This CRS Report discusses China’s suspected acquisition of U.S. nuclear weapon secrets, including that on the W88, the newest U.S. nuclear warhead. This serious controversy became public in early 1999 and raised policy issues about whether U.S. security was further threatened by China’s suspected use of U.S. nuclear weapon secrets in its development of nuclear forces, as well as whether the Administration’s response to the security problems was effective or mishandled and whether it fairly used or abused its investigative and prosecuting authority. The Clinton Administration acknowledged that improved security was needed at the weapons labs but said that it took actions in response to indications in 1995 that China may have obtained U.S. nuclear weapon secrets. Critics in Congress and elsewhere argued that the Administration was slow to respond to security concerns, mishandled the too narrow investigation, downplayed information potentially unfavorable to China and the labs, and failed to notify Congress fully.
On April 7, 1999, President Clinton gave his assurance that partly “because of our engagement, China has, at best, only marginally increased its deployed nuclear threat in the last 15 years” and that the strategic balance with China “remains overwhelmingly in our favor.” On April 21, 1999, Director of Central Intelligence (DCI) George Tenet, reported the Intelligence Community’s damage assessment. It confirmed that “China obtained by espionage classified U.S. nuclear weapons information that probably accelerated its program to develop future nuclear weapons.” It also revealed that China obtained information on “several” U.S. nuclear reentry vehicles, including the Trident II submarine-launched missile that delivers the W88 nuclear warhead as well as “a variety of” design concepts and weaponization features, including those of the neutron bomb.
On May 25, 1999, the House’s Cox Committee reported that China stole classified information on the W88 and six other U.S. nuclear warheads. On June 15, 1999, the President’s Foreign Intelligence Advisory Board (PFIAB) called the Department of Energy a “dysfunctional bureaucracy” and urged the creation of a semi-autonomous or independent agency to oversee nuclear weapons. In September 1999, Congress passed the FY2000 National Defense Authorization Act to create a National Nuclear Security Administration (NNSA) within DOE on March 1, 2000.
As one result of the W-88 case, the FBI investigated a Taiwan-born U.S. scientist at the Los Alamos lab, Wen Ho Lee. He was never charged with espionage. In December 1999, the Justice Department indicted Lee on 59 felony counts for mishandling nuclear weapons information (not classified at the time). Lee was jailed without bail until a plea agreement on September 13, 2000, when he pleaded guilty to one count of mishandling national defense information (for making copies of his computer files). The judge apologized to Lee. Meanwhile, in April 1999, the FBI expanded its counterintelligence investigation beyond the focus on Los Alamos, and in 2000, the probe shifted to missile secrets and to the Defense Department. In April 2003, an ex-FBI agent, James Smith, and his informant, Katrina Leung, were arrested for allegedly mishandling national defense information related to China.
This CRS Report discusses China's suspected acquisition of U.S. nuclear weapon secrets, including that on the W88, the newest U.S. nuclear warhead. This serious controversy became public in early 1999 and raised policy issues about whether U.S. security was further threatened by China's suspected use of U.S. nuclear weapon secrets in its development of nuclear forces, as well as whether the Administration's response to the security problems was effective or mishandled and whether it fairly used or abused its investigative and prosecuting authority. The Clinton Administration acknowledged that improved security was needed at the weapons labs but said that it took actions in response to indications in 1995 that China may have obtained U.S. nuclear weapon secrets. Critics in Congress and elsewhere argued that the Administration was slow to respond to security concerns, mishandled the too narrow investigation, downplayed information potentially unfavorable to China and the labs, and failed to notify Congress fully.
On April 7, 1999, President Clinton gave his assurance that partly "because of our engagement, China has, at best, only marginally increased its deployed nuclear threat in the last 15 years" and that the strategic balance with China "remains overwhelmingly in our favor." On April 21, 1999, Director of Central Intelligence (DCI) George Tenet, reported the Intelligence Community's damage assessment. It confirmed that "China obtained by espionage classified U.S. nuclear weapons information that probably accelerated its program to develop future nuclear weapons." It also revealed that China obtained information on "several" U.S. nuclear reentry vehicles, including the Trident II submarine-launched missile that delivers the W88 nuclear warhead as well as "a variety of" design concepts and weaponization features, including those of the neutron bomb.
On May 25, 1999, the House's Cox Committee reported that China stole classified information on the W88 and six other U.S. nuclear warheads. On June 15, 1999, the President's Foreign Intelligence Advisory Board (PFIAB) called the Department of Energy a "dysfunctional bureaucracy" and urged the creation of a semi-autonomous or independent agency to oversee nuclear weapons. In September 1999, Congress passed the FY2000 National Defense Authorization Act to create a National Nuclear Security Administration (NNSA) within DOE on March 1, 2000.
As one result of the W-88 case, the FBI investigated a Taiwan-born U.S. scientist at the Los Alamos lab, Wen Ho Lee. He was never charged with espionage. In December 1999, the Justice Department indicted Lee on 59 felony counts for mishandling nuclear weapons information (not classified at the time). Lee was jailed without bail until a plea agreement on September 13, 2000, when he pleaded guilty to one count of mishandling national defense information (for making copies of his computer files). The judge apologized to Lee. Meanwhile, in April 1999, the FBI expanded its counterintelligence investigation beyond the focus on Los Alamos, and in 2000, the probe shifted to missile secrets and to the Defense Department. In April 2003, an ex-FBI agent, James Smith, and his informant, Katrina Leung, were arrested for allegedly mishandling national defense information related to China.
In early 1999, Congress heightened concerns about security over nuclear weapon data at the U.S. nuclear weapon laboratories (Lawrence Livermore, Los Alamos, and Sandia) after public news reports said that the People's Republic of China (PRC) may have acquired the design of the W88 nuclear warhead in the 1980s. This case was the third publicly reported case involving China's suspected compromise of U.S. nuclear weapon secrets.
In April 1999, President Clinton stated that the PRC had fewer than two dozen long-range nuclear weapons, compared to 6,000 in the U.S. arsenal. Nevertheless, some were concerned that China was developing a new DF-31 solid-fuel, mobile intercontinental ballistic missile (ICBM), with a range of about 5,000 miles, reportedly with a smaller warhead (700 kg; 1,500 lb.) than the current DF-5A ICBMs. In addition, China reportedly had programs to develop a next-generation JL-2 submarine-launched ballistic missile (SLBM) and a longer-range ICBM.(1)
This controversy about the W-88 warhead raised policy issues about whether U.S. security was further threatened by the PRC's suspected use of U.S. nuclear weapon secrets in its development of smaller nuclear warheads and new ICBMs, as well as whether the Administration's response to the security problem was effective or mishandled and whether it fairly used or abused its investigative and prosecuting authority. The case also raised questions about the roles of the media and Congress.
Suspicions about PRC attempts to acquire secrets from U.S. nuclear weapon labs were longstanding, including congressional concerns discussed below. A 1994 book on PRC intelligence cited the head of counterintelligence at the Federal Bureau of Intelligence (FBI) in Los Angeles as saying that the PRC had tried to recruit people at Los Alamos and Lawrence Livermore labs.(2) In the three publicly reported cases that occurred in the late 1970s to 1980s, China may have conducted clandestine operations at the labs or benefitted from voluntary disclosures or lapses in security. However, in these cases, the reported suspects were U.S. scientists working at the labs who were born in Taiwan. A fourth case, reported by the media in April 1999, suggested that China sought more neutron bomb data in 1995. However, it was uncertain whether this reported incident involved any of the Department of Energy (DOE)'s nuclear weapon labs. In April 2003, a retired FBI agent and former head of the FBI's counter-China efforts in Los Angeles, James Smith, and his informant and reported lover, Katrina Leung, were arrested in connection with allegedly passing secrets to China.
"Tiger Trap". In the first public case, the press reported in 1990 that China had stolen data on the neutron bomb from the Lawrence Livermore lab sometime in the late 1970s to early 1980s, and the FBI began an investigation perhaps in 1986. This case, code-named "Tiger Trap," reportedly remained open as of 2000(3) and became tied to later cases. The PRC allegedly used U.S. secrets about the W70 neutron warhead to make an experimental neutron bomb that was tested in 1988 and also passed the information to Pakistan. The U.S. scientist involved was fired after being investigated for two years, but, because of insufficient evidence, was never charged with a crime.(4) In late 2000, the suspect's name was publicly reported to be Gwo-Bao Min.(5) Saying he was unaware of the FBI's investigation at the time, the suspect in the third case, Wen Ho Lee, made a call to this person in 1982.
"Royal Tourist". The second case came to light when a U.S. scientist, Peter H. Lee, admitted on December 8, 1997, in a plea bargain that, during a trip to China in January 1985, he gave PRC nuclear scientists classified information about his work at Los Alamos on using lasers to simulate thermonuclear explosions and problems in U.S. simulations of nuclear weapon testing. He also admitted failure to disclose his lectures in China in May 1997 on his work on sensitive satellite radar imaging to track submarines at TRW, Inc. (developed at Lawrence Livermore lab). Lee disclosed the information on anti-submarine warfare at the Institute of Applied Physics and Computational Mathematics (IAPCM), a PRC nuclear weapon facility. Lee was not charged with espionage, in part because the information on the laser device was declassified by Energy Secretary Hazel O'Leary in 1993 and the Navy did not want open discussion of the sensitive radar technology. Lee's attorney, James Henderson, said that Lee was not a spy but did make mistakes. He reportedly explained that he was trying to help PRC scientists and boost his own reputation in China. After a seven-year investigation by the FBI that began in 1990 (code-named "Royal Tourist"), Lee was sentenced in March 1998 to one year at a halfway house. This case was briefed to National Security Advisor Sandy Berger by DOE intelligence officials in July 1997 and included in a classified counterintelligence report completed in November 1998 that reportedly was sent to the White House.(6) At hearings in 2000, Senator Specter criticized the prosecution of this case.
"Kindred Spirit"/"Fall Out". The third case became public as a result of a comprehensive investigation into technology transfers to China conducted in 1998 by the bipartisan House Select Committee on U.S. National Security and Military/Commercial Concerns with China (led by Representative Chris Cox and commonly called the "Cox Committee"). The press first reported in January 1999 that U.S. intelligence discovered in 1995 that secrets about the W88, the most advanced miniature nuclear warhead (deployed on the Trident II SLBM), may have leaked from Los Alamos National Laboratory to China between 1984 and 1988. U.S. intelligence reportedly was handed a secret PRC document from 1988 containing designs similar to that of the W88. The discovery prompted an FBI investigation (code-named "Kindred Spirit") that began in September 1995.(7)
Suspicions that China may have acquired W88 data also led analysts to reexamine a series of nuclear explosions detonated by China prior to its announcement of a moratorium on nuclear testing (in July 1996) and new willingness to sign the Comprehensive Test Ban Treaty (CTBT) (in September 1996). After China became the last of the five declared nuclear weapon states to begin a moratorium, there were suspicions that China took the step, not just because of arms control, but because it had reached its goals in nuclear weapon modernization or achieved the capability to simulate nuclear explosions. Some speculated that China received test data from Russia or France.(8)
Separate from the W88 case, however, the investigation resulted in the criminal investigation and indictment in 1999 of Los Alamos scientist Wen Ho Lee(9) for mishandling defense information and questions about whether Taiwan was involved.
Meanwhile, apparently reassessing "Kindred Spirit" and finding it to have been too narrowly focused on one lab (Los Alamos) and one suspect (Lee), the FBI in April 1999 reportedly started an expanded investigation (code-named "Fall-out"). In October 2000, it was reported that the investigation had shifted significantly to examine the Pentagon and its facilities and contractors, after intelligence agencies concluded that PRC espionage acquired more classified U.S. missile technology, including that on the heat shield, than nuclear weapon secrets.(10)
Neutron Bomb Data in 1990s. In a fourth case reported in April 1999, there were allegations that PRC espionage directed at U.S. nuclear weapon designs continued into the 1990s. U.S. intelligence reportedly learned in early 1996 from one of its spies that China sought in 1995 to acquire more U.S. information on the neutron bomb design that it obtained sometime in the late 1970s to 1980s from Livermore. Some speculated that China may have sought more data, because its 1988 test of a neutron bomb was not successful. Intelligence concerns reportedly led to: a criminal investigation by the FBI and a report from the FBI to DOE on March 27, 1996; a briefing in April 1996 for Sandy Berger (then Deputy National Security Advisor) on concerns about PRC acquisition of neutron bomb and W88 data; and an analysis of the neutron bomb case completed at DOE in July 1996 (that raised the possible involvement of Wen Ho Lee, the suspect in the W88 case). However, the government reportedly had no evidence that China was able to improve its neutron bomb nor that any of the nuclear weapon labs was involved in this case.(11)
Katrina Leung, James Smith, and William Cleveland. In a publicly known fifth case, on April 9, 2003, in Los Angeles, authorities arrested a retired FBI agent who directed the FBI's counter-China efforts in Los Angeles until 2000, James J. Smith, and his informant and mistress, a Chinese-American businesswoman named Katrina M. Leung, for involvement in allegedly mishandling national defense information -- some classified -- related to China. Justice officials reportedly found in Leung's house: a 1994 telephone directory for the FBI's Los Angeles office; a telephone list related to the "Royal Tourist" case on Peter Lee; a Secret FBI memorandum dated June 12, 1997, on fugitives from China; and a 1994 directory of FBI legal attaches. Their case involved a complicated, 20-year history that reportedly included: their affair; Leung's role as a source for the FBI (given the code-name "Parlor Maid" and paid $1.7 million in total for information about China); and the role of another FBI agent who was based in San Francisco, had his own relationship with Leung until 1999, and warned Smith in 1991 about Leung's alleged contacts with China's Ministry of State Security (MSS).(12)
On April 11, 2003, the press reported that the ex-FBI agent in San Francisco was named William Cleveland Jr. and that he was a counter-intelligence official at the Lawrence Livermore National Laboratory after retiring from the FBI in 1993 until he resigned from the lab on April 10.(13) Lawrence Livermore stated that it had no information from the FBI indicating that any classified information from the lab was "compromised." Nevertheless, the lab had placed its employee on "investigatory leave;" denied him all access to the lab; took possession of his equipment; and suspended his security clearance.(14) In addition to Cleveland's purported warnings to Smith about Leung, FBI officials in charge of counter-intelligence met in Washington in 1991 on the alleged double roles played by Leung.(15) As a result of the criminal investigation of Leung and Smith, the FBI launched a damage assessment of any compromises in the FBI's counter-intelligence cases on China since 1991 (including "Tiger Trap," "Royal Tourist," and "Kindred Spirit"). Meanwhile, Lawrence Livermore, the FBI, and DOE's National Nuclear Security Administration began an investigation into any security problems because of Cleveland's relationship with Leung and his position as the lead FBI agent in the "Tiger Trap" case in the 1980s (which Leung allegedly revealed to China in 1990).(16) Still, Larry Albert, an FBI counter-intelligence agent in Los Angeles said in May 2003 that there was no evidence of security compromises beyond the charges against Leung and Smith.(17)
On May 7, 2003, Smith, Leung's handler, was charged with concealing their romantic relationship and knowledge of her separate contacts with PRC intelligence (as a possible "double agent") as well as gross negligence in handling documents relating to national defense. He was not charged with espionage. The next day, Leung was indicted on charges of unauthorized copying and possession of national security documents, and not charged with espionage or passing those documents to PRC intelligence. The documents allegedly included transcripts of intercepted conversations in 1990-1991 between Leung (code-named "Luo") and a PRC intelligence agent (code-named "Mao").(18)
On May 12, 2004, Smith pleaded guilty to concealing his affair with Leung and agreed to cooperate with the investigation of Leung. Other charges were dropped, and Smith was allowed to keep his FBI pension.(19) However, the plea agreement included a stipulation to keep Smith from sharing information with Leung and her attorneys, which a federal judge criticized as obstructing the defendant's access to witnesses when she dismissed the criminal charges against Leung in January 2005.(20) However, federal authorities continued investigating Leung until December 16, 2005, when she pleaded guilty to two lesser felonies of making false statements to the FBI and violating tax laws in her 2000 income tax return. With no jail sentence, she agreed to three years of probation, 100 hours of community service, a $10,000 fine, and FBI debriefings for 18 months.(21)
Concerning the serious case of China's suspected acquisition of the W88 data that became public in early 1999, there were concerns about China's modernization of its nuclear-armed ballistic missile force and implications for U.S. national security. This modernization for the military, the People's Liberation Army (PLA), reportedly has included efforts to develop a miniaturized nuclear warhead and more reliable and mobile missiles, possibly with multiple independently targetable reentry vehicles (MIRVs). China reportedly deployed over 100 nuclear warheads, with more warheads in storage and a stockpile of fissile material.(22) Of particular concern were about 20 DF-5A strategic, long-range ICBMs (13,000 km.; 8,000+ mi.) that could reach the United States. China has developed a new DF-31 solid-fuel, mobile ICBM, with a range of about 5,000 miles, reportedly with a smaller warhead (700 kg; 1,500 lb.) than the DF-5A ICBMs. In addition, China has pursued programs to develop a next-generation JL-2 SLBM and a longer-range ICBM.(23)
On April 7, 1999, President Clinton presented a public assessment that in the U.S.-China strategic balance, U.S. nuclear forces still maintained decisive superiority over China's relatively limited strategic nuclear forces. He declared,<blockquote>Now, we have known since the early 1980s that China has nuclear armed missiles capable of reaching the United States. Our defense posture has and will continue to take account of that reality. In part, because of our engagement, China has, at best, only marginally increased its deployed nuclear threat in the last 15 years. By signing the Comprehensive Test Ban Treaty, China has accepted constraints on its ability to modernize its arsenal at a time when the nuclear balance remains overwhelmingly in our favor. China has fewer than two dozen long-range nuclear weapons today; we have over 6,000.(24)</blockquote>
At the end of 1998, the House Select Committee on China chaired by Congressman Cox approved a report that urged, among other recommendations, that "the appropriate Executive departments and agencies should conduct a comprehensive damage assessment of the strategic implications of the security breaches that have taken place" by China at the nuclear weapon labs.(25) The Intelligence Community assessed the difficult question of how much PRC nuclear weapon designs might have benefitted if China obtained the W88 data. On this question, National Security Advisor Berger acknowledged in March 1999, soon after the news reports, that "there's no question they benefitted from this."(26)
Director of Central Intelligence (DCI) George Tenet further announced on March 15, 1999, that after an interagency team completed a damage assessment by the end of March, an independent panel led by retired Admiral David Jeremiah would review the findings. The damage assessment of the Intelligence Community was completed by the end of March, and the panel reviewed that assessment and made recommendations for changes by early April. Some said that an independent review was needed to give the assessment greater credibility against any charges of politicization intended to protect the policy of engagement toward China and other policies. Some reports suggested that, in August 1997 (as the White house prepared for President Clinton's first summit with China), NSC official Gary Samore had requested an alternative assessment from the CIA that downplayed DOE's conclusion that successful PRC espionage was primarily responsible for the leaks at Los Alamos.(27)
The DCI briefed the final assessment to the appropriate congressional committees and the White House on April 21, 1999. Robert Walpole, the National Intelligence Officer for Strategic and Nuclear Programs, led the damage assessment, which was prepared by the CIA, DOE, Department of Defense, the Defense Intelligence Agency, the National Security Agency, the State Department's Bureau of Intelligence and Research, the FBI, the National Counterintelligence Center, and nuclear weapon experts from Los Alamos, Livermore, and Sandia labs.(28) After being briefed on the Intelligence Community's damage assessment on April 21, 1999, President Clinton said that he asked the National Counterintelligence Policy Board to assess potential vulnerabilities at nuclear weapon institutions other than the national labs.(29)
According to the unclassified key findings released by the DCI, the Intelligence Community's damage assessment, with concurrence by the independent panel, confirmed that "China obtained by espionage classified U.S. nuclear weapons information that probably accelerated its program to develop future nuclear weapons." That successful PRC espionage effort, which dated back to at least the late 1970s, benefitted PRC nuclear weapon design program by allowing China to "focus successfully down critical paths and avoid less promising approaches to nuclear weapon designs." Furthermore, the assessment found that China obtained "basic design information on several modern U.S. nuclear reentry vehicles, including the Trident II" that delivers the W88 warhead as well as "a variety of U.S. weapon design concepts and weaponization features, including those of the neutron bomb." The information on U.S. nuclear weapons made an "important contribution" to PRC efforts to maintain a second strike capability and develop future nuclear weapon designs. However, it was uncertain whether China obtained documentation or blueprints, and China also benefitted from information obtained from a wide variety of sources, including open sources (unclassified information) and China's own efforts. The assessment also stated that the PRC has not demonstrated any "apparent modernization" of the deployed strategic force or any new nuclear weapons deployment. (China has not conducted nuclear tests since July 1996.) The assessment also confirmed that China has had the "technical capability" to develop a MIRV system for the currently deployed ICBM, but has not deployed a MIRV system. Nonetheless, U.S. intelligence reported that "U.S. information acquired by the Chinese could help them develop a MIRV for a future mobile missile."
