Tiger Trap: America's Secret Spy War With China (25 page)

While in Beijing, Lee lectured on microwave scattering from ocean waves and talked about his work on the radar ocean-imaging project. He showed the scientists a photograph he had brought with him of the wake of a surface ship and drew a graph to illustrate his talk. In answer to a question, he said the technology could also be used to detect submarines moving below the surface.

Among the thirty scientists present were He Xiantu, Du Xiangwan, Chen Nengkuan, whom Lee had met on an earlier trip to China in 1985, and Yu Min, whom he had also met on the earlier trip and who was described by one Livermore official as the Edward Teller of the Chinese nuclear weapons program.

Apparently Lee realized he might get in trouble for his freewheeling lecture to the Chinese scientists, because before leaving the institute, he erased the graph and tore the photograph into small pieces.
A few days later, he lectured to scientists in another city.

Back in California in late May, he filled out a questionnaire for TRW asserting that the Chinese had not asked "for technical information" or tried to persuade him to disclose classified data. However, he detected no sign of trouble—until Robin discovered the bug two months later.

J.J. Smith had assigned three agents to the
ROYAL TOURIST
investigation, Gilbert Cordova, Serena Alston, and Brad Gilbert. They were the same team that investigated Jeffrey Wang in the
ETHEREAL THRONE
case.

In late June, Cordova interviewed Lee, who insisted, as he had on his travel form for TRW, that he had paid his own expenses
on what he described as a sightseeing and pleasure trip. He denied that he had engaged in any technical or scientific discussions with anyone in China. By lying on both counts, Lee did not realize he was digging himself deeper into a hole.

Once Robin Lee had discovered the bug in the kitchen, the surveillance was obviously compromised. J.J. Smith and the other agents realized they had to move quickly. In August, the FBI interviewed Lee twice in a hotel room in Santa Barbara.

Lee was unaware that he had an audience. As Cordova and Alston questioned the scientist at Fess Parker's hotel, J.J. and his entire squad of about fifteen FBI agents from Los Angeles were crowded into the adjoining room, watching the proceedings on video.

Somewhat to the surprise of the FBI agents, Lee now admitted he had lied
about the purpose of his trip and in denying that he had talked to the Chinese about technical matters. But he continued to insist he had paid for the trip himself. At the second of the interviews, on August 14, he was asked to provide receipts to verify his trip expenses.

Soon afterward, Lee sent an e-mail and fax to Guo Hong, a Chinese official, about an "extremely urgent matter." He asked Guo to send him receipts in English with his name and Robin's, showing that he had paid for the trip. The Chinese official obliged, and early in September, Lee submitted the phony receipts to the FBI.

A month later, Lee agreed to be interviewed again and to take a lie detector test. Told he had failed the polygraph, Lee then confessed on videotape that he had talked about classified information in China and lied on his post-travel questionnaire. He said he had revealed the information because China is "such a poor country" and one of the scientists had asked for his help. It was a classic example of
guanxi
and the "help China modernize" pitch that had worked in other cases.

But Peter Lee had an even bigger surprise in store for the FBI agents. Having decided to unburden himself, he began talking about the four-week trip that he had taken to China in January 1985.

At the time of the trip, Lee was working at Los Alamos. For eight years before that, however, he had been at the Livermore lab as a research physicist specializing in inertial confinement fusion, or ICF, the use of lasers to attempt to trigger what amounted to miniature, tabletop thermonuclear explosions.
In these experiments, powerful lasers are focused on a hohlraum, a small gold cylinder no bigger than a paper clip that holds a tiny capsule containing deuterium and tritium. The goal is to cause the fuel inside the capsule to ignite, creating for a fraction of a second a miniature star and producing new energy by fusion, the way the sun does. The process, if successful, could be used to produce nuclear energy to generate electricity, but it is also similar to what happens in a thermonuclear bomb.

