1999, there

were some written analyses by FBI Albuquerque (FBI AQ) which question the accuracy of certain representations and conclusions in the AI. Although these documents

were sent to FBI Headquarters (FBIHQ), I was unaware of their existence before

I testified in June.

Further, I have recently learned that the January, 1999, document was included

in a briefing book provided to me, other Bureau Executives and Senior Department

of Justice officials in May, 1999. It was included in a section about polygraph issues

because that was the primary focus of the document. It transmitted the results of

the DOE polygraph administered to Wen Ho Lee. I did not review that section of

the briefing book to include the January, 1999, document at that time, inasmuch

as I was familiar with the polygraph issue and I knew Wen Ho Lee had failed an

FBI polygraph shortly after this document would have arrived at FBI Headquarters.

(2) In July, 1999 I engaged in a dialogue with SAC AQ regarding this AI. We

agreed that a draft document would be provided to me regarding FBI AQ’s analysis

of this AI. Upon receipt of this draft on or about July 9, 1999, and a subsequent

conversation with the SAC, I then learned there was a document submitted to

FBIHQ in January, 1999. I have since become aware of the two (2) previous documents (November, 1998 and December, 1998), which contain statements questioning

the scope of the AI. I understand all of these documents have been provided to your

Committee.

As a result of my dialogue with SAC AQ, we agreed that AQ would conduct a

number of interviews in an attempt to further understand and expand upon the

technical portions of the AI. On August 20, 1999, FBIHQ located and interviewed

one of the scientists who participated in the technical portion of the AI. This scientist stated that he had expressed a dissenting opinion with respect to the technical aspects of the AI. His statement is in direct conflict with the AI submitted to

the FBI because the AI does not reflect any dissension by the ‘‘DOE Nuclear Weapons Experts.’’

Based upon a verbal briefing by FBI AQ of this August 20, 1999, interview, I requested that AQ submit to me a document establishing, for the record, FBI AQ’s

concerns with this AI. Upon receipt of this document, I shared it with the Director

and it has since been shared with the Attorney General and the Secretary of Energy. Based upon this document and other factors, a review has been initiated by

the FBI to re-evaluate the scope of the AI. I understand that you or your staff have

received a briefing on the scope and direction of this new initiative and that it

should not impact on any subsequent criminal investigation of Wen Ho Lee. The

focus of this new initiative is to determine the full universe of both compromised

restricted nuclear weapons information and who had access to that information in

addition to anyone identified in the original AI.

On June 9, 1999, when I testified before you, I expressed opinions and provided

complete and accurate facts as I understood them. The information I provided to you

was in complete candor. Given the above information, if asked to describe the AI

today, I would have a different response. While the FBI review is not complete, it

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1 As reflected in the October 1st document index provided to the Committee, the FBI shared

a draft of the Dillard Review with the Attorney General on September 23, 1999.

appears that the technical and dissemination aspects of the AI, at a minimum, deserve to be questioned and that is what the FBI is now doing. As soon as we resolve

this issue, we will provide you with those details.

I would be pleased to discuss this with you or your staff in any format you choose.

By this letter, I am only intending to amplify and clarify my prior testimony relating to the AI. I am not intending to imply anything about the underlying case involving Wen Ho Lee, the FISA issue or any other issues that have been explored

before your Committee. As you know, those issues depend on varying degrees of information that exists independent of the AI, e.g., information developed pre-1996 or

as a result of the criminal aspects of the current investigation.

Again, thank you for this opportunity. I am available at your convenience.

Respectfully,

NEIL J. GALLAGHER,

Assistant Director,

National Security Division.

U.S. DEPARTMENT OF JUSTICE,

OFFICE OF LEGISLATIVE AFFAIRS,

Washington, DC, October 25, 1999.

Hon. ORRIN G. HATCH,

Chairman, Committee on the Judiciary,

U.S. Senate Washington, DC.

DEAR MR. CHAIRMAN: This is to provide a written response to your letter of October 8, 1999 to the Attorney General concerning matters related to the documents

Attorney General Reno and FBI Director Freeh provided you on October 1st. As you

may know, we have already had several discussions with Committee staff regarding

some of the issues you raise. In addition, we discussed several of the documents and

related issues during a meeting earlier today with Senator Specter and staff for the

majority and minority of both the full Committee and the Subcommittee.

Turning to your letter, the Department of Justice and Bureau made diligent efforts to respond to the Committee’s document requests dated June 4 and June 14,

1999 specifically related to the Wen Ho Lee FISA application. Your October 8th letter suggests that the Department’s August 2 response to your July 22, 1999 document request was incomplete. We look forward to meeting with your staff to clarify

this matter.

We have also located or obtained some additional documents after writing you on

October 1st. These documents include a classified review prepared by Special Agentin-Charge Stephen W. Dillard (Dillard Review) that we received on October 14, 1999

and three slightly different copies of a February 22, 1999 FBI memorandum that

transmitted several documents to the Department’s Internal Security Section, including a document dated January 22, 1999 that is mentioned in the discussion

below.1 We provided copies of the transmittal memorandum to Senator Specter and

the staff during our meeting on October 22, 1999.

After we received the Dillard Review, we promptly asked the appropriate agencies

to review it for release to Congress. We will provide the Dillard Review to the Committee as soon as those agencies complete their review. We will be pleased to discuss any of these documents in meetings with your staff. Please be advised that the

Dillard Review when produced will contain redactions for national security and because it contains restricted access data, it will require a high security clearance for

review.

Neither the Attorney General nor Fran Fragos Townsend were aware of the October 1st documents or those enclosed today when they testified before the Committee

on June 8, 1999. When the Attorney General became aware of the October 1st documents, she promptly directed that they be provided to the Committee because they

are related to issues that arose during the June 8th testimony and in staff briefings.

Pursuant to the request in your letter, set forth below is a chronological explanation

of the Department’s acquisition of the October 1st documents.

On September 8, 1999 Director Freeh provided the September 3, 1999 Albuquerque memo (Tab V in the previously provided October 1 documents) to the Department and asked to meet with the Attorney General to discuss the contents of

the memorandum. That briefing took place on September 14, 1999. Also on September 8th, the Department learned that the September 3rd memorandum from Albuquerque had been the subject of discussion and refinement between Albuquerque

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2Pursuant to the Attorney General’s direction and with the concurrence of Director Freeh, Mr.

Bellows is conducting a complete review of the Department of Justice and FBI’s handling of the

Los Alamos National Laboratories and Wen Ho Lee investigation (Tab BB). He began his review

in May, 1999 and issued a document production request to the FBI on June 7, 1999. Mr. Bellows

had not acquired any of the documents attached to our letter of October 1 prior to the Attorney

General’s testimony. Mr. Bellows had advised the Attorney General that the report of his review

will be completed by January of 2000.

and the National Security Division (NSD) at FBI Headquarters. At the September

14th briefing, the Attorney General was told of the August and October, 1995 Albuquerque documents (Tabs C and D) and the September 1999 interview of Special

Agent Van Magers (Tab V). It is our understanding that Director Freeh had first

learned of the existence of the August and October 1995 documents earlier that day.

