Tiger Trap: America's Secret Spy War With China (14 page)

That same month, Wen Ho Lee went on
60 Minutes,
and the government lost its case before it ever started. Lee's appearance with a sympathetic Mike Wallace turned the tide of public opinion in Lee's favor, and the prosecutors never regained their footing.

"The truth is I'm innocent,"
Lee said on the CBS television broadcast. "I have not done anything wrong with—what they try to accuse me."

Had he never passed United States nuclear secrets to China? Wallace asked.

"No I have never done that.... I devote the best time of my life to this country, to make the country stronger ... so we can protect the American people."

Wallace then asked why Lee had downloaded the files. "To protect my code," he replied. "To protect my file."

Lee was asked why he thought he had become a target.

"My best explanation of this is they think I'm a, you know, Chinese people—I was born in Taiwan. I think that's part of the reason. And the second reason, they want to find out some scapegoat."

Lee's explanation on
60 Minutes
of why he had illegally downloaded the codes was enigmatic. In later statements, he elaborated. He said he had once lost his work when the lab converted to a new computer system and did not want it to happen again. Government investigators theorized that it was more likely he wanted the material in case he ever left Los Alamos to look for a new job.

Four months later, on December 10, 1999, a federal grand jury in Albuquerque handed down a fifty-nine-count indictment charging Lee with mishandling classified information. If convicted he faced a sentence of life in prison. He was arrested by the FBI at his home, handcuffed, and taken to the Santa Fe County jail. Three days later, he was denied bail after Stephen Younger, the associate director of nuclear weapons programs at Los Alamos, warned ominously that the codes Wen Ho Lee had downloaded could, in the wrong hands, "change the global strategic balance."

Lee spent the next nine months in solitary confinement. Under the harsh special administrative measures, or SAM, ordered by the attorney general, he was placed in handcuffs, waist shackles, and leg irons during the one hour a week he was allowed outside his cell.

Lee's defense lawyers pressed unsuccessfully to have him released from the onerous prison conditions. But as the months dragged by, the government's case suffered a series of setbacks. Two lead prosecutors left. One quit to run for Congress, another was replaced because of reports he had an affair with a woman on his staff. Robert A. Messemer, an FBI supervisory special agent, admitted in court that he had given erroneous testimony about Lee.

John Cline was promising to force the government to produce highly classified evidence if the case went to trial. FBI director Louis J. Freeh worried that if Lee was convicted, the government would never find out why he had downloaded the nuclear weapons codes and transferred them to tapes, seven of which were missing.

Alberta Lee, Wen Ho Lee's daughter, was tireless and effective in appearing at rallies and on television on her father's behalf, asserting that he was innocent and a victim of racial profiling because of his Chinese heritage. In August, James A. Parker, the federal district judge presiding over the case, said he was not persuaded that Lee should be kept in jail, and ordered him released. The government blocked his release. By September, however, prosecutors, their case unraveling, were ready to give up. They offered Lee a plea bargain.

The terms were worked out among the lawyers for the two sides; the government would drop fifty-eight of the fifty-nine counts in the indictment. In return, Lee would plead guilty to one count of mishandling defense data, a felony, and would tell the government why he had downloaded the secrets and what he did with his tapes.

Then Judge Parker stunned the hushed courtroom in Albuquerque with his words. "I believe you were terribly wronged
by being held in custody pretrial in the Santa Fe County Detention Center under demeaning, unnecessarily punitive conditions. I am truly sorry that I was led by our executive branch of government to order your detention last December. Dr. Lee I tell you with great sadness that I feel I was led astray last December by the executive branch of our government.... They did not embarrass me alone. They have embarrassed our entire nation and each of us who is a citizen of it.

"I might say that I am also sad and troubled because I do not know the real reasons why the executive branch has done all of this....

"Although, as I indicated, I have no authority to speak on behalf of the executive branch, the president, the vice president, the attorney general, or the secretary of the Department of Energy, as a member of the third branch of the United States Government, the judiciary, the United States Courts, I sincerely apologize to you, Dr. Lee, for the unfair manner you were held in custody by the executive branch."

