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interview: brian sun
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Brian Sun is J.J. Smith's attorney. His argues that the case against J.J. does not warrant criminal charges and should have instead been handled administratively by the FBI, who Sun feels is trying to clean up its image by making an example of Smith and Katrina Leung. Sun served as attorney for Johnny Chung in the campaign finance scandal in the late 1990s and also represents Wen Ho Lee in his civil suit against the U.S government. He draws on his experience from these cases to evaluate how the FBI goes about prosecuting espionage. This interview was conducted on Sept. 4, 2003.

You've been involved in two cases that went to trial, or are going to trial -- the Leung and Wen Ho Lee -- and you're also involved in campaign finance. So you've watched the FBI's FCI, the foreign counterintelligence group, at work, what they bring to the courts and what the court then does with it. Give me your impression, your overall review of the FBI's FCI program.

One of the things that is important for people to understand about the counterintelligence operations of the FBI is that most of the agents assigned to CI type work are basically intelligence or information gatherers. They don't generally focus on criminal investigations. Remember, they collect information, and then evaluate what importance it might have vis-a-vis national security interests.

Although there may have been some early fears that sensitive secrets were somehow imparted to the Chinese government, in this case, that's quite to the contrary.

In cases involving the so-called campaign finance scandal and the national security implications [from] our nuclear weapons labs, to wit, the Lee case, those were matters that did ultimately turn into criminal investigations and prosecutions. The thing that I like to point out to people is that there's a big difference between information gathering, intelligence assessments, and proving evidence of crimes in court -- a big difference. The former, the intelligence gathering, the information gathering -- a lot of it is circumstantial information, innuendo, trying to evaluate whether it really has any real weight to it.

A criminal prosecution investigation involves a lot more. It means hard evidence, something that can be persuasive, reliable, admissible, credible. I think the gulf between the two exposes some of the problems that we had, and that the FBI experienced in both campaign finance and the espionage case, so-called espionage cases. The bureau was unable to distinguish between what was intelligence that should be relied on, versus what should be admissible hard evidence that actually could be proven with credibility in a court of law.

There was a substantial problem in that realm and I think a breakdown, if you will, in appreciating the difference in those two types of tasks, if you will.

The FBI is supposedly a professional organization, is involved in lots and lots of prosecutions. But you look back on the history of the China program, and there seems one [screw]up after another. What's going on? Why are they bringing the cases then?

In terms of trying to understand why perhaps some of these cases experience problems, I think you go back to the point I just made -- which is that trying to translate and make a piece of raw intelligence, like a meeting in a hotel room in China between a Chinese scientist and an American scientist and turning that into a criminal prosecution -- requires a lot more than just knowing two people met in a room, or may have talked about a certain subject.

That's the problem you had in these types of cases. People were extrapolating that a meeting in a hotel room could well have been sinister, and that what was exchanged there somehow implicated national security interests. But to prove that and to establish whatever happened in a hotel room seven, eight years ago, is very difficult in a court of law from a criminal prosecution standpoint.

But then why bring the cases?

That segues into an issue that I think manifested itself in the campaign finance case and the espionage cases; namely, that there were other factors influencing the FBI - namely, partisan politics, media interest, intense media interest in the subjects of China and their involvement in our political system, and in perceived perceptions that the Chinese were in fact trying to steal our technology, either for military purposes or for industrial advancement.

So when you have those forces that come into play -- media interest, partisan politics, congressional committees, administrations, the executive branch that are highly sensitive and defensive to criticism that they're being soft on national security -- all those variables coming into play affected in no small measure, in my view, the FBI's approach to these cases and the pressure that was brought to bear on the FBI -- to do what? To translate this information that they had gathered in these cases and turn them into criminal prosecutions, because the political pressures were such that heads were being called for on the chopping block, and the bureau had to deliver them. …

Give us a view of the inside of how difficult it is to get into a prosecution or get at the truth about what's really going on in these cases.