On September 15, 1999 the Attorney General asked to review the drafts of the

September 3, 1999 Albuquerque memo. On September 16, the Attorney General was

provided with drafts dated July 9, 1999 and August 26, 1999 (Tabs S and T) along

with transmittal memoranda (Tab W). Separately, on September 16, 1999 the FBI

provided the Attorney General a copy of the Senate Governmental Affairs Committee staff questions (Tab II). The issues raised by the Senate Governmental Affairs Committee staff and other considerations caused Deputy Director Bryant to direct SAC Dillard to review the 1995–1996 period of the Kindred Spirit investigation.

On September 16, after reviewing the drafts of the September 3rd memo, the Attorney General requested copies of the documents referred to therein (i.e., documents dated 11/98, 12/98, 1/99 and 1/22/99) from the FBI. On September 17, 1999,

pursuant to a separate request from the Attorney General, Assistant United States

Attorney Randy Bellows provided copies of an FBI memorandum from Albuquerque

dated November 19, 1998 (Tab P), the January 22, 1999 Albuquerque memorandum

(Tab Q), and a March 4, 1996 FBI routing slip and attached materials (Tab CC) 2

On September 17, 1999, the FBI also provided the Attorney General a copy of the

January 22, 1999 Albuquerque memorandum (Tab Q) and a draft investigative plan

for the reopening of the investigation (Tab X). As discussed above, the FBI provided

the January 22 memorandum to the Internal Security Section on February 22, 1999.

On September 20, 1999 the Attorney General requested a copy of the November

10, 1998 memorandum in the November 19, 1998 document. The FBI provided the

November 10, 1998 document on September 21 (Tab O). On September 24, 1999

pursuant to the Attorney General’s request, we received documents from Mr. Bellows (Tabs A, B, E, F, G, H, I, K, L, N, R). These documents, which we produced

on October 1, 1999, related to the DOE Administrative Inquiry.

On September 22, 1999, the Attorney General asked that the FBI prepare a chronology of its decision to reopen the investigation into the compromise of nuclear

technology. On September 24, 1999, the FBI’s National Security Division provided

a draft chronology (Tab Y). On September 28, 1999 the FBI provided the Attorney

General: two interview reports, one dated September 16 and the other September

21, 1999; and an FBI briefing paper dated July 20, 1995. (Tabs AA, DD, HH). After

the FBI provided these documents, the Office of Intelligence Policy and Review

(OIPR) double checked for related materials. OIPR located the one page review form

and an entry in an electronic log (Tab J and M). On September 29, 1999, again pursuant to the Attorney General’s request, Mr. Bellows provided an FBI memorandum

dated January 29, 1999 regarding the status of the Wen Ho Lee investigation (Tab

GG). Finally, on September 30, 1999, pursuant to the Attorney General’s request,

the FBI provided us two interview reports both dated July 20, 1999. (Tab EE and

FF).

The DOE Administrative Inquiry report dated May 28, 1996 was also provided on

October 1st. (Tab Z). Although the Department of Justice obtained the Administrative Inquiry on May 24, 1999 and the Attorney General referred to it during June

8th testimony, the Administrative Inquiry is a Department of Energy report and we

could not release it to the Committee without DOE’s consent. Because the Department understood that the Committee wanted to review the Administrative Inquiry,

we contacted DOE and obtained its consent to provide the Administrative Inquiry

to the Committee on October 1st and did so on that date.

We will be glad to have senior Justice Department and FBI personnel to further

brief the Committee and Subcommittee’s majority and minority staffs at their convenience on matters pertaining to the Department’s acquisition of these documents.

In addition, we will continue to search for other documents related to the Attorney

General’s testimony and are continuing our efforts to obtain additional information

regarding the time and manner in which various entities within the Department

came to acquire copies of the documents. On a related matter, it is premature to

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consider declassifying the October 1st documents because they directly pertain to

ongoing investigative efforts.

Please do not hesitate to contact me if I may provide you with additional information.

Sincerely,

JON P. JENNINGS,

Principal Deputy Assistant Attorney General.

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DEPARTMENT OF ENERGY,

Washington, DC, January 31, 2000.

Hon. ARLEN SPECTER,

Chairman, Subcommittee on Alleged Chinese Espionage,

Senate Committee on the Judiciary, Washington, DC.

DEAR CHAIRMAN SPECTER: I have reviewed the draft Interim Report of the Judiciary Oversight Subcommittee on Alleged Chinese Espionage that recently was provided to the Office of Counterintelligence. I thank you for the opportunity to provide

comments on this draft.

I strongly disagree with a number of the report’s assertions regarding my involvement with the Kindred Spirit investigation during the September 1998-February

1999 time period. I am particularly disturbed by the report’s conclusion that my decision to interview Mr. Lee was based on the upcoming publication of a congressional report as opposed to sound counterintelligence investigative practice.

I am also concerned about what I believe are inaccuracies regarding the sequence

of events surrounding the DOE polygraph of Mr. Lee in December 1998. I would

like the opportunity to explain my role in the investigation, and believe that until

now I have not been afforded sufficient opportunity to address the serious congressional concerns regarding DOE’s actions. I was first made aware of these concerns

on December 14, 1999, when you met with the Federal Bureau of Investigation

(FBI), Department of Justice, and DOE representatives to discuss the Subcommittee’s Chinese espionage inquiry.

Attached for clarification is a written statement on the sequence of events surrounding the interview of the espionage subject, the DOE polygraph, and the interaction between DOE and the FBI throughout the September 1998-February 1999

time period. Also attached is a copy of a letter dated January 4, 2000 from FBI Assistant Director, Neil J. Gallagher that attempts to clarify some misperceptions

about what actually took place. I hope that these documents will assist the Subcommittee in assessing the management of the Kindred Spirit investigation.

Sincerely,

EDWARD J. CURRAN,

Director, Office of Counterintelligence.

Attachments: (2).

JANUARY, 31, 2000.

I, Edward J. Curran, have been assigned as the Director of the Office of Counterintelligence (OCI) for the Department of Energy (DOE), Washington, DC since April

1, 1998. I was detailed from the Federal Bureau of Investigation (FBI), Washington,

DC to this position by the Director of the FBI, Louis Freeh. At the time of my detail,

I was the Section Chief of the Eurasian Section of the National Security Division,

FBI Headquarters (FBIHQ). My current position was mandated by President Decision Directive/NSC (PDD)–61, signed by President Clinton in February of 1998.

PDD–61 required the FBI to detail a senior counterintelligence officer to DOE to:

initially evaluate DOE’s counterintelligence program; submit recommendations for

improvement; and then serve as the Director of OCI. In order to carry out those responsibilities, PPD–61 gave me the authority to have direct access to the Director

of the FBI, the Director of Central Intelligence, and the Secretary of Energy.

On December 14, 1999, I accompanied General Eugene Habiger, Director of the

DOE’s Office of Security and Emergency Operations, to a briefing before Senator

Arlen Specter, Chairman, Subcommittee on Administration Oversight and the

Courts, Committee on the Judiciary, U.S. Senate. General Habiger informed me

that FBI Director Freeh asked him to attend this briefing because Director Freeh

was going to request Senator Specter to postpone his Committee’s review of the Mr.