The dance had begun on January 9, 1985, when Lee met with Chen Nengkuan of the China Academy of Engineering Physics, the agency that designed and developed the country's nuclear weapons. In Chen's hotel room in Beijing, Lee was asked questions by him that involved classified information. Chen told Lee he did not need to speak, he could just nod yes or no.

That would foil any eavesdroppers. But it would also allow Lee to claim that he never "talked" to Chen about any US secrets.

Chen, one of China's top scientists in its nuclear weapons program, had earned a PhD in physics at Yale in 1950. He drew for Lee a diagram of a hohlraum, and asked a series of questions about it. The business of just nodding yes or no was soon forgotten, and Lee answered questions about the dimensions of the cylinder and where the capsule was located inside it.

The next day, Lee was picked up at his hotel by Chen and driven to another hotel where a group of Chinese scientists was waiting in a small conference room. For two hours, Lee answered questions and drew several diagrams, including sketches of hohlraums.
He also discussed problems the United States was having in its simulated nuclear weapons tests.

On the face of it, the government appeared to have an airtight case against Peter Lee. By his own admission, he had revealed classified information in 1985 on the laser program and in 1997 on the ocean-imaging project and its application to detecting submarines. He had lied about the purpose of his trip in 1997 and in denying he had discussed technical subjects in China. He then tried to deceive the FBI with phony travel vouchers to prove he had paid for the trip himself.

The case was assigned to Jonathan Shapiro, a young, gung-ho federal prosecutor in Los Angeles, a Harvard graduate with a law degree from the University of California at Berkeley and a Rhodes scholar. Shapiro, as he later testified to a Senate judiciary subcommittee chaired by Senator Arlen Specter, had "what I thought was a dead-bang case."

But Shapiro soon found himself at loggerheads with the Department of Justice in Washington. "It is no secret that in the Peter Lee prosecution," he testified, "I strongly advocated for the most aggressive approach in pursuing Mr. Lee on charges of espionage.
It is also no secret that I had disagreements with my supervisors at the U.S. Attorney's Office and with the Department of Justice about how the case should be investigated and charged."

On hundreds of other cases that Shapiro had prosecuted, he did not need approval from Washington. But espionage was different. No spy case could move forward without a green light from the attorneys in the internal security section of the department.

And the lawyers in Washington quickly came to regard the
ROYAL TOURIST
case as a quagmire. The problem was that the information Lee had revealed in China on both occasions was classified at the time he had disclosed it, but later declassified and discussed publicly by US officials.

There is considerable misunderstanding about the classification system both in and outside the government. Documents are classified by executive order, not by law. Indeed, although the military classified documents starting in World War I, there was no civilian document-classification system until President Harry S. Truman issued the first presidential order on classification in 1951. Later chief executives have issued similar orders, providing that documents may be marked
CONFIDENTIAL
,
SECRET
, or
TOP SECRET
, depending on how much damage to national security their disclosure might cause.

But a whole superstructure of special intelligence classifications above
TOP SECRET
has sprung up, exotic code names like
DINAR,
UMBRA,
or
SPOKE,
usually assigned to protect the methods used to gather intelligence, such as spy satellites or electronic intercepts.

An executive order, in short, is not a law. The classification system was not established by Congress. Created by the president, it applies only to employees of the federal government. Only Congress can pass laws. A president can instruct federal employees about how to mark a document
TOP SECRET.
But disclosing a classified document does not necessarily break any law.

The espionage statutes date back to 1917 and World War I, long before President Truman invented the classification system. With a narrow exception dealing with codes and communications intelligence, the statutes do not penalize disclosure of classified documents as such but of information "relating to the national defense."
This is a crucial distinction, since many documents that should never have been classified in the first place are marked
SECRET
or
TOP SECRET
by overzealous bureaucrats. Sometimes officials wield the secrecy stamp on a document to feel important or because they know that otherwise their superiors may not even bother to read it.