… In these cases, the espionage cases and the campaign finance cases, the interesting part of all that is this notion that will overlay this: that somehow a country, China -- a communist country and therefore a historical adversary to the United States in philosophy and political process, but one who we are very friendly with from a business and economic perspective -- is out there and still a potential threat to this country. That overlays all the cases that you're talking about -- this sort of fear, and some would say phobia, of the fact that this country still poses a threat to [our] country, that they are engaging in activities designed to either undermine our political processes, or to steal our technology and put us in a position where they might gain a greater advantage over us in some way; either in nuclear weapons or technology that would affect our business. As a consequence, in dealing with these cases, you have to deal with sort of the sense that there's someone out there in China looking to do us harm.

The second layer that made these cases so difficult and interesting from clients that I represented is that Chinese-Americans got caught up in this -- the notion that Chinese-Americans would be the ones co-opted or part of some sinister fifth column recruited by some Chinese intelligence service to go do us this type of harm that is perceived that this country is trying to cause us.

Now, there are many of us who believe the Chinese, particularly the Chinese intelligence guys in China, are probably scratching their heads saying, "What is up with these American guys? Why are they charging these people? We don't know these people very well. We don't have much to do with them;" the Johnny Chungs of the world, the Johnny Huangs of the world, the people who Congress made a big deal about during campaign finance. "It's just amazing to us," I think that's what they're saying. "The Americans are making a big to-do about those people. Thank God, because the real people who we may have over in the States are probably way under the radar scope."

That's what I think overlay these cases, the sense that maybe they were picking on the wrong people; that is to say, the government. They're picking on essentially loyal Chinese-Americans, and in a way, really blew way out of proportion just what activities they had engaged in that somehow were later translated by creative prosecutors into a crime.

I give you an example. You have a situation where someone arranges for an introduction of a prominent Chinese businessperson with a senior member of a political party or the senior official in an administration like Department of Energy or Department of Commerce. In China, that counts for something, because it's a photo op. It's a picture you put on the wall; it gives you some stature in China, that you'd met with some big mucky-muck in the United States like Clinton or even then-Vice President Gore. That can actually get you some mileage in China. It's a matter of … stature that, "Oh, this person met the president of the United States. He must be important."

That may well have been the total extent of what occurred in that case, but people chose to read more into it. There was something that was more sinister there to be had. When you stop and think about it, what's the difference between the Chinese business official who wants to shake hands with the secretary of energy than any businessman from Texas who'd want to do the same thing and put it on his wall and say, "Hey, I'm friendly with Hazel O'Leary. I met her at a dinner," and maybe even embellish that he might have had actually a personal relationship with that individual? There's no difference.

But the fact that the person is from China made a big difference, because somehow there's this threat, this sinister aspect of that person meeting with some of our people.

In your mind, is there a threat? What is the threat of Chinese espionage? You've got to start there before we pull apart whether the FBI has got it right at all.

There are some who would opine -- and I actually share this viewpoint to some extent -- that the so-called "threat," and I put the word threat in quotes, is really more of an economic nature. China, being one of the most populated and energetic nations on the planet, particularly in the business sector, probably poses more of an economic threat from a competition standpoint, from a balance of trade type notion, to the United States than from a national security standpoint. There are others, of course, who don't share that viewpoint. They still view China as a communist power that has nuclear capability and could therefore be a physical threat to the U.S. Of course, they have nuclear weapons, some of which are capable of probably inter-continental striking capability.

But at the end of the day, many people I think -- and Chinese-Americans as well -- view China as a business and economic partner, that we can benefit a lot from trade with them and they from us; that we are going to be in serious competition with the Chinese in a number of economic areas, in trade in terms of goods and services, and that is where we, as a country, ought to be paying attention to them. Not so much as a country that's trying to infiltrate our political system and try to co-opt our politicians, because I think that concept, that sort of specter which pervaded the campaign finance situation, is total nonsense.

The Chinese don't have that means, they don't have the resources to do it, nor would they care to want to do that. All they care about is the same [thing] we care about -- that you have an administration friendly to China in terms of business and trade and economic issues, and hopefully one that isn't too different in perspective on worldwide security issues.