Wen Ho Lee espionage matter that was scheduled to begin the next day. Director

Freeh asked General Habiger to attend and explain the potential damage caused

by the missing tapes.

At the conclusion of the briefing, I was asked by Senator Specter and his Chief

Investigator, Mr. Dobie McArdle, why I had denied the FBI Albuqerque charts on

Mr. Wen Ho Lee. Mr. McArdle said that the FBIAQ stated that since I denied the

FBI access to the DOE charts the FBI was working under the assumption that Mr.

Lee had passed the polygraph and the FBI’s investigation was essentially terminated. The FBI said that if they had known he had failed, the FBI would have gone

back to the Department of Justice (DOJ) and requested a resumption investigative

activity. They believe that they would have been authorized coverage with the added

knowledge of a deceptive polygraph. I asked Mr. McArdle where he was getting this

information, he referred to a communication from FBIAQ.

I informed both Senator Specter and Mr. McArdle that I was shocked by this allegation and in my estimation this entire matter had been very closely coordinated

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with the FBI in every aspect. I personally had spoken with the Special Agent in

Charge, Mr. Dave Kitchen, FBIAQ, before, during and after DOE’s interview and

polygraph of Mr. Lee. I was never asked for anything that was not immediately provided to the FBI and I never gave instructions to anyone within DOE to withhold

any information, files or records. I told Senator Specter that on January 22, 1999,

I was told by Mr. David Renzelman, DOE polygraph quality control, that the FBI

requested the polygraph charts of Mr. Lee. I immediately instructed him to provide

the FBI whatever data they needed. Up until that time, I was under the impression

they already had the charts. I recall having a conversation with Mr. Kitchen the

day of the DOE polygraph test, December 23, 1998, in which he said he was very

satisfied with the test. The DOE interview and polygraph of Mr. Lee was never intended to be a substitute for an FBI interview and polygraph. DOE’s primary purpose was to remove Mr. Lee from access to the X Division and hopefully polygraph

him, while the FBI concluded their investigation. DOE personnel were instructed,

by me, that the interview was not to be confrontational and the interview was to

be low keyed so as not to alert him that the FBI was conducting an investigation.

It was always my understanding the FBI would then interview Mr. Lee and request

him to take an FBI polygraph.

Senator Specter stated that this was one of the reasons for having hearings, since

this is one of the issues which needs to be resolved and obviously there is a difference of opinion as to the events of the case.

On December 14, 1999, I called Mr. Neil Gallagher, Assistant Director, National

Security Division (NSD), and expressed my concern about the document referred to

by Mr. McArdle, alleging that I refused to provide polygraph charts to the FBI. I

asked Mr. Gallagher for the dissemination list of the memo. He said he had not previously seen the document, although he had believed it to be of minor importance.

I told him I did not consider it minor since I was being falsely quoted in an official

document, and the document had been disseminated to a Senate Oversight Committee. Mr. Gallagher said he was going to review the matter and if the facts in

the memo were untrue then he would so advise Senator Specter.

On December 14, 1999, I called Mr. Kitchen, FBIAQ, concerning the memorandum. He immediately apologized for the memo, indicating he had not seen it before it was disseminated and he would not have allowed it out of the office. He said

the facts were untrue and there was nothing that FBIAQ had asked for that they

had not received from DOE.

In the attached letter dated January 4, 2000, Mr. Gallagher responded to the

issues I raised concerning the blind memo. Mr. Gallagher states in the letter that

the original blind memo had been provided to Senator Specter’s Committee, in addition to the DOJ and other Congressional Committees. Mr. Gallagher states in the

letter they could find no documentation in FBI files attributing the statements I allegedly made. He continues to state that FBIAQ had asked for the charts but did

not insist on them.

Mr. Gallagher’s memo dated January 4, 2000, states that the FBIAQ communication was prepared by FBIAQ as a result of a telephone conversation between Assistant Special Agent in charge (ASAC), William Lueckenhoff and Deputy Assistant Director, Sheila Horan, NSD, and was intended only to be a ‘‘rough’’ update of the status of the investigation. Mr. Gallagher goes on to state ‘‘as a blind memorandum

it was not intended to capture official witness statements or other evidence.

Every detail of this case was coordinated between DOE and the FBI. I personally

wanted the FBI to do the interview rather than DOE, but they stated that they

were not ready to interview him because they first wanted to interview some neighbors and associates of Mr. Lee. DOE had been asking the FBI to bring this case

to a conclusion since the use of an investigative technique in August. I did not believe I had the luxury of waiting any longer since the investigative activity in August and this was Mr. Lee’s first opportunity to leave the U.S. I was very concerned

as to what he would do and say on his trip to Taiwan and then what he would do

upon his return. Since the FBI was not going to interview Mr. Lee and bring this

case to a conclusion prior to his departure to Taiwan, I made the decision, with the

Secretary’s approval, to remove Mr. Lee from access upon his return from Taiwan

and until the FBI could conclude their investigation through interview and polygraph.

Mr. Lee returned from Taiwan on December 23, 1998. He was interviewed and

removed from access and asked to take a polygraph. The FBI was aware that if Mr.

Lee refused to take a DOE polygraph, his security clearance would have been removed and steps taken to terminate his employment; if Mr. Lee agreed to take the

test and failed, his clearance would be removed and termination proceedings would

be initiated. This activity was completely coordinated with the FBIAQ. On December 21, 1998, a memo was furnished to the Secretary of Energy from me setting

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forth the above scenario. Mr. Lee took the polygraph test and representatives from

FBIAQ were present. I have been told by DOE personnel on the scene that the FBI

agents were provided a complete briefing on the results of the test and were informed of the one question that was very close to being deceptive. They were told

that he had passed. The FBI people asked what was the procedure at this point and

they were told the charts would be submitted for quality control. According to all

the DOE personnel present, the FBI never asked for a copy of the charts or anything else connected with the test and if they had, they would have been given immediate copies. DOE personnel stated that the FBI did not have their polygraph examiner on the scene and no one ever told the FBI, that I said, they could not have

copies of the charts or anything else.

Mr. Gallagher’s letter continues to state that the FBIAQ immediately asked for

the charts at the conclusion of the DOE’s test but did not insist on them. I deny

this is the case based on my discussions with DOE personnel involved in this matter. The first time the FBI asked for the polygraph charts, to my knowledge, was

on January 22, 1999, and they were furnished to the FBI the same day. The FBI

interviewed Mr. Lee on January 17, 1999, and again on January 21, 1999, without

asking him to take an FBI polygraph. However, in their blind memorandum they

stated that they received the charts on January 22, 1999, after making the original

request 30 days before. FBIAQ goes on to state in the blind memorandum that it

wasn’t until February 3, 1999, following a review of the polygraph documentation

sent to FBIHQ, that they became aware that issues were present, and that the polygraph was, in fact, inconclusive. FBIAQ goes on to state, that on February 7, 1999,

FBI personnel from Washington, including polygraph examiners, traveled to Albuquerque to conduct the second polygraph of Mr. Lee. In Mr. Gallagher’s January 4,

2000, letter to me, his last paragraph goes on to state ‘‘that FBIAQ was making inquiries as to the status of the charts, and FBI was concerned with the time factor.

