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| FAULT FINDING | |
 September 26, 2000  |
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Two U.S. senators and two legal experts discuss today's Senate hearings and the government's handling of the Wen Ho Lee case.
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GWEN IFILL: For more on the government's handling of the Wen Ho Lee case, we turn to two of the senators who participated in today's hearings: Republican Arlen Specter of Pennsylvania, and Democrat Richard Bryan of Nevada. Joining them are two legal experts: Former Federal Judge and U.S. Attorney Robert Bonner, and a former National Security Adviser for the Department of Justice, Neal Katyal, who now teaches at Georgetown Law School. Senator Specter, if we can start with you, can you tell me whether Janet Reno and Louis Freeh answered the questions that you had for them today?
GWEN IFILL: Senator Bryan neither the attorney general nor the FBI director backed down a bit from their prosecution of Wen Ho Lee today. Did you get a sense that the government knows what it did right and what it did wrong? Or did you have an answer to that question? |
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SEN. RICHARD BRYAN: I think the answer to that is that clearly there
is evidence, in my judgment, to indicate the kind of conduct that Dr.
Lee was guilty of, that should have warranted a prosecution. I have
a couple criticisms. One, Dr. Lee's conduct involving highly suspect
contact with individuals who were under investigation of espionage,
subsequently he denied that contact to the FBI, and only when confronted
with the evidence did he correct it and acknowledge it. That dates back
to 1983. There were incidents in 1988 and thereafter that were unrelated
to this downloading of 400,000 pages of classified information. That
would be enough if stacked on top of one another to be the equivalent
of a 13-story building. GWEN IFILL: But there's no evidence that that did happen. SEN. RICHARD BRYAN: No, wait. There is evidence that he downloaded that information. There is no evidence that he in fact transferred that as part of... Of course, he's not charged with that. GWEN IFILL: That's of course what I meant. What do you think about what Senator Specter said about the conditions under which he was confined? SEN. RICHARD BRYAN: I'm very critical of that. I think Senator Specter makes a very good point of that. I don't know how you can justify that kind of treatment. First, as Senator Specter pointed out, the interrogation by the FBI is wholly inappropriate. In fact, they threatened Dr. Lee with electrocution and made reference apparently to the Rosenbergs. The FBI Director, Mr. Freeh, acknowledges that was improper; that was. The circumstances of his confinement, his being manacled, the limited exercise period, the light that apparently was on in the room 24 hours a day. One simply cannot justify that. I think the both the FBI and the Department of Justice need to be forthright with us as to why that was allowed to occur. They had a responsibility to monitor that. They were concerned and legitimately so that Dr. Lee not have contact with any outside party so that information could be disseminated to that party and potentially result in the destruction or removal of the missing tapes. But they did have an obligation to monitor that more carefully. In that respect, I think they failed. And I was not persuaded as to the conduct. I think it was inappropriate. GWEN IFILL: Senator Specter, today was the day that the federal government was supposed to begin debriefing Wen Ho Lee, getting the information of where those tapes went, where the copies went. Yet instead they were testifying before you at congressional hearings. What was the reason for congressional hearings? |
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| Many problems in Department of Justice | ||||||||||||||||||||
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SEN. ARLEN SPECTER: Well, the reason is to have congressional oversight
as to what the Department of Justice and the Department of Energy did.
There are other agents who could debrief Dr. Lee. The debriefing is
not going to be done by Attorney General Reno or by FBI Director Freeh.