On the continuing need for effective counterintelligence and intelligence, the assessment confirmed that the PRC currently was using "aggressive collection efforts" directed at U.S. nuclear weapon secrets in order to fill significant gaps in China's programs. Adding further to questions about possible politicization and erosion of expertise in the Intelligence Community, the independent review panel warned that the Intelligence Community had "too little depth." The panel also added that multiple countries "have gained access to classified U.S. information on a variety of subjects for decades, through espionage, leaks, or other venues," and such losses were "much more significant" in the current context of diminished U.S. research efforts intended to ensure a "protective edge" over those countries using U.S. information.
Findings. According to its declassified report released in May 1999,(30) the Cox Committee reported that, since the late 1970s and "almost certainly" continuing to the present, the PRC has pursued intelligence collection that included not only espionage, but also reviews of unclassified publications and interaction with U.S. scientists at the DOE's national laboratories, including Los Alamos, Lawrence Livermore, Oak Ridge, and Sandia. China has "stolen" classified information on the most advanced U.S. thermonuclear weapons, giving the PRC design information on thermonuclear weapons "on a par with our own." The information included classified information on seven warheads, including "every currently deployed thermonuclear warhead in the U.S. ballistic missile arsenal;" on the neutron bomb; and on "a number of" reentry vehicles of U.S. missiles. The PRC acquired information on seven U.S. nuclear warheads, including the W88, the most advanced, miniature U.S. nuclear warhead deployed on the Trident D-5 submarine-launched ballistic missile (SLBM):
W88: deployed on the Trident D-5 SLBM
W87: deployed on the Peacekeeper ICBM
W78: deployed on the Minuteman III ICBM
W76: deployed on the Trident C-4 SLBM
W70: previously deployed on the Lance short-range ballistic missile (SRBM)
W62: deployed on the Minuteman III ICBM
W56: previously deployed on the Minuteman II ICBM.
The committee focused on potential implications for U.S. national security, judging "that the PRC will exploit elements of the U.S. design information on the PRC's next generation of thermonuclear weapons." China successfully tested smaller thermonuclear warheads in 1992 to 1996,(31) prior to its July 1996 announcement of a nuclear testing moratorium and its September 1996 signing of the Comprehensive Test Ban Treaty (CTBT). The committee reported that information lost from the DOE labs accelerated PRC nuclear weapon modernization and "helped the PRC in its efforts to fabricate and successfully test its next generation of nuclear weapons designs. These warheads give the PRC small, modern thermonuclear warheads roughly equivalent to current U.S. warhead yields." The PRC "could begin serial production" of such weapons during the next decade in connection with the development of its next generation of solid-fuel mobile ICBMs, including the DF-31 that "may be tested in 1999" and "could be deployed as soon as 2002." Although the PRC already has deployed nuclear-armed ICBMs, "with stolen U.S. technology, the PRC has leaped, in a handful of years, from 1950s-era strategic nuclear capabilities to the more modern thermonuclear weapons designs." Regarding whether the PRC's nuclear program continued to require testing, the committee judged that if the PRC successfully steals U.S. nuclear test codes, computer models, and data, and uses them with the U.S. high performance computers, or supercomputers, already imported, the PRC "could diminish its need for further nuclear testing to evaluate weapons and proposed design changes."
As for the strategic balance, the report noted that "the United States retains an overwhelming qualitative and quantitative advantage in deployed strategic nuclear forces" over the PRC's up to two dozen CSS-4 ICBMs. Nonetheless, the report stated that "in a crisis in which the United States confronts the PRC's conventional and nuclear forces at the regional level, a modernized PRC strategic nuclear ballistic missile force would pose a credible direct threat against the United States."
On the question of whether having smaller nuclear warheads would facilitate PRC development of multiple independently targetable reentry vehicles (MIRVs) for its nuclear missile force, the committee reported that it had "no information on whether the PRC currently intends to develop and deploy" MIRVs.
A complicating factor was that, as the committee revealed, the CIA obtained, in 1995 someplace outside of the PRC, a secret PRC document containing "design information" on the W88 and "technical information" on another five U.S. thermonuclear warheads from a "walk-in" directed by PRC intelligence. The "walk-in" volunteered various materials to the CIA and to Taiwan, according to Representative Cox.(32) There were questions about the credibility and motivation of the "walk-in" who provided documents showing PRC possession of U.S. nuclear weapon secrets. As the Cox report noted, "there is speculation as to the PRC's motives for advertising to the United States the state of its nuclear weapons development." PRC intelligence could have sought to raise the credibility of the "walk-in;" increase the credibility of China's nuclear arsenal as a deterrent to U.S. intervention in a regional crisis; trigger a disruptive "spy hunt" in the United States; or raise suspicions of PRC students working in the United States to bring them back to China.(33) Also, China could have made a major blunder or had another unknown objective. In addition, a rival of the PRC could have planted the documents in Taiwan,(34) or the "walk-in" could have sold them in self-interest. In any case, as the Cox Committee's report said, PRC nuclear tests conducted from 1992 to 1996 had already raised suspicions in U.S. intelligence that China had stolen U.S. nuclear weapon information, and the information provided by the "walk-in" in 1995 "definitely confirmed" those suspicions.
Prather Report. A report by a nuclear physicist Gordon Prather, released by Jack Kemp on July 8, 1999, questioned the Cox Report's findings about PRC espionage, but criticized the Clinton Administration (particularly former Energy Secretary Hazel O'Leary) for its policies. Prather cited three policies as responsible for security problems at the labs: support for the CTBT; a "reckless policy" of unprecedented "openness" that declassified much nuclear weapon information, so that spying was unnecessary; and engaging the PRC nuclear weapon establishment with the DOE's lab-to-lab exchanges.(35)
China Confirmed Its Neutron Bomb. On July 15, 1999, the PRC government issued a response denying the Cox Committee's charges that China stole U.S. secrets. In the report was a short paragraph acknowledging that China had the neutron bomb. The statement said China mastered "in succession the neutron bomb technology and nuclear weapon miniaturization technology." In addition, "since China has already possessed atom bomb and H-bomb technologies, it is quite logical and natural for it to master the neutron bomb technology through its own efforts over a reasonable period of time."(36)
For a parallel review, on March 18, 1999, President Clinton appointed former Senator Warren Rudman, head of the President's Foreign Intelligence Advisory Board (PFIAB), to undertake a review of how the government handled security challenges at the labs over the last 20 years. The PFIAB's special investigative panel, with four members, reviewed over 700 documents and interviewed over 100 witnesses -- who apparently had concerns about reprisals and asked that they not be named. On June 15, 1999, the PFIAB issued an unprecedented unclassified report, with findings and recommendations for both the Executive and Legislative Branches.(37) These findings and recommendations are summarized below.
1. A new semi-autonomous agency with DOE (similar to the National Security Agency (NSA), Defense Advanced Research Projects Agency (DARPA) or the National Oceanographic and Atmospheric Administration (NOAA)) reporting directly to the Secretary of Energy.
2. An independent agency (similar to the National Aeronautics and Space Administration (NASA)) reporting directly to the President.
In December 1999, four scholars at Stanford University's Center for International Security and Cooperation issued their critique of the Cox Committee's unclassified report.(38) In the section on nuclear weapons, W. K. H. Panofsky found that the Cox Committee's report "makes largely unsupported allegations about theft of nuclear weapons information, but the impact of losses is either greatly overstated or not stated at all." Further, the author wrote that "there is no way to judge the extent, should China field a new generation of thermonuclear weapons, of the benefit derived from publicly available knowledge, indigenous design efforts, and clandestinely obtained information." Panofsky also doubted the Cox Committee's assertion that stolen U.S. nuclear secrets gave the PRC design information on thermonuclear weapons on par with our own.
The Senate Intelligence Committee's staff director, Nicholas Rostow, (formerly the deputy staff director of and counsel to the Cox Committee) issued a response to the critique by the group at Stanford.(39) He maintained that the Cox Committee report "is valuable" and "factually accurate." He explained that "the important findings of the Select Committee are almost all based on classified information." He assessed the critique as "an attempt to foster debate and to reiterate the authors' views on U.S. relations with the People's Republic of China."
In May 2001, the press began to report on an unpublished book by Danny Stillman, a former scientist at Los Alamos, who decided to sue the government to allow him to publish a manuscript about his experience in exchanges between U.S. and PRC nuclear weapons scientists in the 1990s.(40) Stillman argued that China's nuclear weapons program accomplished important advances on its own, without resorting to espionage. According to Stillman, PRC scientists argued that, contrary to the Cox Committee's report, China started research on miniaturized warheads in the 1970s, but development failed because of the lack of supercomputers, until a nuclear weapon test on September 25, 1992. Stillman and others reportedly alleged that the government was blocking the publication of his book, Inside China's Nuclear Weapons Program, because of political reasons, rather than security concerns, because Stillman offered information contrary to charges against China. Although Stillman submitted his writings for government review in January 2000, as of June 2003, his attorney, Mark Zaid, told CRS that the lawsuit was continuing.
Congress has voiced long-standing concerns about security at the nuclear weapon labs. Some attention focused on the foreign visitor program, which was reportedly not the primary concern in the public cases involving alleged leaks by U.S. scientists to China. In 1988, Senator John Glenn, chairman of the Senate Governmental Affairs Committee, held a hearing, and the General Accounting Office (GAO) presented a report on the extent to which foreign nationals work at the nuclear weapon labs and the effectiveness of security checks there. Senator Glenn also said that back in October 1979, his committee began to examine access by foreign visitors to mistakenly declassified documents at the public library at the Los Alamos lab.(41)
Later, the House National Security Committee requested in May 1996 that the GAO again study controls over foreign visitors at the labs.(42) In October 1998, Congressman Hunter held a hearing on DOE's foreign visitor program.(43)
The National Defense Authorization Act for FY1997 (P.L. 104-201) prohibited DOE from using funds for cooperative activities with China related to nuclear weapons or nuclear weapons technology, including stockpile stewardship, safety, and use control. (Stockpile stewardship relates to the evaluation of nuclear weapons without testing.) The National Defense Authorization Act for FY1998 (P.L. 105-85) banned the DOE's use of funds for activities with China in cooperative stockpile stewardship, and similar legislation for FY1999 (P.L. 105-261) made the ban permanent.
Prompted by reports that missile technology was transferred to China in connection with satellite exports,the Senate Intelligence Committee, in 1998, carried out an investigation and issued its unclassified report on May 7, 1999.(44) On March 25, 1999, Senator Shelby, the committee's chair, announced that it voted unanimously to begin an investigation into whether China obtained U.S. nuclear weapon secrets and how the Administration dealt with counter-intelligence at the labs.(45) On January 27, 2000, the committee's staff director, Nicholas Rostow, said that the committee would independently confirm that the DOE improved security at the labs.(46)
In the House, the Cox Committee, in the last half of 1998, examined broader technology transfers to China, including possible leaks of missile and nuclear weapon-related know-how. The bipartisan committee unanimously approved a classified report, with 38 recommendations, on December 30, 1998 and, after working with the Clinton Administration, issued a declassified version on May 25, 1999. (See section on Damage Assessment below.)
The Senate Governmental Affairs Committee conducted 13 hours of closed hearings to review the investigatory steps of the Departments of Energy and Justice, and the FBI. It issued a bipartisan report on August 5, 1999, under the names of both Chairman Fred Thompson and Ranking Minority Member Joseph Lieberman. The committee did not take a position on whether the W88 or other nuclear weapons were compromised, but concluded that the federal government's handling of the investigation since 1995 consisted of "investigatory missteps, institutional and personal miscommunications, and ... legal and policy misunderstandings and mistakes at all levels of government." The Senators said that "the DOE, FBI, and DOJ must all share the blame for our government's poor performance in handling this matter."(47)
On October 26, 1999, Senator Specter, under the jurisdiction of the Senate Judiciary Subcommittee on Administrative Oversight and the Courts, held the first hearing in his investigation into the Justice Department's handling of the PRC nuclear espionage investigation, satellite exports, campaign finance, Waco, and other issues. (See also Hearings below.) Senator Specter criticized the Department's prosecution of Peter H. Lee in 1997, which resulted in a plea bargain. Defenders argued that the information involved was declassified, and the defendant was not a spy and did not pass nuclear weapon secrets.(48) On March 8, 2000, Senator Specter issued a report critical of the investigation of Wen Ho Lee.(49)
In the 106th Congress, open and closed hearings on the question of suspected PRC acquisition of U.S. nuclear weapon secrets, first reported by news media in January 1999, included these 53 hearings held by the following panels:
Senate Armed Services, and Energy and Natural Resources, March 16, 1999;
House Appropriations Subcom. on Commerce, Justice, State, and Judiciary, March
Senate Select Intelligence, March 17, 1999;
Senate Armed Services, March 25, 1999;
Senate Armed Services, April 12, 1999;
Senate Energy and Natural Resources (closed), April 14, 1999;
House Armed Services Subcom. on Military Procurement, April 15, 1999;
House Commerce Subcom. on Oversight and Investigations, April 20, 1999;
Senate Energy and Natural Resources, April 28, 1999;
Senate Intelligence (closed), April 29, 1999;
Senate Energy and Natural Resources, May 5, 1999;
Senate Judiciary, May 5, 1999;
House Commerce, May 5, 1999;
Senate Energy and Natural Resources, May 12, 1999;
Senate Intelligence (closed), May 12, 1999;
Senate Intelligence (closed), May 19, 1999;
Senate Energy and Natural Resources, May 20, 1999;
Senate Energy (closed), May 20, 1999;
Senate Government Affairs (closed), May 20, 1999;
House Science, May 20, 1999;
House International Relations Subcom. on Asia and Pacific, May 26, 1999;
Senate Governmental Affairs Subcom. on International Security, Proliferation, and
Federal Services, May 26, 1999;
House Intelligence (closed), June 8, 1999;
Senate Judiciary (closed), June 8, 1999;(50)
Senate Governmental Affairs (closed), June 9, 1999;
Senate Intelligence, June 9, 1999;
Senate Governmental Affairs, June 10, 1999;
Senate Banking, Housing, and Urban Affairs, June 10, 1999;
Senate Armed Services, Energy, Governmental Affairs, and Intelligence, June 22,
House Commerce, June 22, 1999;
Senate Armed Services, June 23, 1999;
House Armed Services, June 24, 1999;
House Government Reform, June 24, 1999;
House Science, June 29, 1999;
Senate Intelligence (closed), June 30, 1999;
House Commerce, July 13, 1999;
House Armed Services, July 14, 1999;
Senate Energy and Natural Resources, July 16, 1999;
House Commerce, July 20, 1999;
Congressional Asian Pacific American Caucus (briefing), on October 5, 1999;
Senate Governmental Affairs and Energy, October 19, 1999;
House Armed Services Subcom. on Military Procurement, October 20, 1999;
Senate Judiciary Subcom. on Administrative Oversight and the Courts, October 26,
House Commerce Subcom. on Oversight and Investigations, October 26, 1999;
House Armed Services Subcom. on Military Procurement, November 10, 1999;
Senate Judiciary Subcom. on Administrative Oversight and the Courts (closed),
December 16, 1999;
Senate Judiciary Subcom. on Administrative Oversight and the Courts, March 29,
Senate Judiciary Subcom. on Administrative Oversight and the Courts, April 5, 2000;
Senate Judiciary Subcom. on Administrative Oversight and the Courts, April 12,
Senate Judiciary and Select Intelligence, September 26, 2000;
Senate Intelligence (closed), September 26, 2000;
Senate Judiciary Subcom. on Administration Oversight and the Courts, September
Senate Judiciary Subcom. on Administration Oversight and the Courts, October 3,
Moratorium on Foreign Visits. Some Members expressed concerns about foreign visitors to the national labs, but the Administration said that foreign visitors did not compromise U.S. nuclear weapon secrets. Representative Ryun introduced H.R. 1348 on March 25, 1999, to prohibit foreign nationals from countries on the DOE's Sensitive Countries List(51) from visiting the nuclear weapon labs, unless the Secretary of Energy notifies Congress ten days before waiving the prohibition. Senator Shelby introduced similar legislation (S. 887) on April 27, 1999.