When the FBI was informed that the charts were available they were immediately

obtained and transmitted to FBIHQ and the quality control review conducted.’’ Mr.

Gallagher states, ‘‘upon learning that the FBIHQ Polygraph Unit believed the results to be inconclusive, this was immediately relayed to me by telephone.’’ This scenario portrayed by FBIAQ to Mr. Gallagher is not accurate.

On February 5, 1999, at approximately 3:00 PM, I telephoned Mr. Chuck Middleton at FBIHQ, Section Chief, NS2. I informed Mr. Middleton that I had to make

a decision as to whether Mr. Lee was to be placed back into X Division at Los Alamos. The original agreement was to remove him from access for 30 days, in order

to allow the FBI to conclude their investigation. I had extended that time for two

additional weeks and I now needed to make a decision, as to where he would be

placed. I asked Mr. Middleton if there was anything the FBI was working on which

might affect my decision. Mr. Middleton reminded me that the decision was mine

to make. I thanked him and assured him I was well aware of that, but asked if

there was anything I should know that would impact my decision. He claimed that

he knew nothing that would impact my decision. I immediately informed the DOE

Operations Office in Albuquerque that as of Monday morning, Mr. Lee could return

to X Division. At approximately 4:00 PM, the same day, Mr. Middleton called me

and told me that he just found out that FBIHQ polygraph unit had just reviewed

the DOE polygraph charts and found them to be deceptive, not inconclusive, as reported in Mr. Gallagher’s letter and also reported in the blind memorandum. Mr.

Gallagher’s letter stated that I was immediately informed of this inconclusive decision received on February 3, 1999. For the record, I initiated the phone call to

FBIHQ on February 5, 1999, and was only informed then. I immediately told Mr.

Middleton that I was sending our polygraph personnel to Los Alamos to have Mr.

Lee retested on the morning of February 8, 1999, before Mr. Lee would be allowed

back to X Division. I was informed either that day or over the weekend by Mr. Middleton, that the FBI would polygraph Mr. Lee, Monday morning and DOE should

stand down. I was subsequently informed by the FBI that Mr. Lee failed the FBI

polygraph on February 10, 1999, but that they required more time with Mr. Lee before DOE terminated his employment. I asked them to make that request in writing, which they did in an FBI communication dated February 23, 1999.

The recommendation to interview Mr. Lee and remove him from access pending

the completion of the FBI investigation was mine and approved by Secretary Richardson. My decision was based on sound fundamental counterintelligence reasons,

which I am willing to reiterate and clarify. At no time did I make this decision

based on any political issues nor did anyone ever suggest that I do so. This case

was completely coordinated by me with the Special Agent in Charge of FBIAQ, Mr.

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David Kitchen. He completely agreed with my decision and as of January 28, 2000,

stated he is willing to state that to anyone, however, no one has ever asked him.

EDWARD J. CURRAN,

Director, Office of Counterintelligence.

DEPARTMENT OF JUSTICE,

FEDERAL BUREAU OF INVESTIGATION,

Washington, DC, January 4, 2000.

Mr. EDWARD J. CURRAN,

Director, Office of Counterintelligence,

Department of Energy, Washington, DC.

DEAR ED: I have been provided a copy of the undated FBI blind memorandum

captioned ‘‘KINDRED SPIRIT; LEE, WEN HO; LEE, SYLVIA; FCI–PRC.’’ As we

discussed telephonically, this document is in the possession of DOJ and I understand has been provided to one or more Congressional Committees. Also as we discussed, I told you I would cause an in-depth review to be made in the FBI and if

appropriate, correct any misperceptions this document creates when viewed out of

content. Having stated that, it is the purpose of this letter to (1) put that document

into its proper context and (2) correct at least what I understand from you are two

apparent misinterpretations of this document.

With respect to the document, I have been advised that it was created by FBI Albuquerque as a result of a telephonic discussion between the Assistant Special

Agent in Charge and a Deputy Assistant Director of the National Security Division.

It was intended only to be a ‘‘rough’’ update of the status of the investigation prepared by FBI Albuquerque. It was not intended to be further disseminated or to reflect all of the facts about any aspect of the investigation. As a ‘‘blind memorandum’’

it also is not intended to capture official witness statements or other evidence. In

common parlance, it is the equivalent of a ‘‘note to the file.’’ From what you described, it underscores the difficulty associated with utilizing any one document to

characterize a long term investigation or for that matter a critical aspect of the investigation.

With respect to the details of this document, I would like to comment on two aspects in particular:

(1.) In the first paragraph there are reported details of the polygraph of Wen Ho

Lee on December 23, 1998. These facts are accurate. However, as we discussed, your

impression was that this paragraph suggested that there was not the high level of

coordination between the FBI and DOE regarding this polygraph that you understood existed. To the contrary, from everything I know, this polygraph was coordinated appropriately. FBI Albuquerque agreed in advance with its role in a standby capacity as this was at the time a DOE administrative matter. My recent review

did not identify any coordination issue or conflict with respect to the conduct of the

polygraph.

(2.) The second paragraph reports on the status of an access to the polygraph

charts (for subsequent FBIHQ Polygraph Unit quality control review). It also attributes a DOE response to you by name.

With respect to the attribution to you by name, I can find no FBI employee that

can confirm such a statement. It may be that someone in DOE used your name, but

even that is not certain. Any indication that you personally made a statement preventing the FBI access to the polygraph charts is inaccurate.

With respect to the remaining facts in this paragraph as to access to the charts

they are accurate. However, they can in hindsight easily be taken out of context.

When we were informed on December 23, 1998, Wen Ho Lee passed the polygraph,

immediate access to the charts was requested but not insisted by the FBI. We were

informed of the DOE internal handling procedures. At the time, in part because we

were under the impression he had passed the polygraph, we waited for the charts

to be provided as we understood they would be. FBI Albuquerque did make inquiries as to the availability of these charts and were concerned with the time factor

involved. However, I can find no formal request made of DOE to expedite the process. When we were informed of the charts availability, in Albuquerque, they were

immediately obtained and transmitted to FBIHQ, and the quality control review

conducted. Upon learning that the FBIHQ Polygraph Unit believed the results to

be inconclusive, this was immediately relayed to you telephonically.

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I hope these comments place in proper context the blind memorandum and eliminates any misunderstanding on the two aspects noted above.

Sincerely yours,

NEIL J. GALLAGHER,

Assistant Director,

National Security Division.

DEFENSE SECURITY SERVICE,

Alexandria, VA, February 14, 2000.

Hon. ARLEN SPECTER,

Hon. ROBERT G. TORRICELLI,

Attention: Carlton Hoskins, Committee on the Judiciary, U.S. Senate, Washington,

DC.

DEAR SENATOR SPECTER: This letter is in response to your February 10, 2000 letter sent as a follow-on to the February 8, 2000 telephonic request made by Mr.