The notion that they want to spend a lot of time and money making donations to our political processes so that they can somehow influence candidates to vote their way in certain things -- they don't do it that way. They do what every other country does. They hire lobbyists in Washington who go and sort of openly do what lobbyists do, which is lobby on WTO or whatever it is that might be of interest to that country on the plateau that matters. ...

How did J.J. Smith view his job? Tell me about him as an FBI man, how he viewed his job. Was he the normal G-man?

I think people who know J.J. will tell you that Mr. Smith was a dedicated professional who took his job very seriously, liked his work. I think he thought, and I think his colleagues thought, he was good at what he was doing. He had a lot of background and expertise in it, because he had spent a number of years working in this particular area. He had resisted reassignment and promotional opportunity so he could stay working in this particular field. I think the nature of the work he found interesting because of his general interest in China. But he was someone who I think got along very well with people in general; was respected, not only by the fellow agents he worked with, but by the prosecutors that he worked with. He sort of fit the mold of what you would want an FBI agent to be, I think is what people would say about J.J. I don't think there's much dispute about that.

What is that mold? …

You know that here's a guy who is just a solid guy, I guess is how you'd want to put someone like J.J. He goes to work, he does his work thoroughly, he's diligent, he works the long hours when he needs to work them, and professional, I think, is what people would also say. He just treated everybody professionally. The younger agents, I think they had respect for him, because here was a guy who was a veteran hand, who was one of those people that helped make the FBI into what it was. A lot of people have a lot of respect for the organization. His particular work, Chinese counterintelligence, was not something that he could talk much about. But part of his work did allow him to go out into the community and be visible, and I think he enjoyed that aspect of his job, as well. ...

Was he respected in the Chinese-American community? Was he knowledgeable about people?

I think there were people in the community who knew him and knew what kind of work he did. It's not something where he was holed up in an office and was doing covert operations day in and day out. That wasn't the nature of his work. But that's about all I can say. I really can't go into much of what he did and how he went about doing it. …

We've talked to a lot of FBI people. A lot of them look at this case, the Leung case and J.J.'s involvement, as devastating to the China program. They'll keep bringing up the Hanssen case as an equivalent case. What's your point of view on that take of what went on here?

Although I can't comment specifically on the Leung case, let me just approach your question from this standpoint. People should understand that the FBI counterintelligence operations vis-a-vis China, when they involve the recruitment of assets, sometimes the information that they were getting was not the kind of stuff of which you'd think would be all that exciting or interesting. Intelligence operations in general involve very mundane things, like who do you know, and does that person have any connection with the government? And if they don't, then they just write it down. A lot of it is just innocuous stuff. Only in certain limited instances would you have assets who might be able to tell you about somebody they might know who actually might potentially have a connection to a Chinese intelligence operation.

So I think people have to understand and appreciate that the operations conducted by the FBI vis-a-vis China were not the kind of, "Let's find out what we can get out of the Chinese and what they're doing in China and all the covert sort of stuff of gathering and spying, so we can benefit and know what the Chinese are doing." A lot of what the counterintelligence operations here vis-a-vis China was just identifying who were the local members of the consulate who might be engaging in intelligence activities for the Chinese government; who in the local business community might be sympathetic to the Chinese government such that they might be the subject of potential recruitment, so you might want to keep and eye on them. That's the kind of work that Mr. Smith and others in his squad were asked to do. …

Was [Katrina] a good asset? How important was she to you?

It's hard for me to comment on a public, active case. I think it's pretty clear that Katrina Leung was a major and prized asset of the FBI through the many years that they worked with her -- both from the volume and wealth of the information she provided -- but also, just in general, [the] quality of her information proved to be credible time and time and time again. That's about as far as I can go so far, because the case is active and pending. ...

Why would Katrina Leung have been someone attractive to work with? What did she have to offer?

I can't get into really the specifics of how Ms. Leung was attractive to the FBI. I think it was pretty known to the FBI that she had ties to various people in the Chinese overseas community that were interesting to the FBI, so that would have made her an attractive asset to recruit.