On May 27, 1999, the Senate agreed by voice vote to Senator Lott's amendment to the National Defense Authorization Act for FY2000 (S. 1059). The amendment sought to improve the monitoring of satellite exports and strengthen safeguards, security, and counterintelligence at DOE facilities.(52) On June 9, 1999, Representative Cox introduced an amendment(53) to the House's version (H.R. 1401). The amendment consisted of 27 sections, with 25 sections requiring reports or other actions, or amending the law; a section simply providing a short title; and a section providing a definition of "national laboratory." The sections or subsections of the Cox amendment addressed fully or partially 21 of the 38 recommendations of the Cox Committee. The House agreed to the Cox amendment by 428-0 on that day and passed H.R. 1401 on June 10, 1999. Meanwhile, Representative Ryun's amendment (to impose a two-year moratorium on foreign visitors from sensitive countries to the national labs) failed by 159-266 on June 9, 1999. Section 3146 of the FY2000 National Defense Authorization Act (P.L. 106-65), enacted on October 5, 1999, required background checks on foreign visitors and imposed a moratorium on visits to the national labs by foreign nationals of countries on the Sensitive Countries List, until DOE's Director of Counterintelligence, the Director of the FBI, and the DCI issue certifications about security measures for the foreign visitors program. The Secretary of Energy, though, may waive the ban on a case-by-case basis. Secretary Richardson said on December 2, 1999, that he would begin to issue such waivers for foreign scientists, in order to "restore the proper balance between security and science."(54)
National Nuclear Security Administration (NNSA).(55) In May 1999, Senators Kyl, Murkowski, and Domenici drafted an amendment to the Defense Authorization bill (S. 1059) to create a new agency within DOE, but Senate leaders removed the language on May 27 after Secretary Richardson threatened to recommend a Presidential veto.(56) The Administration, represented by Richardson, opposed the Senators' proposal, saying it would undermine his authority and create a new "fiefdom."(57) A critic of the proposal wrote that "DOE is indeed a dysfunctional bureaucracy, but the labs are not better. Making the labs more autonomous is the wrong way to go."(58) Other opponents said that the labs needed to retain openness in order to advance scientific research important to national security.
On the other side, the President's Foreign Intelligence Advisory Board (PFIAB), chaired by former Senate Warren Rudman, recommended, on June 15, 1999, a new Agency for Nuclear Stewardship (ANS) and argued that semi-autonomous or independent "organizations like NASA [National Aeronautics and Space Administration] and DARPA [Defense Advanced Research Projects Agency] have advanced scientific and technological progress while maintaining a respectable record of security."(59) Secretary Richardson agreed with the PFIAB that DOE's organizational structure required serious change but expressed "strong reservations" about the recommendation for a semi-independent or independent agency.(60)
On June 7,1999, Representative Thornberry introduced H.R. 2032 to establish a Nuclear Security Administration in the Department of Energy. Some Members also looked at introducing language to reorganize DOE in the Senate Intelligence Authorization bill for FY2000 (S. 1009).
On July 7, 1999, however, Secretary Richardson agreed to the proposal to set up a new ANS, as long as it would be a semi-autonomous agency within DOE, under his control, and not a fully autonomous agency.(61) By a vote of 96-1, the Senate on July 21, 1999, approved an amendment (S.Amdt. 1258, Kyl) to the Senate-passed FY2000 Intelligence Authorization Act (H.R. 1555) to create the ANS. Richardson praised the bill, saying it was "a good start" in codifying reforms at DOE.(62) The ANS would be a separately organized agency within the DOE, under the direction of the Energy Secretary, to be headed by the Under Secretary for Nuclear Stewardship who shall also serve as director of the ANS. Democratic Senators Bingaman and Levin sought changes to the amendment, including explicit authority for the Energy Secretary to continue to use the field offices(63) and to control counterintelligence and security operations. The House's options included agreeing to the Senate's plan or opting for another option, including leaving the organization of DOE unchanged, creating an independent agency outside of DOE, and changing the contractual arrangements for running the labs (under the University of California (UC), for example). Some asserted that UC, whose contract had not been subject to competitive bidding since 1943, provided "marginal" oversight of and "political protection" for some DOE labs.(64) (UC has operated the Lawrence Livermore and Los Alamos labs, while Lockheed Martin Corporation has run Sandia.)
Then, the House Armed Services Committee argued that it had jurisdiction over nuclear weapons and that the FY2000 National Defense Authorization Act (S. 1059; P.L. 106-65) ought to legislate organizational changes at DOE.(65) Conferees adopted H.Rept. 106-301 on August 6, 1999, to create a National Nuclear Security Administration (NNSA) within DOE, effective March 1, 2000.
However, the Administration and some Democrats on the Senate Armed Services Committee objected to what they argued would undermine the Energy Secretary's authority. Senator Levin said that "the final product on DOE reorganization appears to go beyond creation of a new, separately organized entity within DOE, which I support." He said that the Energy Secretary would have direct control over the administrator of NNSA, but not its employees. Representative Thornberry contended that the secretary would have no restraints on his authority over the new administrator.(66)
Richardson initially wanted to recommend that President Clinton veto the bill, as its provision on DOE reorganization differed from the Senate-passed intelligence authorization act he supported in July 1999. Richardson objected to the conference report because, he says, it would undermine his authority; blur the lines of responsibility in security, counterintelligence, environment, safety and health; and direct budgetary proposals be made directly to Congress.(67) In addition to some Democrats in Congress, 46 state attorneys general also urged a Presidential veto.(68)
After the House and Senate passed S. 1059 in September 1999, Richardson announced on September 26, 1999, that he would not oppose the bill. He said, "I believe we can interpret the provisions so there are clear lines of responsibility and the secretary is in charge and we protect our national security."(69)
Concerns about Compliance with the Law. Upon signing the FY2000 National Defense Authorization Act into law (P.L. 106-65) on October 5, 1999, President Clinton raised concerns in Congress when he criticized the DOE reorganization (Title 32) as "the most troubling" part of the act and said that legislative action to "remedy the deficiencies" would help in the process of nominating the new Under Secretary for Nuclear Security to head the NNSA. "Until further notice," the President directed the Secretary of Energy to act as the Under Secretary for Nuclear Security and to direct all personnel of the NNSA.(70)
At a Senate Armed Services Committee hearing two days later, Senator Domenici charged that the Administration was trying to circumvent the new law.(71) Representative Spence, chairman of the House Armed Services Committee, wrote to the President that his order would undermine congressional intent.(72) On October 19, 1999, the Senate Government Affairs, and Energy and Natural Resources Committees held a joint hearing to warn Secretary Richardson against failure to implement the law to establish the NNSA. Richardson assured Members that he would comply with the law but urged Congress to use the Intelligence Authorization Act (H.R. 1555) to correct what he saw as deficiencies in the Defense Authorization Act. Some Members said it was premature to allege noncompliance, since the effective date was specified as March 1, 2000. In November 1999, the House and Senate passed H.R. 1555 without provisions on security at the DOE labs.
A CRS legal memorandum for Representative Thornberry (that was made public) agreed that President Clinton's statement and directions raised legal and constitutional issues on the question of the Administration's compliance with the law creating the NNSA.(73)
On January 7, 2000, Secretary Richardson submitted DOE's plan for implementation of legislation to establish the NNSA on March 1, 2000 and named a committee to search for the first Under Secretary for Nuclear Security to serve as the head of NNSA.(74)
However, Richardson's plan raised questions about the semi-autonomous status of the NNSA, calling for some DOE officials to "serve concurrently" in some functions, including nuclear security and counter-intelligence. He cited reasons such as "program continuity," "shortness of time for implementation," and the "scheduled change in executive branch administration next January." Field managers at some field operations would also "serve concurrently in dual positions."
Indeed, a special panel of the House Armed Services Committee, with Representatives Thornberry, Tauscher, Hunter, Graham, Ryun, Gibbons, Sisisky, and Spratt, reviewed DOE's implementation plan and cited some "serious flaws."(75) While the panel was encouraged by DOE's responses, it criticized the plan for "dual-hatting" DOE and NNSA officials; continuing the confused and inadequate lines of authority (e.g., with no changes in the field office structure); emphasizing DOE authority; lacking improvements to NNSA programming and budgeting; lacking specificity and comprehensiveness; and reflecting little outside consultation. The panel's report concluded that the implementation plan, if carried out, would "violate key provisions of the law." However, Representative Spratt offered his dissenting views. While he agreed that the implementation plan fell short of the legal requirements, he objected that the panel's report was too conclusive and lacked a critical review of the law that created NNSA and whether it is workable.
Concerns About Racial Profiling. In other action, Members of Congress expressed concerns about possible racial profiling used in the investigation of Wen Ho Lee and ramifications of this case on Americans of Asian Pacific heritage. The House, on November 2, 1999, passed H.Con.Res. 124, introduced by Representative Wu to express the sense of Congress that the Attorney General, Secretary of Energy, and the Commissioner of the Equal Employment Opportunity Commission should enforce security at the labs and investigate allegations of discrimination. On August 5, 1999, Senator Feinstein introduced S.Con.Res. 53, condemning prejudice against individuals of Asian and Pacific Island ancestry, which the Senate passed on July 27, 2000. (See also Racial Profiling and Selective Prosecution below.)
CTBT. The Senate, led by Republican Members, voted (51-48) to reject the Comprehensive Test Ban Treaty (CTBT) on October 13, 1999, because of reservations about the implications for U.S. national security. Some supporters of the CTBT argued that the treaty was one way to impede the PRC's nuclear weapon modernization, even if it acquired U.S. secrets, because Beijing needed to test, while blueprints and computer codes were not enough. Democratic Senator Byron Dorgan and Republican Senator Arlen Specter wrote in September 1999 that "most Americans have heard that China may have obtained secret information about U.S. nuclear weapon designs. What they haven't heard is that China may not be able to do much with that information -- if the U.S. Senate does the right thing."(76)
Concerns Since 1995. The Clinton Administration acknowledged that improvements to security measures were required at the nuclear weapon labs and said that it took a number of corrective actions in response to indications in 1995 that China may have obtained secrets about the W88 in the 1980s. Officials said that, by mid-1996, DOE had reported to the FBI, National Security Council (NSC), and Intelligence Committees in Congress that there were serious concerns about China. Prompted by information from DOE and the CIA, the FBI had begun an investigation in September 1995. On April 7, 1997, the FBI completed an assessment of "great vulnerability" due to inadequate counterintelligence at the labs and reported those findings and 16 recommendations to DOE as well as the Senate Intelligence Committee.(77)
Presidential Decision Directive-61. Former Energy Secretary Federico Pena defended DOE policies during his tenure from March 1997 to June 1998, saying that the department took a number of actions to strengthen security, including briefing the FBI, CIA, the Departments of Justice and Defense, and the NSC. In July 1997, DOE officials briefed the White House on its review of two decades of PRC efforts to acquire U.S. nuclear weapon secrets. A special working group of the National Counterintelligence Policy Board recommended ways to tighten lab security in September 1997, and, in February 1998, the White House issued Presidential Decision Directive (PDD-61)(78) to strengthen counterintelligence at the labs. In October 1997, FBI Director Louis Freeh and DCI George Tenet briefed Pena. In March 1998, Freeh and Tenet briefed lab directors on weaknesses in counterintelligence efforts. DOE established an Office of Counterintelligence, headed by a former FBI counterintelligence official, Edward Curran, on April 1, 1998. Curran, on July 1, 1998, submitted a report to the Secretary of Energy, with 46 recommendations for strengthening counterintelligence in response to PDD-61. The Secretary had 30 days to respond to the National Security Advisor, but Richardson did not become Secretary until September 1998. He issued an action plan on November 13, 1998.(79)
Energy Secretary Richardson testified on March 16, 1999, that after he took over DOE in September 1998, he ordered some corrective measures. He said those steps included a requirement for employees with access to classified information to take polygraphs, making DOE the only agency besides the CIA to have the requirement; the hiring of counterintelligence professionals at the nuclear weapon labs; repeated doubling of DOE's counterintelligence budget ($7.6 million in FY1998, $15.6 million in FY1999, and a request for $31.2 million in FY2000); and a requirement for background checks on foreign visitors to the labs. Richardson also reported that DOE implemented about 80 percent of the measures directed by PDD-61 and expected to achieve full implementation by the end of March 1999.(80)
Wen Ho Lee as Sole Suspect. For 20 years, Wen Ho Lee worked at the Los Alamos National Laboratory in the Applied Physics Division (also called the X Division) as a physicist specializing in hydrodynamics to develop the computer codes that simulate the detonation of thermonuclear explosions. Lee wrote in his 2001 book that DOE gave him a polygraph test on December 23, 1998, the day he returned from a trip to Taiwan because of a family emergency.(81) During the polygraph, Lee recalled an incident in June 1988 during a lab-approved visit to a nuclear weapons facility in China (the Institute of Applied Physics and Computational Mathematics), when two of China's nuclear weapons scientists (Zheng Shaotong and Hu Side) visited Lee in his hotel room and asked him a question about explosive detonation points in a nuclear warhead. Lee wrote that he responded that he did not know the answer and was not interested in discussing the subject. Lee acknowledged during the polygraph that he was giving a full account at that time and had not reported the incident in his earlier trip report, because of fear of getting into trouble. After the test, the examiners told Lee that he passed the polygraph.
Nevertheless, DOE suspended Lee's access to the X Division and transferred him to the Theoretical Division (T Division) that was responsible for unclassified research. Lee wrote in his book that he still tried to access his office in the X Division to continue work on a scientific paper for publication, including an attempt on Christmas eve. Then, on January 10, 1999, the FBI interrogated Lee at his home.
As was later reported, the FBI's field office in Albuquerque, New Mexico, wrote a memo, dated November 19, 1998, to headquarters, recommending that investigators look into 10 other people who had been named as potential suspects in DOE's administrative probe. The field office wrote another memo to headquarters on January 22, 1999, questioning whether Lee was the prime suspect in the W88 case, in part because he passed the December 1998 polygraph test.(82) Lee wrote in his book that the local office recommended that the FBI close the investigation on him and the acting director of the T Division, Dan Butler, informed Lee on February 4, 1999, that he could go back to the X Division.
But on February 8, 1999, an FBI agent, Carol Covert, asked to question Lee. Then, the FBI gave Lee another polygraph test on February 10, 1999, and told him he failed the test, according to Lee's account.
In his book, Lee wrote that the FBI searched his office in the T Division on March 5 and found that he had copied some files from the X Division onto a directory on the green, open computer system. Lee noted that he protected his files under three levels of passwords and that the files were not classified, but were categorized as "Protected As Restricted Data" (PARD). According to Lee, he downloaded the files as backup files to protect them in case the lab changed the computer operating system again or the system crashed again. He did not hide the files, gave them obvious filenames, and recorded the files in a notebook he clearly labeled "How to Download Files." Lee acknowledged that "it was a security violation for me to make classified tapes outside the fence and to leave the PARD files on the green, open system." But he added that he left the files there "as another backup, for my convenience, not for any espionage purpose."(83) Lee maintained that after he was fired, the files were classified Secret or Confidential, and he did not steal them.
Some Administration officials reportedly said that none of the legacy codes that Lee had transferred to an unclassified computer appeared to have been accessed by unauthorized people. Some said that lab employees wanted to transfer codes to unclassified computers with a better editing program.(84)
Later, there were allegations that on numerous times in 1994, someone at the University of California at Los Angeles (UCLA) used Wen Ho Lee's password to access Los Alamos' computer system via the Internet. Lee's daughter, Alberta, who was majoring in mathematics at UCLA, testified that she accessed the more powerful computer systems at Los Alamos and also at the Massachusetts Institute of Technology to play a computer game called "Dungeons and Dragons."(85)
On March 5, 1999, the FBI interrogated Lee again. On March 7, FBI agents told Lee that the FBI "reinterpreted" the polygraph that DOE gave him on December 23, 1998, and determined he had failed, rather than passed, as he was told at the time.
Lee's case was further complicated by the FBI's reportedly aggressive tactics. A later report said that Lee initially did not comprehend the severity of the government's investigation of him and that he was wholly naive and unprepared for the FBI's intensified interrogation that began on March 5, 1999. Robert Vrooman, then head of counterintelligence at Los Alamos, was listening in another room. He said that he and the agents came away convinced Lee was not a spy. However, someone at the FBI then ordered two agents, Carol Covert and John Podenko, to conduct the "hostile interview" of Lee on March 7, telling him falsely that he had failed the polygraph in December 1998 (when Lee had actually scored highly for honesty), threatened him with arrest, "electrocution," and never seeing his children again, and demanded that he sign a confession of "espionage" with a potential death penalty, all without the counsel of a lawyer. According to Vrooman, Covert was "distraught" after that aggressive interview, because she did not believe Lee was guilty, took three months sick leave, and transferred out of the Sante Fe office.(86)
Lee maintained his innocence throughout the interrogation. Some said that the FBI was unfair and biased in misleading Lee, but others said the aggressive tactics were accepted practice in law-enforcement in trying to elicit confessions. At a hearing in late December 1999, the prosecution conceded that Lee did pass the DOE's polygraph but said that he failed the polygraph given by the FBI in February 1999.(87) Moreover, according to a report, the FBI changed the results of Lee's DOE polygraph, which showed a high degree of truthfulness. Weeks after Lee had passed that test, DOE changed the finding to "incomplete" instead, and the FBI later said that Lee failed the test.(88)
On March 8, Los Alamos fired Wen Ho Lee for "a pattern of disregard for security policies, procedures, and applicable DOE Orders" and "inability to maintain classified information securely."(89) (DOE later changed Lee's status to retired and began to pay him a pension.(90)) After Lee was fired, the FBI also searched his home with a warrant on April 10, 1999.
Around this time in early 1999, the New York Times, Wall Street Journal, and Washington Post reported on alleged spying by China at the Los Alamos lab. Congress was concerned about the investigation.(91)
When he was fired from Los Alamos on March 8, 1999, the government's only suspect was identified publicly as Wen Ho Lee. Secretary Richardson said he fired Lee, because the W88 case became public and Lee allegedly failed a polygraph test in February 1999.(92) Richardson also alleged that Lee failed to notify officials about certain contacts with people in the PRC, to properly safeguard classified material, and to cooperate on security matters.