Carlton Hoskins, on behalf of the Judiciary Committee, to Mr. William Norris, of

the Department of Defense Polygraph Institute (DoDPI). These requests were for

the opinion rendered by DoDPI on the results of the polygraph examination performed by the Department of Energy (DOE) on Mr. Wen H. Lee on December 23,

1998. Attached is a copy of the Memorandum for the Record outlining the initial

request made by DOE and the opinion rendered by the DoDPI staff.

If you have any questions, please contact a staff member of the Office of Congressional and Public Affairs Office at (703) 325–9471.

CHARLES J. CUNNINGHAM, Jr.,

Director.

Attachment.

28 JAN 1999

MEMORANDUM FOR RECORD

Subject: Critique of DOE PDD Examination conducted by Wolfgang Vinskey on 23

Dec 1998.

Examinee: Lee, Wen H.

1. On 27 Jan 1999 the QAP received a PDD examination from US Department

of Energy requesting that QAP review the aforementioned exam and related documents for an additional opinion.

2. A quality control review was conducted by SA Gary Light, SA George Chigi,

SA David Miller and SA Donald Dutton on 27 Jan 1999. Each DODPI examiner reviewed the charts utilizing a seven position scale. In each instance, the QC review

by all DODPI personnel was opined to be No Opinion.

3. On 28 Jan 1999 SA Light and SA Chigi engaged in a telephone conversation

with Mr. John Mata, Program Manager for DOE in which he was informed of the

outcome by DODPI personnel. Mr. Mata was informed that DODPI determined that

results of the examination to be No Opinion. Mr. Mata then inquired as to what

we thought should be done at this point, and he was informed by SA Light that

the examinee should be re-examined due to the inconclusive nature of the examination. Mr. Mata was asked if he wanted an official written record of the QC review

by DODPI and he indicated that he did not desire a written report, stating that our

verbal report was sufficient.

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC, September 18, 2000.

Hon. JANET RENO,

Attorney General,

Washington, DC.

DEAR ATTORNEY GENERAL RENO: I am writing to request the Senate Judiciary

Subcommittee on Administrative Oversight and the Courts Task Force on the Department of Justice Oversight be provided a copy of the following Wen Ho Lee documents:

(1) The complete FBI case file, including everything that was previously segregated as being related to the criminal case;

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(2) Notes and memoranda prepared for any meetings related to the case, including

but not limited to the meeting at the White House in December 1999 (just prior to

the indictment);

(3) All correspondence between the FBI/DoJ and the DoE regarding the classification level of the information Dr. Lee downloaded;

(4) Every document or record submitted by the government in the case;

(5) Every document or record submitted by Dr. Lee’s lawyers to the government,

including but not limited to the December 1999 offer to make Dr. Lee available to

explain what happened to the tapes and the final sworn statement that Dr. Lee provide as part of the plea agreement, and the government’s response to any such correspondence.

Sincerely,

ARLEN SPECTER.

DEPARTMENT OF JUSTICE,

OFFICE OF LEGISLATIVE AFFAIRS,

Washington, DC, January 20, 2001.

Hon. PATRICK LEAHY, Chairman,

Hon. ORRIN HATCH, Ranking Member,

Committee on the Judiciary.

Hon. BOB GRAHAM, Chairman,

Hon. RICHARD SHELBY, Ranking Member,

Select Committee on Intelligence,

U.S. Senate, Washington, DC.

DEAR CHAIRMEN LEAHY AND GRAHAM AND SENATORS HATCH AND SHELBY: The Department of Justice appreciated the opportunity to testify on September 26, 2000,

before the joint hearing of the Senate Judiciary Committee and Senate Select Committee on Intelligence regarding the investigation and prosecution of Dr. Wen Ho

Lee. During that hearing and the follow-up hearing the next day before the Department of Justice Oversight Task Force of the Judiciary Committee’s Administrative

Oversight and the Courts Subcommittee, a number of questions were raised concerning the conditions of Dr. Lee’s confinement.

This letter provides further information on this matter, which has been provided

to me by persons within the Department involved in the case. It is important to remember the context in which we are dealing—a set of rules governing incarceration

that are intended to cover the prison population at large, not an individual prisoner

on a case-by-case basis.

The attention focused on the specifics of Dr. Lee’s confinement has underscored

a number of public policy concerns, the resolution of which involve a careful balancing of interests. For example, given the physical stature of this particular prisoner and the likely low risk he presented of causing physical harm to others, using

restraints on him while he was outside of his cell seemed unnecessary to some. But,

using restraints on him in the manner described below flows directly from a policy

that sets bright line rules that apply to all prisoners under defined circumstances.

These bright line rules are, in the Department’s view, better than an alternative

that would require detention facility personnel to make ad hoc decisions in each individual prisoner’s case. A rule allowing such discretion would invite both favoritism

and abuse.

With these overarching policy considerations in mind, the following provides additional details about the circumstances of Dr. Lee’s confinement. There is no federal

detention facility in New Mexico. Dr. Lee therefore was placed in the Santa Fe

County (New Mexico) Detention Facility. This facility has a contract with the federal government to house federal prisoners and is about an hour’s drive from Albuquerque. In addition, it was the joint and firm belief of the federal agencies involved

that the gravity of the national security issues at stake required that until Dr. Lee’s

case was resolved he could not be allowed to communicate freely with others. Thus,

the facility in which he was held had to be able to provide conditions of detention

that would prevent such communications. The Santa Fe facility was able to provide

confinement with that restriction under its administrative segregation policies. The

facility also provides voluntary segregation for some inmates if they request it for

their own protection, as in the case of a cooperating witness. However, the facility’s

voluntary segregation regime was not appropriate for Dr. Lee because it would have

allowed him to make unmonitored phone calls and to have unmonitored conversations with other inmates.

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While housed in the Santa Fe County Detention Facility, Dr. Lee was subject to

all of that facility’s other regulations for all prisoners in administrative segregation

in addition to the ban on unmonitored communications. One of those requirements

is that prisoners in administrative segregation must be in ‘‘full restraints’’ (handcuffs, waist chains, and leg irons) whenever they are outside of their cells within

the facility, including during exercise periods. Dr. Lee was not in restraints while

in his cell. In July 2000, after the issue was raised by Dr. Lee’s attorneys, the restraints policy was modified uniquely for Dr. Lee so that he, unlike others in administrative segregation, could exercise without restraints.

Transportation of Dr. Lee from the detention facility to the courthouse for court

appearances or meetings with his attorneys was conducted by the United States

Marshals Service. When Dr. Lee left the detention facility for these reasons, he was

delivered into the custody of the Marshals Service by detention facility personnel.

The detention facility placed Dr. Lee in full restraints during these custody transfers, as is the case for all prisoners. Similarly, Marshals Service policies require that

all prisoners, including Dr. Lee, be fully restrained during transport. The Marshals

Service’s ‘‘full restraints’’ policy, like that of the Santa Fe detention facility, requires

use of handcuffs, waist chains, and leg irons.

Upon arrival at the federal courthouse in Albuquerque, Dr. Lee was placed in a

holding area cell administered by the Marshals Service, at which time all restraints

were removed. When Dr. Lee was moved form the holding cell to the suite of offices

on the third floor of the courthouse that had been specially modified by the Department of Energy for him and his attorneys, he again was placed in full restraints.