There was really no reason to delay that at all. We are looking even
more broadly than the Dr. Wen Ho Lee case and other cases involving
espionage. GWEN IFILL: Okay, Senator. I'd like to bring Robert Bonner into the conversation. What do you think about the government's handling of this case? ROBERT BONNER: Well, look, I think that there are some serious questions that have been raised. I grant you that making a prosecutive decision in a national security case is a very difficult matter. It is a decision ultimately that rests with the Department of Justice. And I think from everything I know about this case, you know, the government had at best evidence to charge Wen Ho Lee with transfer of classified information. Basically mishandling classified information. And so it seems to me, at least based upon what I know, that the Department of Justice made some troubling decisions here by overcharging this case, you know, charging that there was an intent to injure the United States or to benefit a foreign power. I mean, which carries a life sentence. It just does not appear there was evidence to support that kind of charge, and it's that kind of charge really that warranted the denial of bail and the detention of Wen Ho Lee. So there... this is... it seems to me this really reflects upon the professionalism and competence of the Justice Department in a fairly profound way in terms of what happened here. GWEN IFILL: Neal Katyal, you worked at the Justice Department and advise them on espionage matters. Is this business as usual the way this was handled? NEAL KATYAL: I didn't work on this case, but it seems to me that quite clearly the Justice Department did handle this case in the right manner, and I think Senator Bryan hits the nail on the head. We've got evidence of 400,000 pages of highly classified material that's been downloaded by Mr. Lee. We've got... it's downloaded over 70 days, 40 hours, at a point in which Mr. Lee has to cross through perimeter fences, have his palm scanned, has to certify that he has acute clearance, the highest security level clearances. And he does all that and then says that he had... he signed a statement saying that he had not mishandled this information when the FBI executes a search warrant just a few days later and finds out that he had mishandled it. GWEN IFILL: No prosecutorial excess in your opinion? This is the way it happens all the time?
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GWEN IFILL: Was Mr. Lee being treated as it seemed from a distance, especially from critics, as if he were guilty until proven innocent? NEAL KATYAL: I don't... from my outside view of the case, it didn't every look that way. It seemed like from the very early stage, the FBI knew that Lee had engaged in a pattern of deception. They knew that Lee, for example, had said that he hadn't met with foreign agents when he had. Lee said that he hadn't brought classified information home when they knew he had. There are a lot of instances in which Lee's very highly paid defense counsel, his dream team counsel has spun up this story of Lee being unfairly targeted, but this guy is a serious felon. GWEN IFILL: Your reaction to that, Senator Specter?
GWEN IFILL: Well, Judge Bonner, why don't you respond to that. ROBERT BONNER: Look, whether it's a national security case, such as this, or any case that the Department of Justice handles, there's one common denominator. That is the Department ought not to bring an indictment against someone on charges that it cannot prove. And it knows that it does not have sufficient evidence to prove. If they had enough evidence to prove the more serious charges here, that there was an intent to injure the United States, they should have prosecuted this case. That's how you get information from someone who you know or you believe has aided a foreign power. If they didn't have that evidence, they shouldn't have brought these charges in the first instance. That's what concerns me. GWEN IFILL: Senator Bryan? |
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SEN. RICHARD BRYAN: Let me say there's plenty of blame to go around
here. The Department of Energy and the FBI ought to have moved to revoke
the classification years and years ago, long before this downloading
situation. The FBI in conducting its investigation, it was inept. They
provided neither the resources nor the priority nor the competence in
this investigation early on. GWEN IFILL: Mr. Katyal, the controversy of the handling in this case, does it put a damper on future espionage cases? Are people less likely to talk? NEAL KATYAL: Absolutely. Espionage cases are brought at the early stages when prosecutors find out, they have very shadowy information. It's third hand, hearsay, and it's pretty tough for a case to be put together when you now have these very experienced defense counsel who poke holes when you have a rule, which is important for constitutional due process, that information come out in open court, it's going to be very tough to bring these espionage or classified information cases in the future. GWEN IFILL: Briefly, do you agree with that? Who is that, Mr. Bonner?
GWEN IFILL: Gentlemen, thank you all. |
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SEN.