However, FBI Director Louis Freeh said on March 17, 1999, that this case was "an active investigation. We've not made charges against anybody, so nobody should be accused of anything." The Cox Committee's unclassified report released in May 1999 was careful not to name any suspects.
Answering to Congress. On March 17, 1999, appearing before the Senate Intelligence Committee, Secretary Richardson announced seven initiatives to strengthen counterintelligence at DOE, in addition to PDD-61. Those steps were to
Furthermore, on April 2, 1999, Secretary Richardson ordered the nuclear weapon labs to suspend scientific work on computers that contain nuclear weapon secrets. This step was taken to prevent the possibility that sensitive data would be copied from secure computers and sent electronically through unclassified computers. Richardson acknowledged potential problems, saying that "our computer security has been lax, and I want to strengthen it, and the only way to do that is to stand down." The suspension was ordered in part because Lee was an expert in the computer systems, and an internal review showed that security measures at Los Alamos and Livermore labs were "marginal," while Sandia received a "satisfactory" rating.(94) In September 1999, Richardson reported that Los Alamos improved its security and received a "satisfactory" rating, while Livermore and Sandia got "marginal" ratings.(95)
On May 11, 1999, Energy Secretary Richardson announced further reforms of DOE to increase control over the nuclear weapon labs, including the appointment of a "security czar" who would report directly to the Secretary. One month later, Richardson named retired Air Force General Eugene Habiger, former Commander in Chief of the U.S. Strategic Command, as the Director of a new Office of Security and Emergency Operations.(96) Richardson also planned to consolidate security funds in DOE under one $800 million budget and an additional $50 million over two years to improve computer-related security. Also, there would be greater controls over floppy disk drives that could transfer files out of the classified computer systems, and DOE would require electronic "banners" on government computers warning users that their computers were subject to monitoring.(97) DOE originally requested $2 million for computer security but increased the request to $35 million after the PRC espionage case came to light. However, Congress in September 1999 did not approve the additional request in a conference committee on energy appropriations, and an unnamed Member said the committee wanted to see management reform before approving a large funding increase.(98) In December 1999, Habiger complained that Congress did not provide all the funds he needs to improve security at the labs, but Representative Cox countered that Habiger had not provided Congress with a detailed plan for how the additional millions would be used.(99)
The first official to lose his job as a result of the Los Alamos controversy was Victor Reis, the Assistant Energy Secretary in charge of defense programs since 1993, who resigned on June 25, 1999.(100) Testifying before the House Armed Services Committee on July 14, 1999, Reis acknowledged that he had "some responsibility" for the security problems and he "could have pressed harder" to strengthen security, but asserted that many other officials at DOE and FBI share the blame.(101)
In July 1999, DOE instituted a new policy to require DOE employees with security clearances to report any "close and continuing contacts" with foreigners from the sensitive countries on DOE's list.(102) Also in July, Richardson issued revised procedures to more closely monitor visits and assignments of foreign nationals to DOE's facilities, as part of implementing PDD-61. Lab directors no longer had authority to grant waivers of DOE security requirements, and only the Secretary had authority to approve waivers. Richardson also derided discrimination against Americans of Asian Pacific heritage, saying that the new order only affected foreign citizens, not Americans.(103)
On August 12, 1999, Richardson announced the results of an internal DOE inquiry by the inspector general and ordered that three individuals be disciplined. (See Law Enforcement vs. Security below.)
In October 1999, Richardson decided to narrow the scope of controversial polygraph tests, originally considered for over 5,000 lab employees, so that about 1,000 people working in the most sensitive areas, primarily at the three nuclear weapon laboratories, would be tested. They included nuclear weapon designers, security and counterintelligence officials, employees at nuclear weapon production plants, and political appointees at DOE headquarters.(104) In December 1999, Richardson narrowed the number to about 800 employees who would have to take the lie-detector test.(105)
On December 10, 1999, as directed by Attorney General Reno, the Justice Department arrested and indicted Lee for mishandling classified information -- but not for passing secrets to any foreign government. (See Indictment of Wen Ho Lee.)
On January 7, 2000, Secretary Richardson presented his plan to establish the new NNSA. (See section on the NNSA above.)
Richardson, on January 19, 2000, received the report and recommendations from the Task Force Against Racial Profiling that he had established in June 1999. (See Racial Profiling and Selective Prosecution below.)
On January 25, 2000, Secretary Richardson said that security and counter-intelligence had been dramatically improved, including training for 700 computer systems administrators in cyber-security. DOE security czar, Eugene Habiger, said that it was now almost impossible for lab employees to transfer nuclear secrets from classified to unclassified computer systems.(106) With the tightening of security, however, there were concerns that the tense environment at the labs hurt their scientific mission.(107)
The NNSA began operations as of March 1, 2000. Secretary Richardson directed that about 2,000 DOE employees be realigned to be employees of NNSA.(108)
On May 3, 2000, President Clinton nominated U.S. Air Force General John A. Gordon, Deputy Director of Central Intelligence since November 1997, to be the first Under Secretary for Nuclear Security and administrator of NNSA, a decision announced by Secretary Richardson on March 2, 2000.(109) The Senate confirmed the nomination (by 97-0) on June 14, 2000. Richardson swore in Gordon on June 28, 2000.
Timeliness and Responsiveness. Critics argued that the Clinton Administration was slow to respond to concerns about China and the labs and that DOE officials resisted reforms for years. They said that in November 1996, Charles Curtis (Undersecretary and then Deputy Secretary of Energy from February 1994 to April 1997) ordered new security measures (called the Curtis Plan)(110), but those steps -- including requiring background checks again for all foreign visitors -- were not carried out by the labs nor followed up by DOE officials. They also voiced concerns about related developments reported in the press, specifically that in April 1997, the FBI recommended changes at the labs, including reinstating background checks on foreign visitors, but the DOE did not implement improvements in counterintelligence until after Bill Richardson became Secretary of Energy (in August 1998). In the spring of 1997, DOE had selected the suspect to head a program to update the computer programming used in the stockpile stewardship program that evaluates the performance of nuclear weapons without testing, and he hired a PRC citizen to assist him.(111) Moreover, some critics questioned why the President did not issue PDD-61 until February 1998, although the suspicions that China obtained W88 data arose in 1995 and the FBI made recommendations to tighten counterintelligence measures in April 1997.(112)
The President's Foreign Intelligence Advisory Board (PFIAB), led by former Senator Rudman, reported in June 1999 that "the speed and sweep of the [Clinton] Administration's ongoing response does not absolve it of its responsibility in years past," and "there is some evidence to raise questions about whether its actions came later than they should have." The PFIAB also noted that "the track record of previous administrations' responses to DOE's problems is mixed."(113)
The PFIAB noted that PDD-61 was issued on February 11, 1998, and after Secretary Richardson was sworn in on August 18, he submitted the action plan to the NSC on November 13. However, the DOE's completed implementation plan was delivered to Secretary Richardson on February 3, 1999 and issued to the labs on March 4. The board said that "we find unacceptable the more than four months that elapsed before DOE advised the National Security Advisor on the actions taken and specific remedies developed to implement the Presidential directive, particularly one so crucial." PFIAB further declared that "the fact that the Secretary's implementation plan was not issued to the labs until more than a year after the PDD was issued tells us DOE is still unconvinced of Presidential authority [PFIAB's emphasis]."
On July 2, 1999, House Commerce Committee chairman Tom Bliley and Representative Fred Upton, chairman of the Oversight and Investigations Subcommittee, issued a joint statement one day after receiving a classified briefing on DOE's May 1999 inspection of security measures at Lawrence Livermore. They said that the briefing had been "delayed repeatedly by Secretary Richardson without any legitimate basis." They stated that the inspection found "serious deficiencies" in the areas of computer security, foreign visitor controls and clearances, and protection of nuclear materials. They also questioned why DOE managers failed to detect deficiencies on their own.(114)
Law Enforcement vs. Security. Some critics had additional concerns that the Administration did not act promptly enough or investigated aggressively enough to protect national security, since the prime suspect identified by DOE and the FBI in the W88 case, though not charged with any crime, remained employed at Los Alamos until March 8, 1999. The PFIAB's report stated in June 1999 that "there does not exist today a systematic process to ensure that the competing interests of law enforcement and national security are appropriately balanced."
Although criminal investigations usually require leaving the suspects in place to obtain evidence and assess damage, the suspect was only required to take polygraph tests in December 1998 (conducted by DOE) and in February 1999 (given by the FBI). DOE did not remove him from access to highly sensitive information in the X Division until December 1998(115) and did not dismiss him until March 8, 1999(116), even though the Director of the FBI had informed DOE officials in a meeting on August 12, 1997, that there was not sufficient evidence to warrant keeping the investigation a secret and that denying the suspect continued access to sensitive information may be more important than the FBI's stalled case.(117) In congressional testimony on March 16, 1999, Energy Secretary Richardson confirmed that the FBI began its investigation in 1995, and he asserted that DOE and the FBI worked "extremely cooperatively." Yet, Secretary Richardson acknowledged concerns when he decided to begin an investigation at DOE to determine how the prime suspect retained his access to classified information and his job.(118)
On August 12, 1999, Richardson announced the results of the internal DOE inquiry by the Inspector General into the espionage investigation. Richardson declared, "there was a total breakdown in the system and there's plenty of blame to go around."(119) He said that "the espionage suspect should have had his job assignment changed to limit his access to classified information much sooner than it was, and cooperation with the FBI should have been stronger." He also announced that of the 19 DOE officials identified by the Inspector General as bearing some responsibility for counterintelligence and security, three employees would be disciplined. News reports identified those three individuals as Sig Hecker, former director of Los Alamos from 1986 to 1997 who was still employed as a scientist; Robert Vrooman, former head of counterintelligence at Los Alamos serving as a consultant; and Terry Craig, a former counterintelligence team leader working at a different part of the lab. In addition, former secretary Federico Pena, former deputy secretary Elizabeth Moler, and former deputy secretary Victor Reis reportedly would have been subject to disciplinary action if still employed by DOE.(120)
Wiretaps and Computer Monitoring. Some critics also raised questions about the FBI's case, since it had not conducted electronic surveillance of the suspect or searched his office and home computers earlier in the investigation. Although the government already considered Lee its only suspect, FBI agents did not begin to intensively interrogate him until March 5, 1999(121) and look at his government computers in his office that day. They did not search his home until later in April 1999.(122) Some questioned the Department of Justice's role in not supporting the FBI's requests to electronically monitor him through wiretaps. The FBI said that the Justice Department's Office of Intelligence Policy and Review (OIPR) denied the FBI's applications for electronic surveillance, or wiretaps, of the suspect in August 1997 and in December 1998, because there was insufficient evidence that the suspected espionage activity was current. Because the OIPR did not approve the applications, they did not reach the court established under the authority of the Foreign Intelligence Surveillance Act (FISA).
On May 24, 1999, Reno said that the Justice Department did not authorize intrusions in the lives of American citizens "when, as in this case, the standards of the Constitution and the Foreign Intelligence Surveillance Act (FISA) have not been met." She further explained that "although I was not apprised of the details of the case at the time the decision was made, I have reviewed the decision of the OIPR and fully support it." Also, contrary to some reports, the 1997 request for FISA coverage "did not contain a request to search any computer."(123) At a closed hearing of the Senate Judiciary Committee on June 8, 1999, Attorney General Janet Reno explained that "the FISA application was legally insufficient to establish probable cause."(124) Among the reasons, she said the request focused on the Lees, while "the elimination of other logical suspects, having the same access and opportunity, did not occur."
The PFIAB said that "the Department of Justice may be applying the FISA in a manner that is too restrictive, particularly in light of the evolution of a very sophisticated counterintelligence threat and the ongoing revolution in information systems." The board also questioned "why the FBI's FISA request did not include a request to monitor or search the subject's workplace computer systems."
However, there were competing concerns about protection of civil liberties. As the Washington Post stated, "the Lee case, for example, has been cited as evidence of the need to relax civil liberties protections to make surveillance easier in national security cases. This is a dreadful idea." The Post also cautioned that Lee was "entitled to a presumption of innocence that he has not typically received in public discussions of the matter."(125)
Some expressed concerns that the lack of monitoring over the prime suspect's computer use had grave consequences for securing secrets of U.S. nuclear weapons. Additional reports revealed that Secretary Richardson shut down the lab computers on April 2, 1999, because investigators discovered after obtaining permission to check his computer in March 1999 that he had carried out a possibly significant compromise of computer security affecting nuclear weapons. Critics were concerned that the FBI discovered that the suspect had transferred enormous volumes of files containing millions of lines of highly secret computer codes on nuclear weapon designs (called "legacy codes") from a classified computer to an unclassified computer at Los Alamos. Moreover, they cited as a problem that someone who improperly used a password may have subsequently accessed the files in the unclassified computer.(126) They thought it suspicious that Lee tried to delete some of the classified files.(127) The FBI said that it was not able to obtain a search warrant to search the computer at Los Alamos earlier, because the labs did not place "banners" warning employees that the computers were outside the protection of privacy rights and subject to government monitoring. However, in May 1999, a report said that Lee, in 1995, had indeed signed a routine waiver giving Los Alamos the right to audit his computer use.(128)
Speaking publicly for the first time in his own defense, Wen Ho Lee declared in a television interview on August 1, 1999, that he was innocent of wrongdoing, that he did not disclose nuclear secrets to China or any unauthorized person, and that he transferred the files on weapon data to an unclassified computer to protect the information, which was "common practice" at the labs. Lee also said that he had been made a "scapegoat" in the investigation even though he devoted "the best time of my life to this country," because he was the only Asian American working in the X Division, the group in charge of weapon design at Los Alamos.(129) Others at the lab also described the transfer of computer files between classified and unclassified computers at the labs to have been common practice, particularly after the computer network at Los Alamos split into two networks in December 1994.(130)
On August 5, 1999, Senators Thompson and Lieberman of the Governmental Affairs Committee reported on a bipartisan basis how DOE, FBI, and DOJ may have mishandled the investigation, particularly in communications among them.(131)
In announcing the results of an inquiry by DOE's Inspector General, Richardson confirmed on August 12, 1999, that Lee had signed a computer privacy waiver in April 1995, but a counterintelligence official failed to adequately search lab records and missed the waiver. Thus, the FBI did not know about the waiver until May 1999. Richardson recommended disciplinary action against the official.(132)
On March 8, 2000, Senator Specter, as part of his investigation under the jurisdiction of the Senate Judiciary Subcommittee on Administrative Oversight and the Courts, issued a report critical of the investigation of Wen Ho Lee. The report criticized the FBI's and DOE's investigations as "inept." It also criticized the Department of Justice and Attorney General Janet Reno for not forwarding the FBI's request for a warrant to the FISA court, despite "ample, if not overwhelming, information to justify the warrant."(133)
However, Senator Charles Grassley, chairman of the subcommittee, criticized the FBI for not telling Congress through most of 1999 that the bureau had found that Lee was not the prime suspect in the espionage case at Los Alamos. Senator Grassley said that he, along with Senators Specter and Torricelli, had asked the General Accounting Office to examine whether a senior FBI official (believed to be Neil Gallagher, head of the National Security Division) had withheld documents from Congress in 1999. (The FBI then asked that the investigation be suspended after Wen Ho Lee's indictment.) Senator Grassley sent a letter to Senator Specter that disputed his report, saying that the evidence against Lee was weak.(134)
Scope of Investigation. The scope of the investigation was another issue. Reports said that the investigation in the W88 espionage case (originally code-named "Kindred Spirit") prematurely narrowed in on one lab (Los Alamos) and one suspect (Wen Ho Lee). In June 1999, the PFIAB's report criticized the Administration's investigation as focusing too narrowly "on only one warhead, the W88, only one category of potential sources -- bomb designers at the national labs -- and on only a four-year window of opportunity." The investigation, the PFIAB said, "should have been pursued in a more comprehensive manner."(135) The FBI reportedly had just one or two agents assigned to the case in 1996, increased the number of agents to three or four in 1997, and assigned 40 agents by mid-1999.(136)
Acknowledging concerns about how the W88 case was handled, Attorney General Reno said on May 6, 1999, that the Justice Department would establish a panel of FBI agents and federal prosecutors to conduct an internal review of the investigation of Wen Ho Lee.(137) Then, on September 23, 1999, Attorney General Janet Reno and FBI Director Louis Freeh announced that the government had expanded its investigation to conduct a more thorough examination of evidence and possible alternative sources of information, including military facilities and defense contractors.(138) The FBI reportedly began this expanded espionage investigation in April 1999 and gave it the code-name "Fall-out."(139)
Significantly, a report said that as early as January 1999, two months before Wen Ho Lee's arrest, the FBI doubted that he was the source of the PRC's information on the W88 nuclear warhead. The FBI's field office in Albuquerque, NM, wrote a memo to headquarters on January 22, 1999, questioning whether Lee was the prime suspect in the W88 case (code-named "Kindred Spirit"), in part because he passed the December 1998 polygraph test. An earlier memo, written on November 19, 1998, from the Albuquerque office to FBI headquarters had stated that investigators would look into 10 other people who had been named as potential suspects in DOE's administrative probe. However, Senator Arlen Specter, at whose hearing the documents emerged, dismissed those doubts about Lee being the prime suspect, saying that FBI agents were "thrown off" course by the 1998 polygraph.(140)
By November 1999, the FBI reportedly obtained new evidence that China acquired information about U.S. nuclear weapons from a facility that assembles those weapons. The evidence apparently stemmed from errors in the PRC intelligence document said to contain a description of the W88 warhead. The errors were then traced to one of the "integrators" of the weapons, possibly including Sandia National Lab, Lockheed Martin Corporation (which runs Sandia), and the Navy.(141)
On May 16, 2000, Attorney General Janet Reno reportedly was briefed on the classified, four-volume report of the Justice Department's internal review of its handling of the original investigation. The review by federal prosecutor Randy Bellows reportedly said that the FBI mishandled the espionage probe, in part because of internal turf wars, by not acting sooner, not committing enough resources sooner, and prematurely focusing on Wen Ho Lee as the only prime suspect. The report was said to state that the government could have discovered Lee's downloading of computer files years earlier, since he had signed a privacy waiver and a court order was not required.(142) FBI agents acknowledged multiple mistakes in the investigation of Wen Ho Lee.(143) New details about Bellows' report emerged in August 2001, when the Washington Post said that the report contained extensive criticisms of the FBI, its field office in Albuquerque, DOE, and the Justice Department's OIPR. Bellows found that DOE made "misleading representations" about Wen Ho Lee in a 1995 report that prompted the FBI's investigation and that the FBI spent "years investigating the wrong crime."(144)
In October 2000, it was reported that the investigation had shifted significantly to examine the Pentagon and its facilities and contractors, after intelligence agencies concluded that PRC espionage acquired more classified U.S. missile technology, including that on the heat shield, than nuclear weapon secrets. Difficulties in translating 13,000 pages of secret PRC documents resulted in this delayed finding. The Pentagon then decided to hire 450 counter-intelligence experts.(145)
Indictment of Wen Ho Lee. Former Los Alamos scientist Wen Ho Lee's criminal case was a result of, but did not solve, the government's investigation of whether the PRC obtained W88 secrets by espionage (the original probe called "Kindred Spirit" and the expanded investigation called "Fall-out"). By November 1999, the Justice Department reportedly was not planning to charge Lee with espionage, because there was no evidence that he passed nuclear weapon secrets to China or another country.(146) On December 4, 1999, the top law-enforcement, security, and DOE officials held a meeting at the White House on whether to indict the prime suspect. Attorney General Janet Reno, National Security Advisor Sandy Berger, Energy Secretary Bill Richardson, FBI Director Louis Freeh, DCI George Tenet, and U.S. Attorney John Kelly attended.(147)
By December 1999, the FBI completed the specific investigation that focused on Lee's transfers of computer files, which were discovered just before he was fired in March 1999, after which, FBI agents later searched his home in April 1999. The case was presented to a federal grand jury in Albuquerque, N.M. On December 10, 1999, as directed by Attorney General Reno, the Justice Department arrested and indicted Lee for allegedly "mishandling classified information" -- but not for passing secrets to any foreign government(s).(148) Lee was charged with violations of the Atomic Energy Act, including unlawful acquisition and removal of Restricted Data,(149) that carry a maximum penalty of life imprisonment.(150) The charges included the "intent to injure the United States" or "to secure an advantage to any foreign nation." Furthermore, Lee was charged with violations of the Federal Espionage Act, including unlawful gathering and retention of national defense information, that carry a maximum penalty of imprisonment for ten years.(151)
Specifically, the 59-count indictment alleged that Lee knowingly downloaded and removed from Los Alamos extensive "classified files" relating to the design, manufacture, and testing of nuclear weapons. The investigation, which included holding over 1,000 interviews and searching more than 1,000,000 computer files, found that Lee transferred files to 10 portable computer tapes and that seven of the tapes were unaccounted for. The government charged that Lee, in 1993 and 1994, transferred Restricted Data on nuclear weapon research, design, construction, and testing from the classified computer system to an unsecure computer at Los Alamos, and then later downloaded the files to nine tapes. As recently as 1997, Lee allegedly downloaded current nuclear weapon design codes and other data directly to a 10th tape. These simulation codes are used to compare computer calculations with actual nuclear test data.