To some extent, being involved with an asset generically here that is of such importance -- shat does that do for an agent involved with that asset?

Just talking generally, counterintelligence agents who work with assets, the nature of the relationship between the agent and asset can be different, depending upon the level of information sought, the degree to which that asset is actually doing work for the FBI. In other words, an asset can be just someone who works as a janitor in a consulate, and you just ask them maybe once every few months, "Did you see anything suspicious?" That could be an asset. …

When you have a situation where you have a long-term asset, someone who you actually might be paying money to, the bureau has a fairly structured process by which you write memoranda and describe the process and justify the payment of the money. That's used to sort of keep accountability, if you will, of what you're doing with your asset.

So how important are good assets to an FBI agent?

They're invaluable, particularly from an intelligence standpoint. Assets are at the heart of where you get your information from, not unlike an informant is in a drug case or someone who you're working with and maybe penetrating a criminal organization. Your asset is your key to determining what's going on in a particular area that you're interested in.

So how important was Katrina Leung to J.J. Smith?

Ms. Leung was very important to the FBI as an asset because of her various ties, both in the local Chinese-American business community, the overseas Chinese community I would say, and some of the ties she developed in China. I think that's clear over the years that that's where the FBI thought she had substantial value. They chose to exploit that, I think, significantly, to the point where they put her on the payroll, which, again, is well known. …

Did [J.J.] ever talk to you about his work and the importance of his work and how he viewed himself within the FBI?

Mr. Smith is very proud of the work he did while he was at the FBI. There's just no question about it. He felt that the work he was able to do, the information he was able to obtain as part of his job, was materially valuable to the United States and our intelligence gathering -- our counterintelligence gathering information and things of that nature. I think he's very proud of the work that he did.

So when this case comes up, how does he take it?

I can't talk much about Mr. Smith's situation other than to say J.J. is very disappointed that the government chose to pursue this case against him. Whether you could say mistakes in judgment were made by him in some aspects of this case or not, we don't think criminal prosecution should have been brought as a consequence.

There could have been other ways to handle this. But obviously, the government chose to approach it differently. Probably, in no small measure, the government's actions were influenced by other things that have happened within the bureau over the years and recently; at least that's what we think. So we think it unfortunate. I think J.J. and his family hope that things will work out, because he thinks, at the end of the day, a prosecution should not have been brought.

What other things would influence a decision like this, that the bureau wouldn't have gone in other directions to solve the problem?

Part of the problem in this case, as with others, is information comes to the attention of the decision makers, and sometimes more is made of that information than what actually turns out to be [the case]. That's my general perspective of some of these cases. That, coupled with some of the external political pressures and the public relations pressures that exist, often will influence whether or not a case will be pursued.

In J.J. Smith's case, we find ourselves in a situation where the FBI, over the last several years, has taken several, what I'll call "public relations hits." The Wen Ho Lee case, Waco, Ruby Ridge, we don't need to name them. So there's considerable pressure on the bureau to try to communicate to the public and to the world, "Look, we've got a problem internally. We're going to take care of it. We're going to be swift and decisive in how we do it, so that the public at large knows that, look, if we screw up, we're going to deal with it forcefully and send a message out to, not only the world, but the agents who work at the FBI that misconduct is not going to be tolerated." That appears to be the perspective of the bureau.

On the other hand, from J.J. Smith's perspective and that of others, we think the bureau is sort of reacting -- and perhaps overreacting -- to external political pressures, to public relations nightmares, and they are being unduly and harshly sanctioned and punished for conduct which arguably could have been dealt with administratively on some other means short of a criminal prosecution. …

What has been written about J.J.? In all the articles and everything else, they say he's a rebel. He doesn't want to wear a tie. What is that aspect about him? How does he view that? What's the reality?