Wen Ho Lee was free. He walked out into the bright New Mexico sunlight, accompanied by his lawyers and Alberta, to face the television cameras. "For the next few days, I'm going fishing," he said.

The prosecution was derided because the government had thrown fifty-nine counts at Lee and was able to convict him of only one. But the unusual length of the indictment was a result of the fact that each count listed a separate file that Lee had "removed" or altered and copied.

The plea agreement was almost derailed when at the last minute Lee mentioned to the lawyers that he had not only downloaded the codes and copied them onto tapes, he had also made copies of the tapes. He claimed he had thrown the tapes into a dumpster near his office in the lab. The FBI later assigned a hapless team of agents to dig through the city dump looking for the tapes, but they were never found.

In the aftermath of the case, Brian Sun, an astute Los Angeles lawyer who later represented J.J. Smith in the
PARLOR MAID
case, brought an invasion-of-privacy suit on behalf of Wen Ho Lee against the government for leaking Lee's name to the press. In 2006 the suit was settled for $1,645,000,
with five news organizations agreeing to pay almost half that amount.

The news outlets were not named in the suit, but joined in the settlement to avoid having their reporters punished and possibly jailed for refusing to name their sources. The reporters had been held in contempt of court and ordered to pay fines of $500 a day, but the fines were suspended while they appealed.

And so the saga was over, with no real winners. The case was a fiasco, and a tragedy. The evidence suggests that Wen Ho Lee may have been singled out, at least in part, because he was a Chinese American. That should never have happened. There were certainly other significant factors that led to the focus on Lee; his actions had led to two previous FBI investigations.

Although critics blamed Trulock for the Wen Ho Lee debacle, he did alert Congress and the public to the fact that China had somehow obtained details of the nation's most sophisticated nuclear weapon. And responsibility for mishandling the Wen Ho Lee case was shared among a wide spectrum of officials at DOE, the Department of Justice, the federal prosecutors in Albuquerque, and the FBI.

As an Asian American casualty of government misconduct, Wen Ho Lee was a deeply flawed hero. He pleaded guilty to a felony, mishandling defense information. He lied to the FBI, denying that he had called the
TIGER TRAP
scientist until confronted with the wiretap evidence. He downloaded thousands of classified nuclear weapons files to an insecure, unclassified computer system and then onto tapes, for his own, still unclear, reasons. Several of those tapes were never found. He concealed his contact in China with Hu Side, China's top nuclear weapons designer, the scientist who built that country's small nuclear warhead.

He had very smart lawyers and a shrewd sense of public relations—his appearance on
60 Minutes
was a brilliant move, although he never convincingly explained to Mike Wallace exactly why he had downloaded all those files. But he was jailed and held under excessively harsh conditions, and the government bungled the case against him at every turn. He was portrayed to the public as a dangerous spy yet never charged with espionage or found guilty of espionage.

Almost forgotten amid the furor over the Wen Ho Lee case was the still-unanswered question that started it all—the mystery of who stole the design of the W-88 warhead and gave it to China.

Chapter 10

SEGO PALM

R
OBERT M. "BEAR" BRYANT
was raised on a farm in Springfield, Missouri, went to law school at the University of Arkansas, and then joined the FBI. He rose through the ranks to head the national security division, and in 1997 was named the bureau's second in command, as deputy director.

By September 1999, Bryant was unhappy with the Wen Ho Lee investigation, which was dragging on and seemed no closer than ever to discovering how China had acquired the dimensions of the W-88 warhead. In fact, there was so much controversy over the botched probe of Wen Ho Lee that the larger question seemed in danger of being lost in the shuffle.

Bryant reached his decision. The FBI needed to launch a separate, major investigation of how China had gained access to the secret of the nation's most advanced nuclear weapon.