Four hours before the indictment, Lee's lawyer faxed a letter to the U.S. Attorney, saying that Lee wanted to take another polygraph and to provide "credible and verifiable" information to show that "at no time did he mishandle those tapes in question and to confirm that he did not provide those tapes to any third party."(152)
At a hearing in Albuquerque, N.M., on December 13, 1999, Wen Ho Lee pleaded not guilty to the charges. Without elaboration, his defense attorneys maintained that the seven tapes had been destroyed and that there was no evidence that Lee had the tapes or had disclosed or attempted to disclose the tapes. Lee was ordered to be held in jail without bail, until his trial, despite his attorneys' offer to post $100,000 bond and place Lee on electronic surveillance at his home.(153) Lee was then held in solitary confinement, placed in shackles for a significant time period, and denied outdoor exercise. Lee's trial was set to begin on November 6, 2000.
Meanwhile, on December 20, 1999, Wen Ho Lee and his wife filed a lawsuit against the Departments of Energy and Justice and the FBI for alleged violations of the Privacy Act of 1974. The Lees charged that, since at least early 1999, the government made numerous intentional, unauthorized disclosures about them, causing them to be unfairly and inaccurately portrayed in the media as PRC "spies."(154) (After being freed under a plea agreement in September 2000, Lee's lawyers indicated that he intended to continue the civil lawsuit.(155))
In April 2000, Lee's attorney revealed that, in 1999, only after Lee was fired, the government re-assigned a higher security classification to the computer files that Lee was charged with downloading. At the time that Lee downloaded the files, they were not classified information, but considered "Protect As Restricted Data (PARD)," a category of security assigned to voluminous and changing scientific data, not a security classification of Secret or Confidential, as the indictment charged. Both sides were said to agree that the government had changed this classification after the downloading, as shown in the prosecution's evidence. While Lee's defense attorney argued that the indictment was "deceptive," the Justice Department contended that Lee took the "crown jewels" of U.S. nuclear weapon secrets. Lee's lawyers also found that PARD's security ranking was five on a scale of nine, the highest being secret restricted data.(156) (In October 2001, the government set up a new category of classification for nuclear weapons design data, called Sigma 16.)(157)
Lee's defense team requested, in May 2000, that the prosecution name the foreign nation(s) that Lee allegedly sought to help, saying that it was unfair of the government not to name the countries in charging Lee.(158) The federal judge in New Mexico then ordered the prosecution to disclose the foreign nation(s) by July 5, 2000.(159) On that date, the U.S. Attorney filed a document that named eight foreign governments that Lee may have sought to help in downloading the nuclear data. Those places named were: the PRC, Taiwan, Australia, France, Germany, Hong Kong, Singapore, and Switzerland, places (except for the PRC) where Lee allegedly had expressed an interest in applying for work in 1993, when he supposedly feared losing his job at Los Alamos.(160) In his 2001 book, however, Lee wrote that he did not download backup copies of his files onto tapes because he might have to find a new job. He made the tapes to protect his files with backup copies, particularly by keeping his codes safe in a version that could be reconstructed if necessary.(161)
Another issue for the Administration and the prosecution was how much of the classified information to release publicly as evidence. Secretary Richardson was responsible for part of the decision, based on recommendations from his new security czar.(162) On August 1, 2000, U.S. District Judge James Parker ruled in favor of Lee's defense, requiring that the government publicly explain to a jury the nuclear secrets Lee allegedly downloaded, including any flaws in the tapes (which would not help any possible recipients of the information).(163)
In August 2000, a dramatic turn of public events began, favoring Lee's defense and his release. At a hearing to secure release for Lee on August 16-18, 2000, a top nuclear weapons expert, John Richter, countered the prosecution's case, testifying that 99 percent of the information that Lee downloaded were publicly available. Also according to Richter, even if a foreign government obtained the information, there would be no "deleterious effect" on U.S. national security, because other governments cannot build the sophisticated U.S. nuclear warheads based on computer simulation codes downloaded by Lee. Richter testified that the "crown jewels" of U.S. nuclear weapons secrets were not the simulation codes that Lee downloaded, but the data from over 1,000 nuclear tests. Richter also said that he wanted Lee acquitted and that a foreign power could use the codes to help design nuclear weapons but not a complete design. At the same hearing, Lee's defense attorneys also argued that FBI Special Agent Robert Messemer gave false testimony about Lee's alleged deception at the first hearing on his bail in December 1999. Messemer admitted that he gave inaccurate testimony (as an "honest mistake") and that Lee did not lie to a colleague (Kuok-Mee Ling) about writing a "resume," but Messemer argued that the error was not meant to mislead the court.(164)
The hearing produced a major victory for Lee's defense on August 24, 2000, when U.S. District Judge James Parker reversed his decision from eight months earlier and ruled that Lee may be released on bail to be kept under strict supervision at home. Judge Parker's ruled that the government's argument to keep Lee in jail "no longer has the requisite clarity and persuasive character."(165) Family, neighbors, and friends planned a reception for Lee but had to repeatedly postpone it.
After a hearing on August 29, 2000, on the conditions of Lee's release, the judge ruled that Lee can be released on $1 million bail and with tight restrictions at home, with a three-day stay for the prosecution to search his house, consult with the Justice Department, and prepare for a possible appeal. The restraints would include electronic monitoring of Lee, surveillance of his phone calls and mail, and restrictions on visitors, including his daughter and son. However, the government argued, unsuccessfully, that restrictions should also cover Lee's communications with his wife, Sylvia.(166) Lee's family and friends offered over $2 million in their own assets for Lee's bail.
In an opinion dated August 31, 2000, Judge Parker discussed at length new revelations in the case that warranted his granting of release on bail after over eight months. He said, "while the nature of the offenses is still serious and of grave concern, new light has been cast on the circumstances under which Dr. Lee took the information, making them seem somewhat less troubling than they appeared to be in December." He noted, among many points, that top weapons designers testified that the information Lee downloaded was less sensitive than previously described; that FBI Agent Robert Messemer "testified falsely or inaccurately" in December 1999 about Lee; that the government had an alternative, less sinister theory that Lee sought to enhance prospects for employment abroad; that the government never presented direct evidence that Lee intended to harm the United States; that family, friends, and colleagues supported Lee's character; and that what the government had described as the "crown jewels" of the U.S. nuclear weapons program "no longer is so clearly deserving of that label."(167)
Meanwhile, several groups of scientists wrote to express concerns about what they considered unfair treatment of Lee. For example, on August 31, 2000, the National Academy of Sciences, National Academy of Engineering, and the Institute of Medicine wrote to Attorney General Janet Reno expressing concerns that Lee "appears to be a victim of unjust treatment" and "the handling of his case reflects poorly on the U.S. justice system."(168)
Then, very shortly before Lee's scheduled release on bail on September 1, 2000, the 10th U.S. Circuit Court of Appeals ordered a temporary stay of Lee's release, pending a hearing. Soon after, the U.S. Attorney filed a formal request, saying that Lee's release would pose "an unprecedented risk of danger to national security."(169)
Lee's Plea Agreement. Then, on September 10, 2000, the prosecution and defense revealed that they had negotiated a plea agreement, under which Lee would plead guilty to one felony count of unlawful retention of national defense information, help the government to verify that he destroyed the seven tapes (as he maintained), and the government would drop the other 58 counts and free Lee (with sentencing to the nine months he already served in jail). U.S. Attorney General Janet Reno and FBI Director Louis Freeh reportedly approved the plea agreement, which had been negotiated over the previous several weeks.(170) At times citing the Judge's rulings, Lee's defense, some reporters, and critics said that the prosecution's case had crumbled and represented a gross injustice that threatened the rights of all Americans because of politics. However, the prosecution and Clinton Administration officials argued that Lee's downloading of files was unlawful and finding out what happened to the computer tapes was more important than proceeding to trial.
After three days of delays, the prosecution and defense reached final agreement on the plea. On September 13, 2000, Wen Ho Lee pleaded guilty to one felony count of unauthorized possession of defense information (downloading files to tapes using an unsecure computer). The judge sentenced Lee to 278 days in jail (the nine months Lee already endured) and freed him. Lee agreed to answer questions for 10 days over three weeks starting on September 26, 2000. The government retained the options of prosecuting Lee, giving him another polygraph test, and nullifying the plea agreement if the government suspected Lee of lying. Both sides agreed to withdraw pending motions, including that of the defense on selective prosecution.
In a dramatic conclusion to the case, Judge Parker noted "the fact that [Lee] lost valuable rights as a citizen" and apologized to Lee for the "unfair manner [he was] held in custody." Parker said that he found it "most perplexing" that the government now "suddenly agreed" to Lee's release, despite its earlier warnings of risks to national security. The judge blamed the Executive Branch, particularly top officials of the Departments of Energy and Justice, saying they "embarrassed our entire nation and each of us who is a citizen of it."(171) As a result of the Judge's remarks, Attorney General Reno launched two internal reviews of the prosecution of Lee.(172)
Moreover, President Clinton criticized the pre-trail detention of Lee, saying "I always had reservations about the claims that were being made denying him bail."(173) (See also Role of the White House below.)
In response, U.S. Attorney Norman Bay argued that the case was about "a man who mishandled huge amounts of nuclear data and got caught doing it." He added that justice was served because Lee must "tell us what he did with the tapes ... something he refused to do for approximately the past 18 months."(174) Attorney General Reno said that the agreement was "in the best interest of our national security in that it gives us our best chance to find out what happened to the tapes."(175) FBI Director Louis Freeh stated that it was four weeks before the plea agreement -- even before the last bail hearings -- that the plea bargaining began and that "determining what happened to the tapes has always been paramount to prosecution."(176)
Later, it was revealed that the delay in the plea agreement resulted from Lee's disclosure on September 11, 2000 that he had made copies of some or all of the tapes and revisions to the agreement to cover information about the copies.(177)
As part of his plea agreement, Lee (by now considered by DOE to be retired, not fired), agreed to answer questions for up to 10 days about what happened to the tapes. The questioning began on October 17, 2000.(178) On November 7, Lee agreed to 13 more hours of questioning over two days, beginning on December 11, 2000.(179) Meanwhile, in late November and early December 2000, FBI agents searched a public landfill in New Mexico, trying to find the tapes that Lee said he threw away in January 1999, but they reportedly could not locate them.(180)
In early 2001, the New York Times published an extensive review of its own reporting on Wen Ho Lee's case, in response to criticisms of its reporting of Lee. The New York Times concluded that its review "showed how, in constructing a narrative to fit their unnerving suspicions, investigators took fragmentary, often ambiguous evidence about Dr. Lee's behavior and Chinese atomic espionage and wove it into a grander case that eventually collapsed of its own light weight."(181)
In a speech given in May 2001, Senator Shelby, chairman of the Senate Intelligence Committee, discussed alleged "espionage against the Department of Energy and U.S. nuclear weapons programs" by China and stated that "extensive investigations into the compromise of U.S. nuclear weapons information have failed to resolve all the key questions." Still, he said, "that there was espionage, there is no doubt. ... What is not yet known is how, and from whom, the Chinese got this information." He also defended the case against Lee, saying that "while the investigation and prosecution of Wen Ho Lee that emerged from the W88 investigation have been widely criticized, we should not lose sight of the facts. Dr. Lee illegally, purposefully, downloaded and removed from Los Alamos massive amounts of classified nuclear weapons information..."(182)
Sylvia Lee and Cooperation with the FBI. A number of other issues complicated the case on Wen Ho Lee. One issue was the relationship between the FBI and the suspect and his wife, Sylvia Lee. Contrary to earlier reports that a trip the Lees took to China in the 1985 was suspicious because Mrs. Lee, a secretary, was the one invited to speak, she reportedly had been informing on PRC visitors for the FBI from 1985 to 1991 and Los Alamos had encouraged her to attend the conference.(183) The press reported in July 2000 that Sylvia Lee reported on visiting PRC scientists for the CIA in the 1980s, and Wen Ho Lee also met with the CIA officer who worked with his wife before the Lees visited the PRC in 1986.(184)
In addition, Wen Ho Lee helped the FBI in the "Tiger Trap" case and passed a polygraph in 1984. Lee helped the FBI after he had made an intercepted call, in 1982, to another scientist at Lawrence Livermore lab who was under suspicion of espionage. In his book, Lee wrote that he called the scientist after reading a newspaper article about his dismissal from Livermore for trips to China and Taiwan. Because the fired scientist was also born in Taiwan, like Lee, and Lee was planning a lab-approved visit to Taiwan, he wanted to find out the nature of the troubles and avoid them.(185)
DCI John Deutch's Case and Pardon. Another issue complicating Lee's case was the government's decision not to prosecute former DCI John Deutch. There was a debate about whether Deutch's case was analogous to Lee's. Some said that the treatment of Lee was unfair and there was a double-standard, but others argued that the two people had different alleged intentions. The CIA investigated Deutch (DCI in 1995-1996) for repeatedly mishandling classified information and moving many classified intelligence files to his unsecured personal computers in his house, computers used to access the Internet and thus vulnerable to attacks. The files reportedly included 17,000 pages of documents, including Top Secret materials and files about presidentially-approved covert action. Further, the CIA was said to have reported that Deutch may have tampered with evidence allegedly showing his improper handling of classified files, including, on December 20, 1996, trying to delete over 1,000 classified files stored on one of four portable memory cards. Additional reports disclosed that the CIA's inspector general's classified report concluded that top CIA officials impeded the agency's investigation of Deutch, possibly to allow the time limit on appointing an independent counsel to lapse, and that DCI George Tenet set up a special panel to examine those findings.
The CIA's investigation of Deutch began in December 1996, when he was leaving office. The CIA did not notify the Justice Department until early 1998. The Senate Intelligence Committee was notified of the case in June 1998. The Justice Department decided in April 1999 not to prosecute, apparently without any FBI investigation and before the CIA inspector general issued its report. After the inspector general's report was completed in July 1999, the current DCI, in August 1999, suspended Deutch's security clearance indefinitely. According to the CIA's announcement, the inspector general concluded that while no evidence was found that national security information was lost, "the potential for damage to U.S. security existed." The Senate Intelligence Committee received a copy of the inspector general's report in late August 1999.(186)
On February 18, 2000, the CIA's inspector general released an unclassified report of its investigation into Deutch's case.(187) The report found, among other findings, that Deutch had processed classified information on unsecure computers that were connected to the Internet and thus were "vulnerable to attacks by unauthorized persons." Moreover the information concerned covert action, Top Secret communications intelligence, and the National Reconnaissance Program budget. The report concluded that despite Deutch's knowledge of prohibitions against processing classified information on unclassified computers, he "processed a large volume of highly classified information on these unclassified computers, taking no steps to restrict unauthorized access to the information and thereby placing national security information at risk." The report also criticized "anomalies" in the way senior CIA officials responded to the problem.