Once in the office suite, all restraints except leg irons were removed. Dr. Lee’s counsel did not object to this security procedure. Upon delivery of Dr. Lee to the office

suite, his attorneys closed the self-locking door and a Deputy Marshal stayed outside the room while Dr. Lee conferred privately with his attorneys.

At the conclusion of the workday, Dr. Lee’s attorneys would open the office suite’s

locked door. Dr. Lee would again be placed in full restraints and transported within

the courthouse to the Marshals’ holding area. If he was not taken from the courthouse immediately, Dr. Lee was placed back in a cell and all restraints were removed. When the Marshals Service was ready to transport him back to Santa Fe

County Detention Center, Dr. Lee would be placed in full restraints once more for

the ride back to Santa Fe. On arrival at the detention facility, Santa Fe County personnel would take custody of Dr. Lee and transport him within the detention facility

back to his cell, at which time all restraints again were removed.

If Dr. Lee had a court hearing, he was first brought to his attorneys’ suite at the

courthouse, under the procedures described above. After meeting with this attorneys, the leg irons would be removed and he would be escorted, wearing no restraints of any kind, to the court room. These procedures were then reversed after

the court hearing: Dr. Lee would go back to his attorneys’ suite, the leg irons would

be replaced; and he would meet privately with counsel.

The above facts, provided by those within the Department who are knowledgeable

about the policies involved and this particular matter, reflect a situation where

there is a basic policy for detention and restraint and a deviation from that policy

for unique reasons. The questions to be addressed include whether the basic policy

was appropriate in this matter and, if so, whether the exception made to it was implemented properly. We believe the overarching question is whether there is a fair

system in place so that prisoners across the board are treated fairly, not arbitrarily.

This concerns us all, and we believe that the Department has tried to do its best

to institute the best policies and practices that are the most humane, given the complexities of running detention institutions, ensuring safety, and treating prisoners

fairly. If you have additional questions on this matter or if I may be of further assistance, please let me know.

Sincerely,

ROBERT RABEN,

Assistant Attorney General.

DEPARTMENT OF JUSTICE,

OFFICE OF LEGISLATIVE AFFAIRS,

Washington, DC January 19, 2001.

Hon. ORRIN HATCH,

Ranking Member, Committee on the Judiciary, U.S. Senate, Washington, DC.

DEAR SENATOR HATCH: This letter is to follow up on my letters to Senator Leahy

and to you on May 5, 2000. That letter responded to the Judiciary Committee’s Resolution authorized by Committee on November 17, 1999 and to Senator Specter’s folVerDate 11-MAY-2000 13:22 Nov 01, 2001 Jkt 074193 PO 00000 Frm 00272 Fmt 6601 Sfmt 6621 E:\HR\OC\A193.XXX pfrm04 PsN: A193
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low-up letter of April 14, 2000, which requested records relating the Department’s

input into the decision to grant waivers to Loral Space and Communications Ltd.

and the Hughes Electronics Corporation to launch satellites from Chinese rockets.

Although the Department on May 5 and on May 8, 2000 produced documents to the

Committee, the Committee nevertheless issued a subpoena on May 12, 2000.

In my May 5 letter, I informed you that we had identified some documents in

these files that were generated by other agencies and that we needed to consult

with those agencies for a decision on release. We notified each agency that these

documents were the subject of the Committee’s subpoena. This is to inform you of

the status of other agencies’ responses to our notification efforts. The Defense Department and National Security Agency have agreed that their documents may be

released to the committee; copies are enclosed. The State Department has indicated

to us that its documents may be released with redactions; we have not yet received

their redacted copies. The Commerce Department and Office of the United States

Trade Representative have taken the position that their documents are outside the

scope of the Committee’s subpoena. The National Security Council did not respond

to requests for a decision on release of documents originating there.

In addition, we have identified a small group of documents from FBI files that

require review by the Criminal Division for pending case and grand jury information. We will notify you as soon as that review is complete. An identical letter has

been sent to the Committee’s Chairman, Senator Leahy.

Sincerely,

ROBERT RABEN,

Assistant Attorney General.

JANUARY 22, 2001.

To: Senator Specter

From: Dobie

Subject: Response from DOJ

I have attached two letters from DoJ: the first explains the detention of Dr. Wen

Ho Lee, and the second responds to the subcommittee’s request for documents on

the DOJ’s input on the Loral/Hughes waiver. The key points of each letter are provided below, but I have attached the letters in case you wanted to read them in full.

Robert Raben letter on Dr. Wen Ho Lee’s confinement—20 January 2001

Responds to inquiries raised at the September 26 and 27, 2000 hearings on the

Wen Ho Lee case.

Dr. Lee was held in the Santa Fe County (New Mexico) Detention Facility because

there is no federal detention facility in New Mexico.

The ‘‘administrative segregation’’ policies of the detention facility—which included

‘‘full restraints’’ (Handcuffs, waist chains, and leg irons)—were the same as applied

to any other inmate in administrative segregation, with two exceptions: (1) A ban

on communications was imposed on Dr. Lee that was not imposed on others in administrative segregation; and (2) After July 2000, Dr. Lee was allowed to exercise

without restraints, unlike others in administrative segregation.

Dr. Lee was transported by the U.S. Marshals Service, following standard procedures, which included full restraints.

When Dr. Lee was placed in the holding cell at the federal courthouse, restraints

were removed.

While Dr. Lee met with his attorney, all restraints except leg irons were removed.

Robert Raben letter on Loral and Hughes documents—19 January 2001

Responds to several requests (November 17, 1999 resolution; Senator Specter’s

letter of April 14, 2000; and the Committee’s subpoena of May 12, 2000).

Provides an update on ‘‘third agency’’ documents related to DoJ’s input on the

Loral/Hughes waiver in 1998.

DoD and NSA have agreed to provide documents, but we don’t have them yet.

State Department will provide documents, but is still redacting them.

Commerce and USTR said their documents are outside the scope of the subpoena.

NSC did not respond to the request for documents.

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[From the National Review, July 31, 2000]

ENERGY LOSS: WHAT HAPPENED TO THE NATION’S SECRETS

(By Notra Trulock)

New revelations about security lapses at Los Alamos National Laboratory underscore the Clinton administration’s continuing failure to safeguard America’s nuclear

secrets. For more than a year, administration officials have assured the nation that

these secrets were secure: Energy secretary Bill Richardson and his political appointees were vigorously implementing new policies and procedures, and the lax security arrangements of the past would not longer be tolerated. The problem is fixed,

so let’s put this behind us and move on, high-ranking Department of Energy (DOE)

officials urged.

But the new security scandals prove that these assertions were—in the succinct

phrasing of a recent congressional report on DOE counterintelligence—‘‘nonsense.’’

Recent reports from inside the DOE indicate that management has interfered in

security self-assessments at DOE facilities in New Mexico and, at another DOE lab,

permitted sales of computer equipment containing classified nuclear-weapons information to China. Just what is going on inside the DOE complex? Can all of this

be explained away as mere incompetence?