He knew whom to call. Steve Dillard, the special agent in charge in Jackson, Mississippi, had worked for Bryant in Kansas City, Salt Lake, and at headquarters. He had run the section in charge of foreign counterintelligence and espionage and over the years had earned Bryant's complete trust.

A thin, bespectacled, soft-spoken man, Dillard was pleased to be back in his native Mississippi. He grew up in New Albany (pop. 7,607), in the hill country in the northeast corner of the state, and had a master's degree in sociology and criminology, as well as a law degree. In manner and appearance, he could easily be mistaken for a college professor rather than the counterspy and FBI veteran he was.

Dillard recalled how his Mississippi idyll ended. "I got a phone call out of the blue from Bob Bryant.
He said the FBI was taking a hit in congressional hearings and in the national media." Bryant bluntly laid out his concerns and asked Dillard to fly back to Washington and take a look at the origin and status of the Wen Ho Lee investigation.

"I asked that a copy of the Albuquerque field office case file be shipped in to FBI headquarters," Dillard said. "I came in to headquarters on a Monday morning and over the next three days, read both the headquarters and the Albuquerque files."

On a secure phone, Dillard made several calls to the field office in Albuquerque and to CIA headquarters. On Thursday afternoon, he reported his conclusions to Bryant, who had him brief FBI director Louis Freeh the next morning. In the afternoon, Dillard and Freeh met with the attorney general, Janet Reno.

Early the following week Reno, Freeh, and Dillard sat down with Secretary Richardson at the Department of Energy. The FBI would continue its investigation of Wen Ho Lee, they told Richardson, but it also would open an "overall investigation" of the documents obtained in 1995 from the walk-in, including the one displaying the measurements of the W-88, "to examine other potential areas of compromise."

Dillard was given carte blanche to assemble as big a staff as he needed. The new, broader investigation of the W-88 compromise was given a secret code name:
SEGO PALM
, named after a plant,
Cycas revoluta,
native to southern Japan that is poisonous to humans and animals.

Soon, Dillard put together a task force of three hundred people in eleven government agencies.
He worked from FBI headquarters, but also enlisted several agents at the Washington field office. One, Dave Lambert, served as case agent at the field office for the new investigation. Lambert was one of the two FBI men who later interviewed the walk-in and judged him authentic, not a plant as the CIA contended.

Most members of the task force were from the Defense Department. There were researchers, and agents from a little-known Pentagon unit, the Counterintelligence Field Activity. A large group of translators worked on the walk-in documents, mostly from the FBI and the CIA, although some were from the NSA and the Defense Intelligence Agency (DIA).

The investigation was, to say the least, challenging. How China had accomplished its coup of obtaining the W-88 data, the source or sources of the documents or information that had ended up in Beijing, the individuals who might have passed the secrets, exactly when that had occurred—all were unknowns, the answers locked in the minds and files of Chinese intelligence half a world away across the Pacific.

Bryant and Dillard recognized that there was no assurance the new investigation would discover the answers. Even so, Dillard was startled by what he had found even as he was assembling the huge task force.

The administrative inquiry by DOE's intelligence branch, Dillard said, reported that the information in the walk-in document "had to have come from X Division within Los Alamos, and Wen Ho Lee was the only person in X Division who could have compromised the information. It was completely wrong."

The internal evidence in the W-88 document made that clear, Dillard said. "In any nuclear weapon, you have the physics package and the delivery system," he continued. "The physics package is the configuration and parts of the two-stage bomb itself. The delivery systems are the mechanisms we use to deliver the bomb to the target—the ICBMs, the submarine-launched ballistic missiles, and the strategic bombers. This document had a small amount of information about the physics package, but it had even more stuff dealing with the delivery system. That meant that DOD, the Defense Department, not DOE, was the proprietor of the majority of the information in the document."

Although that did not exclude Los Alamos and the Energy Department as the source of the leak, it suggested that the Pentagon was a more likely place to look. The information in the W-88 document, Dillard said, was not only "all over" the Defense Department and DOE, "it was in Trident submarine manuals, and some of it had even been shared with the Brits."