I don't know whether my client should be viewed or could be characterized as a rebel. Throughout California, it's such that it's sort of viewed as being more casual and less formal than maybe the bureau was back East. So my client not wearing a tie, I don't think was any great shakes. I think he was just that kind of guy. J.J. was an informal, more laid-back kind of guy. Deep down inside, he probably had the same type of intensity and pressures that we all feel. But certainly outwardly he was a laid-back guy in the eyes of many who worked with him. …

Allegations that J.J. was sloppy, was carrying around classified docs and stuff like that, what's the answer there? Put it in perspective.

I think the suggestion that Mr. Smith was carrying around highly sensitive information is largely exaggerated. There were documents that all agents, I think from time to time, would put in a briefcase, that might arguably be sensitive in some way, shape or form. But at the end of the day, when you're talking about information that materially involves super secret, sensitive national security information, I think generally agents are very cognizant of that, and don't flout the rules in that regard. With respect to Mr. Smith's case, I think the suggestion that he was walking around with highly sensitive, super secret information and data is really not well founded.

And your opinion of the leak that came out early on that he alone was the only agent taking out material overnight?

You're talking about the handling of classified information. Whether you're John Deutsch, the head of the CIA, or a Wen Ho Lee, or some other law enforcement agent working counterintelligence, there are probably every day technical security violations taking place; some more severe and serious than others if discovered, others very, very benign. From a criminal standpoint, [there are] very few prosecutions in this area. Usually if there's been some technical violation, there might be some administrative sanction such as a suspension without pay, a reprimand that goes in your personnel file, perhaps reassigning you to a different area involving less sensitive information. But termination? Criminal sanctions? Those were generally not in play for the kinds of violations of the rules that you're referring to. ...

In a situation like J.J. and Katrina, how much leeway is there in this most important of areas, which is gathering information from an asset?

Agents who handle assets often have a lot of discretion in how they deal with the asset. But there are internal mechanisms and controls for the agent reporting up the chain of command, if you will, about what they're doing. I don't think that was any different in Mr. Smith's case.

When you're dealing with any type of informant or asset, usually there are one or two agents who deal directly with that informant or source or asset and develop the relationship with them, so that the informant or the asset can feel comfortable with dealing with someone in your agency. That's not different in any other agency or other aspects of what the FBI did, whether it's narcotics, or other types of law enforcement-related activities where you use informants or assets. You want to have some agent who develops some relationship with the asset, so that they can feel comfortable, and therefore encouraged to be more frank and forthcoming in providing information.

The sexual relationship -- how much has that skewed in your opinion the way this case is looked at? …

In national security investigations that involve government employees such as FBI or CIA agents or someone of that ilk, one of the threshold inquiries is you look at the nature of the alleged misconduct. Was it an affair with somebody? Did they take them on a vacation and didn't report it or something like that? You ask yourself, "Has national security been compromised?" and what-have-you.

Many times, these types of alleged improprieties are dealt with administratively. We believe in Mr. Smith's case this case should have been dealt with administratively. Now, he had already left the FBI by the time this all became a big brouhaha. But the point is that there are different ways to treat these sorts of alleged improprieties -- having an affair or doing something with an asset that might be perceived to be not totally kosher -- and there are ways to deal with it.

In the national security context, sometimes it is much more important to find out what happened than to really decide whether you want to do a prosecution over a violation that would have ordinarily resulted in reassignment, a suspension without pay or demotion. Unfortunately, the government in this case chose to pursue criminal prosecution, as they did in Dr. Lee's case, when they could have approached it totally differently, done full debriefings, and figured out what damage, if any, had been caused by the alleged impropriety which, in the Smith case, was the allegation that there was an undisclosed affair. …

Some say the relationship and the pillow talk and that all the secrets of the world were released here. Put it into perspective.

I think it's important for people to know that, although there may have been some early fears that sensitive secrets were somehow imparted to the Chinese government, in this case, that's quite to the contrary. There's no evidence of that. I think the charges reflect that Mr. Smith is charged with gross negligence being how he handled information around Ms. Leung, who he viewed as a very trustworthy, reliable asset.