In truth, the recent scandals were utterly predictable. While Secretary Richardson

probably has good intentions, he has entrusted the implementation of his new policies to many of the same Clinton administration political appointees responsible for

much of the mess in the first place. Congress is setting great store in the establishment of a new ‘‘semiautonomous’’ entity inside DOE: the National Nuclear Security

Administration, headed by Gen. John Gordon. Gordon has the credentials and experience to do the job, but he will be saddled with many of the same personnel who

have resisted all efforts to reform the agency. Officials from within the DOE Office

of the Secretary handpicked his staff for him; these officials have repeatedly chosen

‘‘science’’ over security, as if these were somehow incompatible.

How did we get here? My intent is to provide some background and context for

understanding the mess within DOE and its national laboratory complex. This is

a tale of cover-ups, complacency, bungling, and outright dishonesty. I watched as

senior DOE officials repeatedly lied under oath during congressional testimony.

Lurking in the background, of course, were the Chinese fundraising allegations and

investigations of the transfer of missile-guidance technology and supercomputers to

China. I never saw any direct evidence of a linkage between fundraising and these

scandals. But the facts—that the Chinese were spying, and that other foreign intelligence services were feasting on the DOE labs—are undeniable. The consequences

of the loss of nuclear secrets, technological know-how, and classified information

during this period could be devastating to our national security.

THE CHINESE SPY THREAT

Our first indications that the Chinese had penetrated our nuclear-weapons labs

came in early 1995. We gradually became aware of a broad Chinese intelligence assault on the labs, one that had been underway for at least 15 years. Key officials

in the Clinton White House were alerted to our findings in the summer of 1995,

but for the next two years their response was, at best, feeble. In May 1999, the Cox

Committee report finally told the world about China’s success against U.S. nuclear

secrets, but, by that point, the damage was done.

The administration’s response was to ‘‘shoot the messenger.’’ They sought to undermine the credibility of our warnings of Chinese espionage—and in the process,

they drowned out our warnings of long-standing security vulnerabilities and counterintelligence shortfalls.

As DOE’s director of intelligence, I bore the brunt of many of these attacks; I was

demoted in 1998 and forced out of the department in 1999. My successor told me

that I had single-handedly ‘‘destroyed DOE,’’ and that I was a pariah in the department. I soon read in the Washington Post and elsewhere that I was a ‘‘dangerous

demagogue,’’ a ‘‘great impostor,’’ ‘‘obsessed,’’ and even that I resembled Star Trek’s

Captain Kirk. (I never did figure out whether that was a compliment or a criticism.)

Reporters, citing ‘‘anonymous’’ sources, accused me of unfairly singling out one man,

Wen Ho Lee, as the culprit in the case. Racism and xenophobia were imagined in

media accounts to explain the events of the past four years. This was pretty heavy

stuff for someone who has spent most of his career trying to stay out of the public

eye; but it has become routine treatment for whistle-blowers in this administration.

I was not alone; other DOE security officials were subjected to equal or worse treatment at the hands of the Clinton political appointees within the department.

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I was director of intelligence from 1994 to 1998; in 1995, I also became director

of counterintelligence (CI) at the department. I was thus responsible for the management of all intelligence and CI activities within the department and at the DOE

laboratories. When I took over, I found the CI program in total disarray. Despite

numerous espionage attacks on the labs—dating back to the Manhattan Project in

the 1940s—CI was a fairly new program at DOE. The Bush administration, recognizing the threat to the labs, had done a number of important reviews and began

to implement a viable CI program. The program faltered, however, because it commanded little respect from lab scientists and DOE managers. The arrival of the

Clinton team in 1993 stopped the program in its tracks. FBI agents on loan to DOE

were drive out of the department, and security in general received little attention

from the new appointees. Funding was reduced, hiring was frozen, and personnel

slots were cut.

Meanwhile, the labs were opening up at an alarming rate. Visits from, and exchanges with, foreign visitors—particularly those from such sensitive countries as

China and Russia—were encouraged, and areas of the labs were opened up to facilitate the burgeoning presence of these visitors. These trends had started late in the

Bush administration, but the new team relaxed even further the security rules governing such visits. The influx of foreign visitors quickly outstripped the ability of

the CI team at the labs to keep up with it. Lab managers considered CI mostly a

nuisance, in any case, and Washington’s new emphasis on ‘‘openness’’ provided the

excuse to further reduce CI funding and staff. The Lawrence Livermore lab had

(and has) a good CI program, staffed with experienced CI professionals, but lab

management was steadily reducing its funding and trimming its staff.

Counterintelligence at Los Alamos was widely considered a joke within both the

DOE complex and the CI community. Funding for CI was in a steep decline, and

the CI staff there was inexperienced and inept. Later reports documented the bungled management of the Lee case by the Los Alamos CI staff; CI officials were also

complicit in the relaxation of safeguards on foreign visitors. Washington had been

signaling, through its decisions on budgets and programs, that CI was largely a

waste of time and money; this message found a very receptive audience at the labs.

It was an ideal climate for espionage—under the guise of scientific exchanges and

visits.

China’s espionage objectives against the DOE labs were clear: Nuclear deterrence

is a cornerstone of Chinese strategic planning. China has opted for a nuclear force

that could survive a nuclear attack and retaliate with enough weapons to inflict

great damage on the attacker. They have not sought a large missile inventory similar to that of the U.S. or Russia; they have calculated, instead, that a survivable

capability would deter the U.S. or Russia from using force to thwart Chinese regional objectives—vis-a-vis Taiwan, for example.

The keys to such a survivable nuclear force were new mobile missiles and the development of smaller, lighter, and more efficient warheads. The current Chinese

ICBM force is roughly similar to that fielded by the U.S. in the 1960s—heavy, inaccurate, and with slow reaction times in the event of a crisis. The Cox Committee

report documented how the Chinese obtained the crucial technological know-how to

meet these objectives from the U.S.—through espionage and misguided technology

transfers.

China fixed on the U.S. W–88 nuclear warhead, designed at Los Alamos, as the

benchmark to guide its own warhead developments. China’s selection of the W–88—

hailed as the most modern nuclear warhead in the world—was initially surprising:

The technical sophistication of the warhead seemed far beyond China’s grasp. But

the Chinese succeeded; by stealing a proven road map from the U.S. to guide their

efforts, they avoided the expensive and time-consuming scientific blind alleys the

U.S. had experienced before perfecting the technology.

We don’t know for sure when the Chinese assault on U.S. nuclear secrets began.

The initial exchange of scientists between China and the U.S. began late in the

Carter administration. By the early 1980s, our scientists were already expressing

concern about the depth of Chinese knowledge about U.S. nuclear-weapons developments and scientific trends. Lab apologists and others have asserted that much of

China’s knowledge came from the proliferation of nuclear information in the public

domain—but in fact, Chinese scientists were asking detailed and well-informed

questions about classified U.S. nuclear programs, and their command of detail did

not come from reading Aviation Week & Space Technology. Surprisingly, however,

until the mid 1990s, no one questioned the expanded interactions with the Chinese.