ARLEN SPECTER: They started to, but there are a great many more questions
to be answered. Judge Parker, for example, said that the government
had an opportunity to obtain from Dr. Lee all the information about
the tapes back in December of 1999, together with polygraphing, and
the judge said that he was very disappointed that the matter had dragged
out so long. There was really no adequate explanation as to why that
offer was not taken up. Director Freeh said that what was offered in
December of '99 was different from what they ultimately got, but that's
not what Judge Parker had to say, and the Subcommittee on Department
of Justice Oversight, which I chair, will go into that matter in much
greater detail. Similarly, the answers about the manacles were not satisfactorily
answered. There was some special administrative treatment here. And
here you have a man who is a very slight man who has his legs in irons,
who has his wrists in irons. And they're attached to his waist. And
there appeared to be no justification. Plus, an interviewing FBI agent
was very unusually strong, which Director Freeh conceded in threatening
Dr. Lee with the death penalty, in effect, which was what the Rosenbergs
got many years ago. So that there is an inference, a possible inference
that these extraordinary measures were designed to try to break Dr.
Lee and to force him to plead guilty. And we're going to be looking
at that in much greater detail. 
My
criticism of the Department of Energy and the FBI, I think his security
clearance ought to have been revoked at that time. With respect to the
actions of Dr. Lee, as it relates to the downloading, you're talking
about 70 hours. So this was not just an accidental thing. You're talking
about 400,000 pages of classified information. You're talking about
an attempt on 15 different occasions to access the x section, which
is the highly classified division, one of which occurred at the early
hours of Christmas Eve. All of that, in my judgment, indicates highly
suspect conduct. And the information, as the intelligence community
has explained to us, taken in its totality, would be extremely helpful
to a foreign adversary and indeed might assist them in compromising
the integrity of our own nuclear weapons arsenal. Those are serious
charges. 
There
are many problems. We have found in the Department of Justice. And we
need to get at these in a prompt way. One of the grave concerns is that
there were many danger signals and the Department of Justice allowed
Dr. Lee to have access to these highly classified matters long after
they should have. FBI Director Freeh sent one of his top assistants,
John Lewis, to talk to Attorney General Reno personally to get a warrant
for Dr. Lee under the Foreign Intelligence Surveillance Act. And the
attorney general referred it to a man named Dan Seikaly, who had no
experience in the field, applied the wrong standard and ultimately the
warrant was turned down. And our subcommittee has proposed remedial
legislation so that when a matter comes from the director to the attorney
general, that she has to have a response in writing. 
NEAL
KATYAL: Espionage cases are so rare, and they have so many unique facts
that there's no common rubric. But I will say that this type of prosecutorial
decision is like the prosecutorial decisions that the Justice Department
makes routinely, not just in espionage cases, but more generally. When
there's a danger to the community, preventive detention is used, as
it's been used 22,000 times in a year. This is not unusual when you
have highly sensitive material at issue. And remember, here as Director
Freeh said in today's testimony, this was... what Lee downloaded was
the electronic blueprint that contains the exact dimensions and the
ways in which our nuclear bombs are built. 
And
the Department of Justice clearly made some mistakes. But to put this
in context, even with all those mistakes, we have an individual whose
activities potentially compromised the security of the United States.
Those documents, 430,000 pages in the hands of a foreign adversary would
be extremely dangerous, and the intelligence community has agreed with
that. So Dr. Lee's conduct is totally inexplicable. It is indefensible.
He is, as has been said, a serious felon. There are legitimate questions
raised about the confinement and those circumstances, I agree, but I
think we do need to put it in context, that the actions taken were correct
insofar as prosecuting Dr. Lee. 
ROBERT
BONNER: That's why you have the Classified Information Procedures Act
that Congress enacted is to prevent gray mail and to protect classified
information that has to be introduced into evidence from becoming public
or available to the media and the like. I mean, there are some protections
in the Classified Information Procedure Act that permit this kind of
prosecution. Otherwise, you could never prosecute an espionage case
or the more sensitive the information. That's why we have CIPA or that
act, is to help the government prevent the very classified information
from becoming public. And there are procedures for doing that.