So the battle that's going to be fought in the courts in this case is really over how he handled information around her. I don't think there's any real concrete evidence that's been brought out that suggests that anything of a super secret nature was somehow imparted to her that was passed on in some way. That's just not present in this case. Perhaps the media coverage in this case has suggested to the contrary. But it's important to note that the actual evidence of this case does not support the notion that there was any super secret information that was imparted to the Chinese government.

So then why the view out there amongst, not only the public, but the FBI, a lot of FBI agents, that there's a chance that she was such a good asset, and she was at such high levels and she was believed so much, that I've had FBI agents tell me there's a possibility that every operation, every asset involved in China, could all have been blown, simply because Leung was trusted so much?

I can't comment on the particulars of what was going on in Ms. Leung's case. I think it is important to know that Ms. Leung's track record for the FBI was excellent throughout the years, up through and including the recent charges. That was the perspective of my client. I think that was the view of the FBI. To suggest through innuendo and speculation that somehow she was privy to super secret information, or that she passed it on in some nefarious way, is in fact just that -- rank speculation.

What you have here is the overlay of the fact that she was a "double agent." The question is, if you believe some, she may have been a double agent for the Chinese. Or was she, in fact, as we viewed her, a double agent for us? So the nature of the work that she did involved her having to give information to the Chinese intelligence people she dealt with.

So it's hard to get a sense of really what's going on here, other than the fact that you have to look at what it is that they the government believes was imparted. There's no indication that anything that she told the Chinese was in any way out of the realm of what she was supposed to say. …

How did Smith find out about Leung passing information to Mao? ...

… The indictment charges and the government's theory of prosecution is that Mr. Smith became aware, at least in the early 1990s, that Ms. Leung might be doing things that were not authorized. The indictment suggests or charges that he became aware of that through some communications with some of his FBI colleagues. There was a meeting in Washington, and then there was some responsive reaction by Mr. Smith and his colleagues as a result of that allegation.

The way in which they handled it from there forward I believe is classified, so I can't get into it. But it is pretty clear from the record that the FBI continued to have confidence in her and continued to work with her, because they continued to keep her on the payroll and use her as an asset for many more years after that reported incident. ...

Does J.J. Smith think that Leung is a double agent?

It's sort of interesting in this sort of espionage nomenclature to say who's a double agent, who's a triple agent. Seems like something right out of a novel, but in essence, I believe the FBI's view was that she was a triple agent for us in the sense that she was working for us. The Chinese thought they had then recruited her to be a double agent for them, but we really knew that they knew that she was working for us, and therefore, we were operating her as a triple agent. The other way to look at it is the Chinese thought they had recruited her, but in essence she was really working for us and therefore that would make her a double agent for us. So as convoluted as this terminology is, the essence is the FBI always truly thought that Katrina Leung was in their camp.

Does J.J. believe that to this day?

I can't comment on anything other than the fact that Mr. Smith maintains that, throughout the time he worked with Ms. Leung, he had every reason to believe she was as true blue and loyal to the U.S. and working with the FBI. I believe his perspectives were shared by his colleagues. ...

Leung's lawyers claim J.J. got a break to some extent, because he's FBI and there's a double standard here, on both sides of this one. What's your take on this case?

There has been some suggestion that there's some type of double standard operating here, that Mr. Smith is getting more preferential treatment than Ms. Leung. I would say that's nonsense. We think that the government has been very harsh in terms of how they've dealt with Mr. Smith in deciding to pursue criminal charges. So we reject the notion that he's getting preferential treatment. The nature of the charges towards Mr. Smith as compared with the charges towards Ms. Leung justify the differences in … bail and the severity of the exposure to them respectively is quite different. ...

Katrina Leung was involved in Tiger Trap. Should this surprise anyone?

I can't comment on that.

That's in the court records.

Yes. You ask, does it surprise anyone? Given the nature of her relationships to certain figures in the case, it's not surprising that she had some connection. But, you know, connection is a strange word here. She knows somebody who knows somebody that was involved in the case or something like that. That's intelligence. So what does that mean? Does that mean she's involved? Or the fact is, she just knows somebody who knew somebody else connected to the case? That's the world of intelligence. I urge people not to extrapolate or infer too much from that. ...

 

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