For reasons that remain classified, by 1995 DOE intelligence officers and lab experts were suspecting the possible acquisition of W–88 information by the Chinese.

As our deliberations continued, the CIA alerted us to the existence of a Chinese document containing very detailed information about the W–88 warhead. The docuVerDate 11-MAY-2000 13:22 Nov 01, 2001 Jkt 074193 PO 00000 Frm 00297 Fmt 6601 Sfmt 6621 E:\HR\OC\A193.XXX pfrm04 PsN: A193
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ment, now known as the ‘‘walk-in’’ document, has been the subject of much speculation; DOE officials, among others, have spread disinformation about this document

in an attempt to discredit this important clue to Chinese espionage successes. The

document did provide key evidence of Chinese acquisitions not just of the W–88, but

of nearly all other U.S. missile warheads. There was (and is) considerable additional

evidence, still classified, which corroborates our conclusion of Chinese nuclear espionage. The U.S. Intelligence Community Damage Assessment, completed in 1999,

largely validated our conclusions.

THE ADMINISTRATION RESPONDS: AN OSTRICH STRATEGY

Many observers have minimized the importance of Chinese espionage, underscoring another conclusion of the damage assessment: ‘‘To date, the aggressive Chinese collection effort has not resulted in any apparent modernization of their deployed strategic force or any new nuclear weapons deployment.’’ But no one had

ever claimed otherwise; our focus was on the contribution U.S. nuclear secrets

would make to future Chinese developments. They now have the technology; what

they do with it will become clear over the next ten years.

Critics have also contended that even if the Chinese had stolen W–88 information,

they could not actually manufacture such warheads. Such assertions were heard

even from members of the intelligence community, mostly junior intelligence analysts lacking hands-on experience in developing nuclear weapons. Our lab experts,

on the other hand, believed that any country with a modern aerospace industry or

manufacturing infrastructure capable of producing precision munitions could also

assemble such warheads. (CIA intelligence specialists testified before Congress that

China would be unable to develop the ‘‘exotic materials’’ necessary for the W–88

warheads. When asked to give some examples of such materials, the specialists had

to admit that they were clueless about the actual components of the W–88.)

We repeatedly warned administration officials about China’s intelligence objectives and its aggressive attack on the labs. By mid 1997, we were able to forecast

Chinese targets and objectives, particularly in the area of nuclear-weapons codes,

simulations, and databases. Not once were our warnings heeded; sadly, we subsequently learned that our nuclear secrets had been placed on unclassified computer

systems at the labs that were highly vulnerable to outside computer attacks. Such

attacks were occurring at an alarming rate. It was not until 1999 that FBI computer

forensic experts uncovered the magnitude of the potential loss of our nuclear secrets

through computer attacks.

The administration had been very slow in responding to our warnings. The FBI’s

prosecution of the espionage case, formally underway since mid 1996, had been dilatory at best. Months went by with little or no FBI action; more than a year passed

before the FBI even attempted to obtain technical coverage of the key suspect in

the case. What the FBI did with the list of eleven other potential suspects provided

to them by DOE in 1996 remains a mystery. We have since learned that the FBI

missed numerous opportunities for breakthroughs in the case, largely through neglect and ineptitude.

Our first encounters with White House officials came in mid 1995, when DOE informed White House chief of staff Leon Panetta and CIA director John Deutch. DOE

also had an obligation to inform Congress’s intelligence committee in a timely fashion; by the spring of 1996, however more than a year after our initial findings we

still had not made the trip to Capitol Hill. Deutch had pledged to handle this matter, but we had good reason to believe that he did not follow through. En route to

Capitol Hill, we met with Sandy Berger, the President’s deputy national security adviser. This meeting took place in April 1996 on a Saturday morning in the White

House situation room. DOE and CIA officials met with Berger and another NSC

staff member. Berger was told of our conclusions about the scope and magnitude

of Chinese nuclear espionage and the DOE lab vulnerabilities that enhanced the

Chinese prospects for success; Berger approved our plans to brief Congress. There

was another briefing, that summer, for the NSC’s Robert Bell; we also met with Vice

President Gore’s national security adviser on the same topic. There was little other

contact or follow-up with the White House in 1996. That summer, we completed our

obligations to notify Congress.

Despite a subsequent 1997 meeting with Berger, who had since been elevated to

national security adviser, and a flurry of activity within the administration intended

to finally initiate security reforms at DOE, nearly three years passed before we visited Capitol Hill again. Twice in 1998, DOE blocked efforts to transmit information

to Congress regarding new developments in Chinese espionage. The only rationale

offered was that ‘‘Congress only wanted to hurt the president on his China policy.’’

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Meanwhile, DOE and the administration studied the issue to death. Most of the

changes that DOE and lab officials are boasting about today were first proposed in

1996 and 1997, but fiercely resisted by lab managers and DOE officials. Even a

Presidential Decision Directive, issued in 1998, mandating CI and security reforms

met stiff resistance. More than a year passed before any concrete measures were

taken, and the president’s own Foreign Intelligence Advisory Board concluded in

1999 that DOE’s response to even this presidential mandate was ‘‘gruding and belated.’’

The recent scandals show that the fault line between science and security within

the labs has not been overcome. ‘‘Lab culture’’ is often cited as a serious threat to

security, but this is little more than a convenience excuse for DOE incompetence

and management complicity. In truth, the ‘‘culture’’ takes its cues from DOE headquarters, and in recent years these cues have emphasized ‘‘openness,’’ interaction

with nuclear scientists from Russia, China, India, and other sensitive countries, and

the presence of such scientists in large numbers at our national labs (even—indeed

especially—those entrusted with the design of our nuclear warheads).

Another threat arises from DOE’s permission of unfettered travel by our scientists

to sensitive countries. The security incidents associated with such travel are only

now becoming known to the public, but the potential for espionage and the compromise of our most crucial secrets is staggering. In their travels, our scientists have

had their laptop computers searched, briefcases rifled, and telephone conversations

monitored; foreign intelligence services routinely seek to entrap the scientists. DOE

officials and the administration have simply looked the other way, and have valued

continued access to foreign scientists above security of the risks.

This, then, has been the atmosphere fostered by DOE within our national labs

for much of the 1990s. Arrogance, complacency, disregard for the simplest counterintelligence safeguards, and a stubborn disbelief in the continuing existence of foreign intelligence threats have all combined to make our national labs a ripe target

for espionage. Clearly, Secretary Richardson’s reforms and efforts of the past year

have fallen short of his guarantee that our nuclear secrets are now safe.

The fact is, we have yet to come to grips with espionage at our labs. These labs

will continue to maintain and develop knowledge, information, and technology that

are highly prized by foreign intelligence services. The attacks will continue, and the

cyber capabilities of China, Russia, and others only compound the threat. DOE’s response to the peril has, thus far, been pitiful. Moreover, a serious damage assessment has yet to be performed to measure the true extent of potential future threats.

Who in this administration has even started to think about the implications of a

technologically sophisticated opponent gaining access to hard information on U.S.

warhead vulnerabilities? Undoing the damage to our nuclear-weapons policy and

management will be one of the many challenges confronting the next administration.

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