To criminalize leaks of government information simply because the information is marked classified would be absurd: in 2008 the government classified 23,421,098 documents,
a total that had more than doubled in six years. It is hardly likely that the government has that many real secrets to withhold from its citizens. Unnecessary classification is a fact of life in Washington. During World War II, the Army actually classified the bow and arrow as a "silent flashless weapon." One government agency classified the fact that water does not flow uphill. In the early years of the space program, the Pentagon classified the fact that it was sending monkeys into space,
although a plaque on the cage of a macaque at the National Zoo announced to visitors that this particular monkey had been sent up two hundred thousand feet on an Air Force rocket.

When the government tries to invoke the espionage laws to prosecute someone, it must prove that a particular classified document fits the statutory definition of "relating to the national defense." It is not enough for prosecutors simply to show that a document is classified, since it may have been improperly classified. Otherwise, if publication or disclosure of classified information were illegal per se, the government would have total control over information and the First Amendment would become meaningless.

As a practical matter, however, prosecutors are usually reluctant to bring a case before a jury unless they can show that a defendant has revealed classified information. If the information is not classified, jurors might well wonder how the government can claim that the documents relate to the nation's defense and that their disclosure would harm national security.

And that was precisely the problem that the prosecutors faced in the
ROYAL TOURIST
case. A document that Lee had written in 1982, which he discussed in China in 1985, was classified. But scientists the world over were working on inertial confinement fusion, and by 1993 the ICF experiments that Lee spoke about had been declassified.

Moreover, by 1993 the Energy Department was encouraging other countries to simulate nuclear explosions in the laboratory—the ICF work that Lee was engaged in—in order to discourage other nations from conducting atmospheric nuclear tests. Michael Liebman, the Justice Department attorney responsible for the Lee case, worried that if Lee was prosecuted for his lectures in 1985, he could claim he was only trying to help persuade China not to conduct tests of nuclear weapons in the air.

The scientist's discussion about the ocean-imaging project and the use of radar to track ships and subs presented an even greater hurdle, in Liebman's view. But Lee had admitted telling the Chinese in 1997 that the radars could also be used to detect submarines. Liebman thought he could use that indiscretion to build an espionage case against Lee. Then Liebman was dismayed to discover a March 1995 article on the Livermore website, a date that was two years before Lee's trip to China.

Headlined "Radar Ocean Imaging," the article discussed Livermore's role in the joint US/UK program:
"This project focuses on the detection by radars of surface manifestations of moving, submerged submarines." Oops.

It got worse. A few days later, Liebman found that in April 1994 Dr. Richard E. Twogood, who managed the ocean-imaging project at Livermore, boasted in an open session of the House Armed Services Committee that the program "has made important progress in the development of methods to detect submarine signatures with remote sensing radars"
that could measure "surface effects produced by undersea disturbances."

When he testified before the Senate Subcommittee on Department of Justice Oversight in 2000, Twogood had difficulty deciding on the level of classification of the data about submarine tracking that Lee had disclosed in China. He had reviewed Lee's confession to the FBI. "When I saw the videotape and the audio tape, my immediate response was that it is at least confidential, and I thought it was likely ... secret."
Twogood said he told Bill Cleveland, then in charge of security at Livermore, that "it probably was secret." A document introduced at the hearing indicated that Twogood thought the information about detecting submarines was classified "Secret/Crimson Stage."

Shapiro was unhappy that Twogood was the only government witness provided to him who could testify that Lee had disclosed classified information. But Twogood waffled on the level of classification.

The prosecutor kept asking the Navy for someone who could clarify just how secret the submarine-tracking data was. Twogood, Shapiro told the judiciary panel, was "the best I could come up with." But, he added, "Nevertheless I had Twogood and I was going to use Twogood." The problem was that "Dr. Twogood's opinion evolved." As a witness, Shapiro fretted, Twogood was not too good. "Dr. Twogood, in my view, would have gone down in blue flames on cross-examination."