Reportedly concerned about the appearance of unfairness in comparisons between the cases involving Wen Ho Lee and John Deutch, Attorney General Janet Reno announced on February 24, 2000, that her department would review Deutch's case.(188) Then, by May 2000, the Justice Department and the FBI began a criminal investigation of whether Deutch had mishandled classified information -- in a reversal of Reno's 1999 decision not to prosecute.(189) By August 2000, the former prosecutor whom Reno asked to review the case, Paul Coffey, reportedly decided to recommend that the Justice Department prosecute Deutch, but Reno was to make the final decision.(190) By September 2000, the Senate Intelligence Committee met in closed session with DCI Tenet on Deutch's case, and Coffey reportedly considered a recommendation to charge a misdemeanor against Deutch for taking classified information home without authorization.(191)
At the beginning of 2001, as the Clinton Administration neared its end, John Deutch reportedly negotiated an agreement with the Justice Department to plead guilty to a misdemeanor. However, on January 20, 2001, President Clinton pardoned Deutch, preempting the plea agreement that he had signed the night before and surprising Special Prosecutor Paul Coffey and DCI George Tenet. Deutch reportedly faced a $5,000 fine and no prison time. The chairmen of the House and Senate Intelligence Committees, Representative Porter Goss and Senator Richard Shelby, criticized the pardon for sending the wrong message. Senator Shelby also lamented that "Deutch essentially walked away from what is one of the most egregious cases of mishandling of classified information that I have ever seen short of espionage."(192)
In an August 2001 report, the Senate Intelligence Committee said that it began its own inquiry into Deutch's case in February 2000. The report said that "the Committee confirmed that Mr. Deutch's unclassified computers contained summaries of sensitive U.S. policy discussions, references to numerous classified intelligence relationships with foreign entities, highly classified memoranda to the President and documents imported from classified systems." It stated that Deutch displayed a "reckless disregard for the most basic security practices required of thousands of government employees throughout the CIA and other agencies of the Intelligence Community."(193)
Notra Trulock. The resignation of Notra Trulock, DOE's primary investigator, in August 1999 was another complication in the investigation. As the Washington Post wrote, "Mr. Trulock may well have stated the overall problem in terms more dramatic than the evidence clearly supported. And his single-mindedness with respect to Los Alamos and Mr. Lee in particular -- which is alleged by some detractors to have been related to Mr. Lee's ethnicity -- also may have closed off significant investigative leads."(194) In turn, Trulock blamed the FBI for mishandling and delaying the W88 case.(195)
Racial Profiling and Selective Prosecution. There were concerns that, in rightfully protecting national security, racial profiling and selective prosecution were used in law-enforcement and that Lee, as an American entitled to a presumption of innocence, was unfairly targeted as the prime suspect in a narrow investigation and in media reports because of his Chinese ethnicity (even though he was born in Taiwan).(196) Aside from the implications of these issues for Lee's case, these issues raised questions about the effectiveness of the government's approach in countering PRC espionage in general and in investigating the W88 case in particular.
In his public statement on "60 Minutes" on August 1, 1999, Lee said he believed he was being made a scapegoat by investigators, because he was the only Asian American working on nuclear weapon designs in the sensitive X Division at Los Alamos in the past 18 years. Ed Curran, head of counterintelligence at DOE, was quoted on the same show as expressing concern that "since Wen Ho Lee has not been proven guilty of anything and thus must be presumed innocent, the surfacing of his name has been devastating to his family and to his life."
The National Asian Pacific American Legal Consortium wrote a letter to Secretary Richardson on August 5, 1999, denouncing his accusation that Lee used the "race card" and expressing concerns about racial profiling. On August 10, 1999, the Committee of 100, an organization comprised of prominent Americans of Chinese descent, sent a letter to Attorney General Reno and Secretary of Energy Richardson expressing concerns about "selective investigation" based on Lee's ethnicity. The letter said, "Dr. Lee and the nation deserve a case made on the merits of a thorough and professional investigation, not a racist witchhunt." The Coalition of Asian Pacific American Federal Employee Organizations (CAPAFEO) presented a position paper to President Clinton on September 30, 1999, which urged the Administration "to take strong and effective measures to protect the rights and civil liberties of Americans of Asian descent by vigorously enforcing our nation's laws which prohibit discrimination based on race of national origin." The group wrote that "while law enforcement and counter-intelligence agencies must be ever vigilant, in their zeal, they must also be careful to safeguard the civil and employment rights of all Americans."(197)
In August 1999, Robert Vrooman, former head of counterintelligence at Los Alamos, publicly said that Wen Ho Lee was targeted because he is an American of Chinese descent and that the case against "was built on thin air." Vrooman issued his comments after Secretary Richardson recommended disciplinary action against him and two other former Los Alamos officials for alleged mishandling of the counterintelligence investigation. Vrooman said that "Lee's ethnicity was a major factor" in targeting him, while "a lot of Caucasians" were not investigated. Vrooman also said that a detailed description of the W88 warhead was distributed to 548 recipients throughout the government, military, and defense companies, so the information could have leaked from many sources.(198) Two others who were involved in the investigation, Charles Washington and Michael Soukup, also said that Lee was singled out as a suspect because of his ethnicity, not because of evidence.(199)
As published in Lee's 2001 book, Vrooman earlier had written a letter to Senator Conrad Burns on May 11, 1999. Vrooman wrote that "the single distinguishing feature of the [administration inquiry done by Mr. Trulock's staff at DOE] that identified Lee was the complete lack of evidence that he committed espionage. ... Ethnicity was a crucial component in identifying Lee as a suspect. Caucasians with the same background as Lee were ignored."(200)
A news report said that Notra Trulock, who wrote the administrative inquiry and led the investigation until the summer of 1996, had compiled a list of 70 people at Los Alamos who visited China and then narrowed the list to 12 people. He said he give the list to the FBI, which then eliminated the other 11 suspects, leaving Wen Ho Lee as the prime suspect. The initial list of 70 people included those with no access to classified or weapons information and who traveled to China on non-work related trips. One Caucasian scientist, however, who was a specialist in the same field as Lee (hydrodynamics), worked on classified information, and went to China on a professional trip, was not among the 12. Further, Robert Vrooman said that there were 15 people who conducted nuclear weapons research and visited China, but were not on the list of 12 suspects.(201)
Notra Trulock, who headed the counterintelligence investigation at DOE, insisted that "race was never a factor."(202) The DOE investigator who focused on Lee, Daniel Bruno, said on November 1, 2000, that Lee was the prime suspect because of his behavior, not because of his ethnicity.(203)
Senators Thompson and Lieberman, whose Governmental Affairs Committee reviewed the investigation, wrote on August 26, 1999, that "the evidence we have seen and heard provides no basis for the claim that the initial DOE-FBI inquiry focused upon the Lees because of their race. Only much later in the process, once Mr. Lee had already been identified as the chief suspect, did the investigation consider the Lees' ethnicity -- and then only because, according to FBI counterintelligence experts, Beijing's intelligence actively tries to recruit Chinese American scientists working in sensitive U.S. facilities."(204) One of these experts, Paul Moore, who headed the FBI's counterintelligence efforts against China from 1978 to 1998, wrote publicly that "Chinese Americans are subjected to oppressive ethnic intelligence profiling" by China and that "China's espionage methodology, not a particular spy, is the main threat." He stressed the PRC's "unconventional" espionage by saying that "China doesn't so much try to steal secrets as to try to induce foreign visitors to give them away by manipulating them into certain situations."(205)
Others argued that even if the PRC targets ethnically Chinese people, the government should not target Americans of Chinese heritage as a group, nor would such targeting be effective to counter PRC espionage. The policy director of Chinese for Affirmative Action and an associate professor of law at Howard University wrote that Lee's case "raised disturbing allegations that the government uses a racial profile when investigating espionage" and argued that "law enforcement based on racial profiling is also ineffective."(206) Former Ambassador to China James Lilley wrote, "the fact that China tries to recruit spies doesn't mean that Chinese-Americans as a group should be suspect."(207) In his statement in support of Wen Ho Lee's motion for discovery of materials related to selective prosecution, Charles Washington, a former Acting Director of Counterintelligence at DOE, declared that he was not aware of any "empirical data that would support a claim that Chinese-Americans are more likely to commit espionage than other Americans."(208)
Members of Congress expressed concern about possible racial profiling used in the investigation of Wen Ho Lee and ramifications of this case on Americans of Asian Pacific heritage. In May 1999, Representative Wu introduced H.Con.Res. 124 to express the sense of Congress relating to the allegations of espionage and illegal campaign financing that brought into question the loyalty and probity of Americans of Asian ancestry. Among other provisions, the resolution called upon the Attorney General, Secretary of Energy, and the Commissioner of the Equal Employment Opportunity Commission to vigorously enforce the security of America's national laboratories and investigate all allegations of discrimination in public or private workplaces. The House passed H.Con.Res. 124 with the bipartisan support of 75 cosponsors, on November 2, 1999. Moreover, on August 5, 1999, Senator Feinstein introduced S.Con.Res. 53 to condemn prejudice against individuals of Asian and Pacific Island ancestry in the United States. The Senate passed the resolution on July 27, 2000. The Congressional Asian Pacific Caucus held a briefing on October 5, 1999, at which Secretary Richardson and others testified. Chairman Robert Underwood said in his opening statement that "suspicions about a Chinese American connection to espionage have formed without evidence and with potential damage to innocent individuals."(209)
Energy Secretary Richardson declared that "while U.S. national security is a top priority at the labs, I am also concerned that Asian Pacific Americans as a group are finding their loyalty and patriotism questioned in the wake of recent espionage allegations. This behavior is unacceptable and I will not tolerate it."(210) In June 1999, Richardson established a Task Force Against Racial Profiling, and he received its report and recommendations on January 19, 2000.(211) The task force included 19 government employees, contractors, and U.S. Civil Rights Commissioner Yvonne Lee. In their visits to various DOE sites, they found that "an atmosphere of distrust and suspicion was common." Such a hostile work environment for Americans of Asian heritage resulted from the media exploitation of the espionage and related allegations, and from managers and co-workers questioning the loyalty and patriotism of some employees based on race. The task force made a number of recommendations for using leadership, building trust, improving communication, and making assessments.
In 1999, the Equal Employment Opportunity Commission (EEOC) began an investigation into whether the Livermore and Los Alamos labs discriminated against Americans of Asian Pacific heritage.(212)
In August 2000, supporting their selective prosecution motion filed in June 2000, Lee's defense attorneys had statements from two former senior DOE counter-intelligence officials, Robert Vrooman and Charles Washington, contending that Lee was a victim of racial profiling and selective prosecution, including in the probe led by Notra Trulock. Finding relevance to Lee's contention that he was singled out for investigation and prosecution because of his ethnicity, Judge James Parker, on August 25, 2000, ordered the government to hand over documents, sought by the defense, to him by September 15, 2000, for his review and decision as to whether they should be given to the defense attorneys.(213) However, on September 13, 2000, when the government and Wen Ho Lee reached a plea agreement, they also agreed to withdraw pending motions. Responding to charges of selective prosecution after Lee's release, U.S. Attorney Norman Bay, who is an American of Asian heritage, said that "Mr. Lee was not prosecuted because of his race, he was prosecuted because of what he did. He compiled his own personal library of nuclear secrets ... This is a case about a man who mishandled huge amounts of nuclear data and got caught doing it."(214)
In May 2001, racial profiling at DOE even targeted a Member of Congress. Security at DOE prevented Representative David Wu from entering DOE headquarters to speak in commemoration of the Asian Pacific American Heritage Month, even after Wu responded to repeated questioning about his citizenship and presented his congressional identification. Representative Cox wrote a protest letter to Energy Secretary Spencer Abraham and pointed out that upon using the same entrance to the building recently, he was not asked any questions about citizenship. Cox also wrote that "particularly in light of President Bush's initiatives to stamp out racial profiling, I urge you to take swift action to professionalize the DOE bureaucracy so that such an embarrassment to the Department never occurs again."(215) Representative Lucille Roybal-Allard stated that Members of the House were "appalled" about this incident and noted that DOE security also denied entry to Wu's Asian American staffer, although he, too, presented his congressional identification card.(216) On June 26, 2001, the Committee on Appropriations issued a report (H.Rept. 107-112) to accompany the FY2002 energy appropriations bill, in which the committee expressed concern about DOE using citizenship as a security screening tool. The report noted the "recent alarming incident" in which "admittance to DOE headquarters was refused to a Chinese-American Member of Congress."
Partly released in August 2001, a review of the Justice Department's handling of Wen Ho Lee's case (as ordered by Attorney General Janet Reno in May 1999) concluded in May 2000 that while the investigation suffered many flaws, "racism was not one of them." The report by federal prosecutor Randy Bellows reportedly said that "recent allegations of racial bias in the selection of Wen Ho and Sylvia Lee are without merit." Still, the report found that "Wen Ho and Sylvia Lee should never have been the sole suspects" and that DOE "converted the [initial probe] from a broad identification of potential suspects to a virtual indictment of Lee" while the FBI later ignored other leads.(217) In response to that internal review, the Organization of Chinese Americans countered that "it is hard to believe the claim that discrimination based on race and national origin is not a problem at the Department of Energy" and called for an independent review.(218)
Taiwan. There was a theory, that if Wen Ho Lee provided U.S. nuclear weapon information to a third-party, it was not to the PRC, but to Taiwan, where he was born.(219) In 1998, after having allegedly downloaded files to portable computer tapes in 1993, 1994, and 1997, Lee reportedly worked in Taiwan as a consultant to the Chung Shan Institute of Science and Technology, a vast military research and development organization. During a visit to Taiwan in December 1998, Lee was said to have dialed up the main computer at Los Alamos and used his password to access the classified nuclear files he had downloaded. Lee's trips to Taiwan were approved at Los Alamos, reported the Washington Post at the end of 1999.(220) On July 5, 2000, as discussed above, the U.S. Attorney filed a document that named eight foreign governments that Lee may have sought to help in downloading the nuclear data. Those places named were: the PRC, Taiwan, Australia, France, Germany, Hong Kong, Singapore, and Switzerland, places (except for the PRC) where Lee allegedly had an interest in applying for work in 1993, when he supposedly feared losing his job at Los Alamos.(221)
Despite these earlier reports, investigators told the Washington Post after interrogations in November and December 2000 that there were "new questions" about Lee's contacts with Taiwan, that they did not know until the questioning that Lee, in 1998, reportedly received $5,000 from the Chung Shan Institute for consulting work over six weeks and reportedly failed to report the fee to the Los Alamos lab.(222) In his book, Lee maintained that the Los Alamos lab "knew about and approved my consulting work, which was commonly done by lab scientists." Lee also wrote that his bank account in Taiwan was set up to help his sister and never contained more than $3,000.(223)
China's Own Research. Further complicating the case was the debate over the relative importance of the PRC's own modernization efforts as opposed to foreign technology acquisitions. Some said that the investigation overstated the importance of PRC espionage.(224) Harold Agnew, former director of Los Alamos who oversaw the design of the W88 warhead decades ago, wrote a letter to the Wall Street Journal in May 1999. He argued that "those who are screaming the loudest in Washington have little knowledge or understanding with regard to the issues at hand. The Chinese nuclear establishment, most of whom have studied in the West, are extremely competent." He added that "being able to actually use information from any of the national laboratories' codes requires a great deal more knowledge than following a cake recipe. It's even questionable as to whether the Chinese computers are compatible with the weapon codes at our national laboratories. ... The design of the W88 ... is actually quite old. ... Having a computer printout as I remember them would give the general idea, but actually being able to manufacture the total system from a computer code is a different matter. No national would ever stockpile any device based on another nation's computer codes."(225)
As discussed above, in May 2001, the press began to report on an unpublished book by Danny Stillman, a former scientist at Los Alamos, who decided to sue the government to allow him to publish a manuscript about his experience in exchanges between U.S. and PRC nuclear weapons scientists in the 1990s.(226) Stillman argued that China's nuclear weapons program accomplished important advances on its own, without resorting to espionage. He began to seek government approval to publish his book in January 2000.
Notification to Congress. The chair and ranking Democrat of the House Intelligence Committee, Representatives Goss and Dicks, said that they were not sufficiently informed of the problems at the labs and the information that was provided was "underplayed."(227) In addition, the Cox Committee's bipartisan report, approved in December 1998, urged Congress to insist on notification by the Administration, citing "the fact that the heads of Executive departments and agencies of the Intelligence Community failed adequately to comply with congressional notification requirements of the National Security Act." The Clinton Administration argued that it fulfilled its responsibilities to keep appropriate committees informed.(228)
Representative Hunter, chairman of the House National Security Subcommittee on Military Procurement, stated that Elizabeth Moler, then Deputy Secretary of Energy, failed to testify about the W88 case in an October 6, 1998 hearing that included a closed session.(229) On April 15, 1999, Representative Hunter held a hearing to examine whether Moler (by then a lawyer outside government) failed to provide accurate and complete testimony in the closed session of the October 1998 hearing and whether she instructed Notra Trulock, Acting Deputy Director of DOE's Office of Intelligence, to withhold critical information, including the W88 case, from Congress. Trulock testified that Moler edited his written testimony to remove references to "successful espionage" at the U.S. labs, even though the information was cleared by the CIA for notification to Congress, and thus did not provide the subcommittee with a full picture of the threat against the United States. Moler stated that she did not provide certain information, because the questions were directed at Trulock and he failed to fully disclose information; that the subject of the hearing was on the foreign visitors' program (which was not involved in the espionage cases); that some information was highly classified; and that damaging information about PRC espionage would "unfairly impugn" important DOE exchange programs.(230)
Furthermore, Trulock told the Senate Armed Services Committee on April 12, 1999, that his concerns were "ignored," "minimized," and sometimes "ridiculed" especially by lab officials and that senior DOE officials "refused to authorize intelligence" for several months before he could brief then Secretary Pena in July 1997. Trulock also charged that Moler denied him approval to respond to Congressman Goss' July 1998 request to brief the House Intelligence Committee on the W88 case. According to Trulock, DOE officials, including Moler, stated concerns about negative impacts on the credibility of the labs and lab-to-lab programs with China and Russia. In response to Senator Levin's statement that the FBI did brief the Intelligence Committees 19 times from 1996 to 1999 on alleged espionage at the labs, Trulock stated that DOE briefed the Senate Intelligence Committee in July 1996 and the House Intelligence Committee in August 1996, but did not participate in the other 17 briefings. After 1996, Trulock said, he did not return to brief Congress until his testimony to the Cox Committee in September 1998.(231)
As pointed out by Senator Levin, the Administration said that it provided numerous briefings to the Intelligence Committees about the cases involving China and the labs. Moler denied that she prevented Trulock from briefing Representative Goss and argued that she took allegations of PRC espionage at DOE seriously. On the question of whether the Administration was trying to prevent the W88 case from interfering with the policy of engagement with China, Trulock acknowledged that Gary Samore, an NSC official in charge of nonproliferation policy, did encourage DOE to proceed with "counterintelligence efforts in order to protect sensitive information at the laboratories."(232)
The House Government Reform Committee held a hearing on June 24, 1999, on its concerns about firings, demotions, and harassment of "whistle-blowers," officials at the Energy and Defense Departments who expressed concerns to Congress about security problems. On July 2, 1999, Chairman Dan Burton wrote a letter to Defense Secretary Cohen criticizing an alleged gag order at the Defense Threat Reduction Agency (DTRA) against employees speaking to committee staff.(233)
Energy Secretary Richardson recognized the allegation that Moler sought to deny information to Congress, when he announced an internal inquiry as one of seven initiatives announced on March 17, 1999. In August 1999, Richardson announced the results of the internal probe by DOE's Inspector General, which investigated the question of obstructing briefings to former Secretary Pena and Congress. However, the report failed to "establish with any certainty that any Departmental official, knowingly or intentionally, improperly delayed, prohibited, or interfered with briefings to Mr. Pena or to the congressional intelligence committees."(234) Notra Trulock, who led the investigation at DOE, criticized the Inspector General's report as "a whitewash" and resigned as acting deputy director of intelligence to work at TRW Inc., a defense contractor. He expressed frustration that he had been removed from further involvement in the espionage investigation, called "Kindred Spirit," and that the internal DOE report failed to support his assertions of political interference.(235)
On March 8, 2000, Senator Specter, as part of his investigation under the jurisdiction of the Senate Judiciary Subcommittee on Administrative Oversight and the Courts, issued a report critical of the investigations of Wen Ho Lee. The report criticized the FBI's and DOE's investigations as "inept." It also criticized the Department of Justice and Attorney General Janet Reno for not forwarding the FBI's request for a warrant to the FISA court, despite "ample, if not overwhelming, information to justify the warrant."(236) However, Senator Charles Grassley, chairman of the subcommittee, criticized the FBI for not telling Congress through most of 1999 that the Bureau had found that Lee was not the prime suspect in the espionage case at Los Alamos. Senator Grassley said that he, along with Senators Specter and Torricelli, asked the GAO to examine whether a senior FBI official (believed to be Neil Gallagher, head of the National Security Division) had withheld documents from Congress in 1999. Senator Grassley sent a letter to Senator Specter that disputed his report, saying that the evidence against Lee was weak.(237)
Role of the White House. Some raised questions about how seriously National Security Advisor Sandy Berger took concerns about PRC espionage at the labs and the timing of when he informed President Clinton about the W88 case as well as the neutron bomb case. Some Members called for Berger to resign over the suspected compromise to national security. There were reportedly discrepancies between various accounts of when the President was briefed by the NSC about the alleged espionage cases and whether the President knew about suspected PRC espionage continuing into the 1990s. The President said on March 19, 1999, that "to the best of my knowledge, no one has said anything to me about any espionage which occurred by the Chinese against the labs, during my presidency."(238) After the New York Times reported on April 8, 1999, that China sought additional neutron bomb data in 1995, however, President Clinton explained his earlier statement as a response to a question specifically about alleged PRC espionage at the labs, which were apparently not linked to the neutron bomb case.(239)
In 1998, Berger reportedly told the Cox Committee that President Clinton was informed early that year. In May 1999, Berger said that he briefed the President in July 1997, after DOE briefed the NSC.(240) The press reported that intelligence and DOE officials briefed Berger as early as April 1996 on the W88 and the neutron bomb cases. Berger said that, in 1996, the reports to him were "preliminary" and that "the FBI hadn't even begun its investigation" and there was no suspect. Berger further argued that after a second briefing in 1997 that was "far more extensive"and suggested that "there was a potentially greater problem with respect to Chinese acquisition of sensitive information," he did brief the President. Berger also explained that the President did not raise the issue of PRC espionage at the October 1997 summit with PRC President Jiang Zemin because of the need to protect the secrecy of an ongoing investigation.(241) Yet, FBI Director Freeh testified in March 1999 that the FBI began its case (concerning the W88 data) in September 1995 and that, in August 1997, he told DOE officials that the stalled case was not as important as the protection of information.(242)
The PFIAB said in June 1999 that "although the current National Security Advisor was briefed on counterintelligence concerns by DOE officials in April of 1996, we are not convinced that the briefing provided a sufficient basis to require initiation of a broad Presidential directive at that time. We are convinced, however, that the July 1997 briefing, which we are persuaded was much more comprehensive, was sufficient to warrant aggressive White House action."
Also, the PFIAB revealed that the White House knew about PRC espionage at the nuclear weapon labs earlier than 1996. In discussing the track record of the Clinton Administration, the report noted briefly that, in 1995, after DOE officials met with the FBI on suspected PRC espionage of U.S. nuclear weapon data, an analysis group was formed at DOE to review the PRC nuclear weapon program, and senior DOE, CIA, and White House officials discussed options. The PFIAB also noted in its chronology that, in July 1995, senior DOE officials discussed with senior CIA, FBI, and White House officials in several meetings that there was the possibility that China may have classified U.S. nuclear design information. Former White House Chief of Staff Leon Panetta reportedly said that he was informed by then Energy Secretary Hazel O'Leary in July 1995. Afterwards, Panetta reportedly requested DCI John Deutch to work with the NSC on the matter. Deutch briefed National Security Advisor Anthony Lake in November 1995. The senior officials reportedly did not brief President Clinton in 1995.(243) Sandy Berger was the Deputy National Security Advisor at that time.
Right before the indictment of Wen Ho Lee, on December 4, 1999, top law-enforcement, security, and DOE officials held a meeting at the White House on whether to indict. Attorney General Janet Reno, National Security Advisor Sandy Berger, Energy Secretary Bill Richardson, FBI Director Louis Freeh, DCI George Tenet, and U.S. Attorney John Kelly attended.(244)
After Wen Ho Lee was freed after nine months in jail under a plea bargain in September 2000, President Clinton criticized the pre-trail detention of Lee, saying:<blockquote>I always had reservations about the claims that were being made denying him bail. And let me say -- I think I speak for everyone in the White House -- we took those claims on good faith by the people in the government that were making them, and a couple days after they made the claim that this man could not possibly be let out of jail on bail because he would be such a danger -- of flight, or such a danger to America's security -- all of a sudden they reach a plea agreement which will, if anything, make his alleged defense look modest compared to the claims that were made against him. So the whole thing was quite troubling to me, and I think it's very difficult to reconcile the two positions, that one day he's a terrible risk to national security, and the next day they're making a plea agreement for an offense far more modest than what had been alleged.(245)</blockquote>
Export Controls. Some critics linked the controversy over lab security with the Administration's export control policy toward China. They cited the export of high performance computers, or supercomputers, to China.(246) The Department of Commerce reported to Congress in January 1999 that 191 such computers were exported to China in 1998, for which only three end-use checks were conducted.(247) There were also concerns, investigated by Congress in 1998, that exports of U.S. satellites resulted in transfers of missile technology to China.(248) Some argued that the Administration's export control policies allowed dual-use exports "of great strategic value" to China that resulted in greater damage to U.S. national security than the leaks of nuclear weapon data.(249) President Clinton, nonetheless, said that his Administration was determined to prevent diversions of sensitive technology to China and placed controls on exports to China that are "tougher than those applied to any other major exporting country in the world."(250)
Nuclear Cooperation with China. Some questioned whether it was appropriate for the Administration to have expanded nuclear ties with China, including exchanges between the two nuclear weapon establishments, while it had suspicions about security compromises. At the 1997 U.S.-China summit, President Clinton promised to issue certifications (signed in January 1998) to implement the 1985 nuclear cooperation agreement, and during congressional review, the Administration did not discuss problems at the labs.(251) At the 1998 U.S.-PRC summit in Beijing, DOE signed a governmental agreement on peaceful nuclear cooperation, including exchanges at the labs.(252) The Administration argued that lab-to-lab exchanges were not the cause of the alleged security problems.
Concerns About Partisanship. Still others urged policy-makers to move beyond any partisan debates to urgently upgrade U.S. security at the labs, assess the potential damage from China's reported compromise of U.S. secrets, and take corrective action. They also cautioned against partisan attacks in this case that might damage broader and longer-term U.S.-China relations that are in U.S. interests, such as efforts on trade and weapon nonproliferation. They pointed out that, as FBI Director Freeh confirmed, "great vulnerability" to intelligence compromises of security at the nuclear weapon labs has been identified since 1988, ten years prior to PDD-61. Freeh said, "unfortunately, this situation has been well documented for over ten years." Those concerns about counterintelligence at DOE included a hearing held by Senator John Glenn in 1988 and studies by the FBI, CIA, and GAO since then.(253)
The Los Alamos controversy led to several reassessments and to consideration of intelligence-related legislation.(255) As discussed above, the Intelligence Community undertook an assessment of potential damage to national security from possible leaks of nuclear weapons secrets. DCI Tenet asked a group of outside experts headed by retired Admiral David Jeremiah, former Vice Chairman of the Joint Chiefs of Staff, to review the in-house effort, and they concurred with its judgments.
Efforts to formalize the government's counterintelligence efforts began after the arrest of Aldrich Ames, the CIA official convicted of espionage. A Presidential Directive was signed in May 1994 placing the policy and coordinating machinery of counterintelligence in the hands of the NSC and created a National Counterintelligence Policy Board composed of representatives of the principal law enforcement and intelligence agencies, reporting to the National Security Advisor. The Board was subsequently given a statutory charter in the FY1995 Intelligence Authorization Act (P.L. 103-359).
A major goal in establishing the Counterintelligence Policy Board was coordination of CIA and FBI efforts with a focus on counterintelligence at intelligence agencies; concerns about DOE laboratories were not publicly discussed in 1994. It was generally agreed that coordination among law enforcement and intelligence agencies improved significantly. As a result, however, of concerns dating from at least 1995 that China may have acquired sensitive information from Los Alamos, PDD-61 was issued in February 1998, mandating a stronger counterintelligence program within DOE laboratories. According to Energy Secretary Richardson, writing in March 1999, steps taken in response to PDD-61 included new counterintelligence professionals based at the laboratories, a doubling of the budget for counterintelligence, a new screening and approval process for foreign scientists seeking access to the laboratories, and more extensive security reviews -- including the use of polygraphs -- for scientists working in sensitive programs.(256)
In addition to questions about counterintelligence and modernization of PRC weapon designs, there were policy implications posed by China possibly passing U.S. nuclear weapon secrets to other countries. As discussed above, in the late 1970s to 1980s, the PRC reportedly acquired U.S. data on the neutron bomb from Livermore and passed it to Pakistan. The United States and other countries have been concerned about PRC nuclear weapon proliferation, especially in Pakistan and Iran.(257) Advanced U.S. warheads have features of value to would-be nuclear weapon states. These features might permit a nation to develop more efficient warheads, in which case it could build more bombs with its supply of uranium or plutonium. They might solve engineering problems or suggest production shortcuts. If China passed U.S. nuclear weapon information to another country, it could develop and deploy a more potent nuclear force faster.
The CIA's damage assessment, that was briefed to Congress and the Administration on April 21, 1999, cited a greater concern for nuclear proliferation. It acknowledged that China could pass U.S. nuclear weapon secrets to other countries, although it was not known whether China had done so. The assessment cautioned that, now that the PRC has more modern U.S. nuclear weapon information, it "might be less concerned about sharing [its] older technology."(258)
India or another country concerned about the advancement of PRC nuclear weapons might pursue further development of nuclear weapons and the missiles to deliver them in response to reports that China may have acquired designs for the W88. Citing security concerns about China, India conducted several nuclear tests in May 1998 and has not signed the CTBT.
Citing concerns about nuclear proliferation, Members looked at curtailing the U.S.-China lab-to-lab program that the Clinton Administration initiated in July 1994 and formalized in a June 1998 official agreement. Leading a delegation to the Los Alamos National Lab, Senator Shelby, Chairman of the Intelligence Committee, said on April 12, 1999, that a "tourniquet" was needed to be placed on the "hemorrhaging" of bomb secrets to foreign countries.(259) If there were security gaps at the labs stemming from foreign exchanges, Congress had a role in ensuring that adequate counterintelligence measures were in place. (See Legislation above.)
The Intelligence Community's April 1999 damage assessment stated concerns, highlighted by some, about PRC "technical advances" based on contact with scientists from the United States and other countries, among a variety of sources of information. (Other countries may include Russia.) The review panel's note on the damage assessment also warned of the dangers of exchanges between U.S. and PRC or Russian nuclear weapon specialists, urging that a separate net assessment be done on such formal and informal contacts. Yet, the panel also noted that "the value of these contacts to the U.S., including to address issues of concern -- safety, command and control, and proliferation -- should not be lost in our concern about protecting secrets."
Another report on PRC espionage included warnings about exchanges at the labs. According a 1999 report by the CIA and FBI, "PRC scientists, through mutually beneficial scientific exchange programs, gather [science and technology] information through U.S. national laboratories."(260)
China's nuclear weapon facilities have included the China Academy of Engineering Physics (CAEP), also known as the Ninth Academy, at Mianyang, Sichuan province; Institute of Applied Physics and Computational Mathematics (IAPCM), in Beijing; High Power Laser Laboratory, in Shanghai; and Northwest Institute of Nuclear Technology (NINT), near Xian.(261) China's nuclear weapon installations were reorganized as part of changes in the defense industrial sector in 1998 that included the civilianization of the Commission of Science, Technology, and Industry for National Defense (COSTIND) solely under the State Council. PRC nuclear weapon facilities then became partly subordinated to the People's Liberation Army (PLA)'s General Equipment Department that was set up in April 1998 to centralize and improve control over research and development, production, and deployment of weapons.
Placing restrictions on the foreign visitor program, however, entailed implications for U.S. policy on arms control and nonproliferation. The Administration argued that foreign exchanges have not compromised U.S. security and have not involved weapon secrets. Moreover, contacts with foreign nuclear scientists have allowed U.S. nuclear weapon labs to learn about the secretive nuclear weapon establishment in China -- especially as it was undergoing changes. In October 1998, John Browne, Director of Los Alamos, testified that "access to classified information by foreign nationals is not allowed" in DOE's foreign visitor program.(262) The Administration said that engagement of PRC and other scientists have fostered support for arms control and nonproliferation objectives as well as advanced U.S. interests in making sure that foreign nuclear powers have sufficient control over nuclear materials to prevent leaks to rogue states.(263) The former Director of Los Alamos argued that "any contact with China's nuclear weapons establishment needed to be clearly focused to avoid aiding their weapons program. Hence, the Department of Energy authorized only small, restricted interactions on nuclear materials protection and verification technologies for arms control treaties. These activities were and still are clearly in our national security interest."(264) Testifying before the Cox Committee in October 1998, C. Paul Robinson, director of Sandia, stated that "the lab-to-lab program with China has been beneficial in several ways. It provides the United States with perhaps its only window on the Chinese nuclear weapons program. . . Moreover, the program has helped promote the establishment of an arms control program in China."(265)
The disclosures about suspected PRC espionage at the U.S. labs further complicated the Administration's policy of engagement with China. Vice President Gore said on March 9, 1999, that "having a relationship with [China] within which we can try to affect their behavior and improve human rights, eliminate unfair trade practices, and bring about the kinds of changes that will lead to further democratization in China, these things are in our interest."(266) On March 11, 1999, President Clinton first defended his policy against charges of laxity in dealing with China and asserted that engagement "has paid dividends" for U.S. interests in weapon nonproliferation, Korea, and the Asian financial crisis. He also argued against an "isolated no-contact" relationship with Beijing.(267) In a major speech on China policy on the eve of PRC Premier Zhu Rongji's visit, President Clinton again explained that seeking to resolve differences with China cannot be achieved "by confronting China or trying to contain her," but through a "policy of principled, purposeful engagement with China's leaders and China's people."(268)
Some critics charged that the W88 case showed that engagement did not adequately protect U.S. national security interests, and a more confrontational policy -- some called containment -- should be pursued. They said that the credibility of the White House on China policy had been further eroded and that engagement had brought more harm than benefits to U.S. interests. Senator Helms wrote on July 8, 1999, that the Cox Report presented "damning disclosures on the Clinton Administration's `engagement' policy toward Beijing" and urged a "fundamental reassessment"of U.S. policy toward China.(269)
Still other critics pointed out that PRC espionage and China's military had and will continue to challenge U.S. interests and the question was not whether the United States needed to remain engaged with China -- as the President said, but how that long-standing policy of engagement was carried out. According to them, engagement -- but with a tougher approach -- remained the most appropriate policy. For example, James Lilley, former ambassador and CIA station chief in China, argued that while both PRC spying and American spying will continue, exposing PRC espionage "should not derail our relationship with China."(270)
Concerns over PRC nuclear espionage spurred even some supporters of engagement to criticize the Clinton White House's pursuit of what it called a "constructive strategic partnership" with China.(271) Henry Kissinger, credited in part with the opening to China, wrote that "a sustainable Sino-American relationship requires something beyond presidential invocations of 'engagement' that imply that contact between the two societies will automatically remove all latent tensions, or of a 'strategic partnership' whose content is never defined."(272)
Besides the immediate concerns about lab-to-lab exchanges, the W88 case also had ramifications for other aspects of the relationship with China. In March 1999, Representatives Gilman and Rohrabacher wrote letters to Defense Secretary William Cohen questioning exchanges with the PLA.(273) The Pentagon has pursued military-to-military ties with the PLA as a means to deter PLA provocations, increase mutual understanding, and expand relations with important leaders in China. Some observers were also concerned that a worsened political atmosphere would affect trade relations, including assessments about China's entry into the World Trade Organization (WTO).
1. (back) See CRS Report 97-391(pdf), China: Ballistic and Cruise Missiles, by [author name scrubbed]; and CRS Report 97-1022(pdf), Chinese Nuclear Testing and Warhead Development, by Jonathan Medalia.
4. (back) San Jose Mercury-News and New York Times, November 22, 1990; Wall Street Journal, January 7, 1999; Washington Post, February 17, 1999; CRS Report 96-767(pdf), Chinese Proliferation of Weapons of Mass Destruction: Background and Analysis, September 13, 1996, by [author name scrubbed].
6. (back) Reuters, December 9, 1997 and March 26, 1998; Washington Post, December 12, 1997; testimony of FBI Director Louis Freeh before the House Appropriations Subcommittee on Commerce, Justice, State, and Judiciary, March 17, 1999; Walter Pincus and Vernon Loeb, "For Chinese Scientists, a Subtle System of Espionage," Washington Post, May 9, 1999; Jeff Gerth and James Risen, "Reports Show Scientist Gave U.S. Radar Secrets to Chinese," New York Times, May 10, 1999.
7. (back) Gerth, Jeff and Eric Schmitt, "Bipartisan Report Finds Theft of Nuclear Technology That Hurt National Security," New York Times, December 31, 1998; Carla Anne Robbins, "China Got Secret Data On U.S. Warhead," Wall Street Journal, January 7, 1999; Walter Pincus, "U.S. Cracking Down On Chinese Designs On Nuclear Data" and "Spy Suspect Fired At Los Alamos Lab," Washington Post, February 17 and March 9, 1999; James Risen and Jeff Gerth, "China Stole Nuclear Secrets From Los Alamos, U.S. Officials Say," New York Times, March 6, 1999; testimony of FBI Director Louis Freeh before the House Appropriations Subcommittee on Commerce, Justice, State, and Judiciary, March 17, 1999.
10. (back) Pincus, Walter and Vernon Loeb, "China Spy Probe Shifts to Missiles," Washington Post, October 19, 2000; "Pentagon to Add 450 Experts to Protect Defense Secrets," Washington Post, October 27, 2000.
12. (back) FBI, "Statement by FBI Director Robert S. Mueller," April 9, 2003; Katrina Leung Affidavit; James J. Smith Affidavit; Eric Lichtblau and Barbara Whitaker, "Ex-FBI Agent is Accused of Passing Secrets to Lover," New York Times, April 10, 2003; Dan Eggen and Kimberly Edds, "Ex-FBI Agent, Chinese 'Asset' Arrested in Spy Case," Washington Post, April 10, 2003.
16. (back) Schmidt, Susan and Dan Eggen, "FBI Assesses Potential Spy Damage," Washington Post, April 12, 2003; Eric Lichtblau, "Prosecutors Say Spy Suspect Revealed Details of Inquiry," New York Times, April 16, 2003; Dan Eggen, "90 Trip to China a Turning Point for Ex-FBI Agent," Washington Post, April 28, 2003.
23. (back) See CRS Report 97-391(pdf), China: Ballistic and Cruise Missiles, by [author name scrubbed]; and CRS Report 97-1022(pdf), Chinese Nuclear Testing and Warhead Development, by Jonathan Medalia.
25. (back) National Security Council's response (unclassified version) to the House Select Committee's recommendations, February 1, 1999. The Cox Committee's report dated January 3, 1999, was classified at the time the NSC released its response. The Cox Committee issued declassified report on May 25, 1999. Also see CRS Report RL30220(pdf), China's Technology Acquisitions: Cox Committee's Report -- Findings, Issues, and Recommendations, June 8, 1999, by Shirley Kan.
28. (back) CIA, "The Intelligence Community Damage Assessment On the Implications of China's Acquisition of U.S. Nuclear Weapons Information On the Development of Future Chinese Weapons," (unclassified release), April 21, 1999.
30. (back) Select Committee, U.S. House of Representatives, H.Rept. 105-851, U.S. National Security and Military/Commercial Concerns with the People's Republic of China, (classified report issued on January 3, 1999; declassified version issued on May 25, 1999); See also: CRS Report RL30220(pdf), China's Technology Acquisitions: Cox Committee's Report -- Findings, Issues, and Recommendations, June 8, 1999, by [author name scrubbed].
35. (back) Prather, James Gordon, "A Technical Reassessment of the Conclusions and Implications of the Cox Committee's Report," July 8, 1999. See also: Jack Kemp's press release, July 8, 1999, and Robert D. Novak, "Republican China-Bashing," Washington Post, July 12, 1999. For copies of report, contact Jack Kemp's office or Home Page of Polyconomics, Inc.
37. (back) President's Foreign Intelligence Advisory Board, Special Investigative Panel, Science at its Best, Security at its Worst: A Report on Security Problems at the U.S. Department of Energy, unclassified, June 1999.
40. (back) Coll, Steve, "The Man Inside China's Bomb Labs," Washington Post, May 16, 2001; William Broad, "Author to Sue U.S. Over Book On China's Nuclear Advances," New York Times, June 18, 2001; Mark Hibbs, "U.S. Due to Respond Next Week to Ex-LANL Expert's China Suit," Nucleonics Week, June 21, 2001.
41. (back) Senate Governmental Affairs Committee hearing, "Security Weaknesses at the Nuclear Weapons Laboratories," October 11, 1988; Nuclear Nonproliferation: Major Weaknesses in Foreign Visitor Controls at Weapons Laboratories (GAO/RCED-89-31), October 1988.
44. (back) Senate Select Committee on Intelligence, "Report On Impacts To U.S. National Security Of Advanced Satellite Technology Exports to the People's Republic of China (PRC), and Report on the PRC's Efforts to Influence U.S. Policy," May 1999.
47. (back) Senate Governmental Affairs Committee, "Department of Energy, FBI, and Department of Justice Handling of the Espionage Investigation into the Compromise of Design Information on the W88 Warhead," August 5, 1999; Walter Pincus, "China Spy Probe Bungled, Panel Finds," Washington Post, August 6, 1999.
48. (back) Vernon Loeb, "Justice Accused of Laxity in Spy Case," Washington Post, October 27, 1999; "Questions About Another Chinese Spy Case," Washington Post, April 4, 2000; Bill Gertz, "Specter Berates Justice's Spy Case Handling," Washington Times, April 6, 2000; John Solomon, "U.S. Gave Spy A Plea Bargain Prior to Damage Report," Philadelphia Inquirer, May 21, 2000.
51. (back) DOE, "Sensitive Countries List," May 1999. Because of reasons of national security, terrorism, or nuclear proliferation, the following are included: Algeria, Armenia, Azerbaijan, Belarus, PRC, Cuba, Georgia, India, Iran, Iraq Israel, Kazakstan, Kyrgyzstan, Libya, Moldova, North Korea, Pakistan, Russia, Sudan, Syria, Taiwan, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan.
55. (back) For later consideration by the 108th Congress of improvements in counterintelligence, see CRS Report RL31883, Counterintelligence Reform at the Department of Energy: Policy Issues and Organizational Alternatives, by [author name scrubbed].
59. (back) President's Foreign Intelligence Advisory Board, Special Investigative Panel, Science at its Best, Security at its Worst: A Report on Security Problems at the U.S. Department of Energy, unclassified, June 1999. Also called the Rudman Report.
63. (back) The Rudman Report called for streamlining DOE's system of 11 field offices, with 6,000 employees, in addition to 5,000 at headquarters, that resulted in a "convoluted and bloated management structure."
64. (back) Trujillo, Manuel and Chuck Montano (Los Alamos employees), "Compromised: The Los Alamos Lab," letter to the editor, Washington Post, July 7, 1999. UC runs Los Alamos and Lawrence Livermore. Lockheed Martin Corp. runs Sandia.
65. (back) Also see CRS Report RL30569, Department of Energy: Status of Legislated Security and Counterintelligence Measures, by Jonathan Medalia; CRS Issue Brief IB10036, Restructuring DOE and its Laboratories: Issues in the 106th Congress, by William Boesman.
67. (back) Pincus, Walter, "Richardson May Urge Veto of Nuclear Agency," Washington Post, August 7, 1999; "Richardson Likely to Urge Authorization Bill Veto Over DOE Language," Inside the Pentagon, August 12, 1999.
73. (back) CRS Memorandum, "Assessment of Legal Issues Raised by the President's Directions to the Secretary of Energy With Respect to the Implementation of the National Nuclear Security Administration Act in His Signing Statement of October 5, 1999," November 1, 1999, by [author name scrubbed]. The congressional office has released the memo.
74. (back) DOE, "Implementation Plan: National Nuclear Security Administration," January 1, 2000; "Energy Department Proceeds with Implementation of National Nuclear Security Administration," news release, January 7, 2000.
75. (back) House Armed Services Committee, Special Panel on Department of Energy Reorganization, "Department of Energy National Nuclear Security Administration Implementation Plan: An Assessment," February 11, 2000.
78. (back) For an unclassified summary of PDD-61, see Appendix to the President's Foreign Intelligence Advisory Board's June 1999 report, Science at its Best, Security at its Worst: A Report on Security Problems at the U.S. Department of Energy.
79. (back) Pena, Federico, "Alert At The Energy Department," Washington Post, March 16, 1999; Richardson, Bill (Secretary of Energy), "Guarding Our Nuclear Security," Washington Post, March 15, 1999; Energy Secretary Bill Richardson, testimony on March 16, 1999; Gary Samore (NSC), briefing at Carnegie Endowment, March 17, 1999; Senate Armed Services Committee Hearing, April 12, 1999.
91. (back) Gerth, Jeff and Eric Schmitt, "Bipartisan Report Finds Theft of Nuclear Technology That Hurt National Security," New York Times, December 31, 1998; Carla Anne Robbins, "China Got Secret Data On U.S. Warhead," Wall Street Journal, January 7, 1999; Walter Pincus, "U.S. Cracking Down On Chinese Designs On Nuclear Data" and "Spy Suspect Fired At Los Alamos Lab," Washington Post, February 17 and March 9, 1999; James Risen and Jeff Gerth, "China Stole Nuclear Secrets From Los Alamos, U.S. Officials Say," New York Times, March 6, 1999; testimony of FBI Director Louis Freeh before the House Appropriations Subcommittee on Commerce, Justice, State, and Judiciary, March 17, 1999.
92. (back) Risen, James, "U.S. Fires Nuclear Scientist Suspected of Spying for China," New York Times, March 9, 1999; Pincus, Walter, "Spy Suspect Fired At Los Alamos Lab," Washington Post, March 9, 1999.
112. (back) Risen, James and Jeff Gerth, "China Stole Nuclear Secrets From Los Alamos, U.S. Officials Say," New York Times, March 6, 1999; David E. Sanger, "Clinton Aides Admit Lapses On Espionage by Chinese," New York Times, March 7, 1999; Jeff Gerth, "Nuclear Lapses Known in '96, Aides Now Say," New York Times, March 17, 1999; Vernon Loeb and Juliet Eilperin, "GOP Attacks' Impact on China Ties Concerns White House," Washington Post, March 17, 1999.
113. (back) President's Foreign Intelligence Advisory Board (PFIAB), Special Investigative Panel, Science at its Best, Security at its Worst: A Report on Security Problems at the U.S. Department of Energy, unclassified, June 1999.
117. (back) Risen, James and Jeff Gerth, "China Stole Nuclear Secrets from Los Alamos, U.S. Officials Say," New York Times, March 6, 1999; Testimony of Louis Freeh, Director of the FBI, before the House Appropriations Subcommittee on Commerce, Justice, State, and Judiciary, March 17, 1999.
127. (back) Loeb, Vernon and Walter Pincus, "Los Alamos Security Breach Confirmed," Washington Post, April 29, 1999; James Risen and Jeff Gerth, "China Spy Suspect Reportedly Tried to Hide Evidence," New York Times, April 30, 1999.
131. (back) Senate Governmental Affairs Committee, "Department of Energy, FBI, and Department of Justice Handling of the Espionage Investigation into the Compromise of Design Information on the W88 Warhead," August 5, 1999; Walter Pincus, "China Spy Probe Bungled, Panel Finds," Washington Post, August 6, 1999.
144. (back) Eggen, Dan and Ellen Nakashima, "U.S. Probe of Nuclear Scientist Assailed," Washington Post, August 14, 2001; Dan Eggen, "Report Details More FBI Blunders in Wen Ho Lee Probe," Washington Post, August 27, 2001.
148. (back) Department of Justice, U.S. Attorney John J. Kelly, District of New Mexico, news release, "Wen Ho Lee Indicted for Violating the Atomic Energy Act of 1954 and for Unlawful Gathering and Retention of National Defense Information," December 10, 1999.
149. (back) Restricted Data means data concerning: 1) the design, manufacture, or utilization of atomic weapons; 2) production of special nuclear material; or 3) the use of special nuclear material in the production of energy.
164. (back) Loeb, Vernon, "Nuclear Weapons Expert Urges Bail for Lee," Washington Post, August 17, 2000; Vernon Loeb and Walter Pincus, "Judge: Lee Can Be Freed on Bail," Washington Post, August 25, 2000.
170. (back) Bob Drogin, "Scientist to Accept Plea Deal; Likely to Be Freed Today," Los Angeles Times, September 11, 2000; James Sterngold, "U.S. to Reduce Case Against Scientist to a Single Charge," New York Times, September 11, 2000.
180. (back) Loeb, Vernon and Walter Pincus, "FBI Seeks Computer Tapes in Lee Case," Washington Post, November 29, 2000; Walter Pincus, "Lee: Tapes Went in Trash," Washington Post, December 1, 2000; "For Government, Wen Ho Lee Mystery Deepens," Washington Post, December 15, 2000.
186. (back) Klaidman, Daniel, "Was the Spymaster Too Sloppy," Newsweek, April 19, 1999; Steven Lee Myers, "Former Chief of CIA Is Stripped of Right to Classified Information," New York Times, August 21, 1999; "Double Trouble," Newsweek, November 8, 1999; James Risen, "C.I.A. Inquiry of Its Ex-Director Was Stalled at Top, Report Says," New York Times, February 1, 2000; Senate Intelligence Committee, "Senate Select Committee on Intelligence Chairman and Vice Chairman Comment on Deutch Allegations," news release, February 1, 2000.
188. (back) Loeb, Vernon and David A. Vise, "Reno Reviews CIA Probe of Ex-Director," Washington Post, February 25, 2000; Walter Pincus and Vernon Loeb, "U.S. Inconsistent When Secrets are Loose," Washington Post, March 18, 2000.
190. (back) David A. Vise and Vernon Loeb, "Reno Weighs Whether to Prosecute Former CIA Chief," Washington Post, August 26, 2000; Jerry Seper, "Document-Misuse Charges Sought Against Ex-CIA Boss," Washington Times, August 29, 2000.
192. (back) David Vise and Vernon Loeb, "Deutch May Plead Guilty to Misdemeanor," Washington Post, January 19, 2001; David Abel, "Ex-CIA Chief Deutch Gets Presidential Pardon," Boston Globe, January 21, 2001; Bill Miller and Walter Pincus, "Deutch Had Signed Plea Agreement, Sources Say," Washington Post, January 24, 2001; Vernon Loeb, "Senate Committee Questions Clinton's Pardon of Deutch," Washington Post, February 16, 2001.
197. (back) Coalition of Asian Pacific American Federal Employee Organizations (CAPAFEO), "Los Alamos Position Paper," sent to President Clinton on September 30,1999 and presented to the Congressional Asian Pacific Caucus on October 5, 1999.
198. (back) Loeb, Vernon, "Ex-Official: Bomb Lab Case Lacks Evidence," Washington Post, August 17, 1999; William J. Broad, "Official Asserts Spy Case Suspect Was a Bias Victim," New York Times, August 18, 1999.
205. (back) Moore, Paul D., "How China Plays the Ethnic Card," Los Angeles Times, June 24, 1999; "Spies of a Different Stripe," Washington Post, May 31, 1999; "China's Subtle Spying,"New York Times, September 2, 1999.
211. (back) DOE, Task Force Against Racial Profiling, "Final Report," January 2000; "Richardson Releases Task Force Against Racial Profiling Report and Announces 8 Immediate Actions," news release, January 19, 2000.
213. (back) James Sterngold, "Judge Orders U.S. to Turn Over Data in Secrets Inquiry," New York Times, August 30, 2000; Vernon Loeb, "Affidavits Cite Race in Probe of Lee," Washington Post, September 1, 2000; Order of U.S. District Judge James Parker, August 25, 2000; Declaration of Robert Vrooman, August 10, 2000; Declaration of Charles E. Washington, August 11, 2000.
226. (back) Coll, Steve, "The Man Inside China's Bomb Labs," Washington Post, May 16, 2001; William Broad, "Author to Sue U.S. Over Book On China's Nuclear Advances," New York Times, June 18, 2001; Mark Hibbs, "U.S. Due to Respond Next Week to Ex-LANL Expert's China Suit," Nucleonics Week, June 21, 2001.
227. (back) Risen, James and Jeff Gerth, "China Stole Nuclear Secrets From Los Alamos, U.S. Officials Say," New York Times, March 6, 1999; David Sanger, "'No Question,' U.S. Says, Leak Helped China," New York Times, March 15, 1999.
229. (back) Loeb, Vernon and Juliet Eilperin, "GOP Attacks' Impact on China Ties Concerns White House," Washington Post, March 17, 1999; Bill Gertz, "Senators Briefed Privately on Spy Case," Washington Times, March 17, 1999.
231. (back) Hearing of the Senate Armed Services Committee, "Alleged Chinese Espionage at Department of Energy Laboratories," April 12, 1999; James Risen, "White House Said to Ignore Evidence of China's Spying," New York Times, April 13, 1999; Hearing of the House Armed Services Subcommittee on Military Procurement, April 15, 1999.
235. (back) Loeb, Vernon and Walter Pincus, "Espionage Whistleblower Resigns," Washington Post, August 24, 1999; James Risen, "Official Who Led Inquiry Into China's Reputed Theft of Nuclear Secrets Quits," New York Times, August 24, 1999.
241. (back) Risen, James and Jeff Gerth, "China Stole Nuclear Secrets From Los Alamos, U.S. Officials Say," New York Times, March 6, 1999; Sandy Berger's interview on NBC's "Meet the Press," March 14, 1999; Jeff Gerth and James Risen, "Intelligence Report Points to Second China Nuclear Leak," New York Times, April 8, 1999.
252. (back) Agreement between the Department of Energy of the United States of America and the State Development Planning Commission of the People's Republic of China on Cooperation Concerning Peaceful Uses of Nuclear Technologies, June 29, 1998.
258. (back) CIA, "The Intelligence Community Damage Assessment On the Implications of China's Acquisition of U.S. Nuclear Weapons Information On the Development of Future Chinese Weapons," (unclassified release), April 21, 1999.
261. (back) Department of Commerce, "Entity List, Entities of Proliferation Concern Listed in Supplement No. 4 to Part 744 of the Export Administration Regulations," updated November 19, 1998;" Defense Intelligence Agency, Defense Intelligence Reference Document DI-1921-60A-98, "China's International Defense-Industrial Organizations," June 1998; Conference at the Monterey Institute of International Studies, November 1997.
263. (back) Prindle, Nancy, "The U.S.-China Lab-to-Lab Technical Exchange Program," Nonproliferation Review, Spring-Summer 1998; Wen L. Hsu, "The Impact of Government Restructuring on Chinese Nuclear Arms Control and Nonproliferation Policymaking," Nonproliferation Review, Fall 1999.
265. (back) Statement of C. Paul Robinson, U.S. House of Representatives Select Committee on U.S. National Security and Military/Commercial Concerns with the People's Republic of China, October 14, 1998.
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