[Congressional Record Volume 146, Number 25 (Wednesday, March 8, 2000)]
[Senate]
[Pages S1288-S1290]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            REPORT ON INVESTIGATION OF ESPIONAGE ALLEGATIONS

  Mr. SPECTER. Mr. President, I have sought recognition to speak about 
the ``Report on the Investigation of Espionage Allegations against Dr. 
Wen Ho Lee.'' I have circulated this 65-page report with a Dear 
Colleague letter today, but I think it important to speak about it on 
the Senate floor.
  The Dear Colleague letter urges Senators to support S. 2089 which is 
designed to reform the Foreign Intelligence Surveillance Act to avoid 
the mistakes which were made in the investigation of Dr. Wen Ho Lee.
  In the Wen Ho Lee matter, the FBI went to the Attorney General 
personally to ask for approval for a FISA warrant and was turned down. 
The Attorney General in August of 1997 assigned the matter to a 
subordinate who had no experience on FISA matters. The Attorney General 
did not check on the matter, and the FBI request was, therefore, 
rejected. The FBI then let the matter languish for some 16 months 
before taking any investigative action.
  At that stage, the Department of Energy meddled in the matter by 
giving a lie detector test to Dr. Lee, representing he had passed it 
when, in fact, he failed it, throwing the FBI investigation off course. 
The FBI then gave another polygraph on February 10

[[Page S1289]]

which Dr. Lee failed, but there was no action taken to remove him from 
the office until March 8, so that he stood with access to this very 
important information for some 19 months.
  This information was so important that, according to the testimony of 
Dr. Stephen Younger at the bail hearing, it could change the global 
strategic balance.

  The legislation seeks to correct these failures by requiring the 
Attorney General personally to review the matter when requested in 
writing by the Director of the FBI, and then, if the FISA application 
is declined, to state in writing the reasons, which will give a roadmap 
to the FBI as to what to do, and then for the Director of the FBI to 
personally supervise the investigation and to centralize the authority 
of the FBI to keep the meddling of the Department of Energy 
illustratively out of it.
  This report is disagreed with in some manner by the Department of 
Justice, and there is some disagreement by other Federal agencies and 
some Senators. But it sets out a narrative, and anybody who has a 
disagreement will have an opportunity to testify before the oversight 
subcommittee.
  This legislation has been cosponsored by Senator Torricelli, Senator 
Grassley, Senator Biden, Senator Thurmond, Senator Feingold, Senator 
Sessions, Senator Schumer, Senator Helms, and Senator Leahy. There is 
widespread support for the legislation even though there is some 
disagreement as to whether the probable cause was adequate for the FISA 
warrant or some of the other specific statements of fact.
  This report has been prepared with the exhaustive work of Mr. Dobie 
McArthur. It summarizes in detail what happened on the errors of the 
Wen Ho Lee investigation. I am circulating it, as I say, with a Dear 
Colleague letter to Senators.
  I think it is an important matter. It has been cleared by the 
Department of Justice and other agencies so that it does not contain 
any classified information. It can be found at my Senate website: 
www.Senate.gov/Specter.
  I ask unanimous consent that the Dear Colleague letter and the 
executive summary be printed in the Congressional Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                    Washington, DC, March 8, 2000.
       Dear Colleague: I urge you to support S. 2089 which would 
     reform the Foreign Intelligence Surveillance Act (FISA) to 
     prevent future lapses like the ones which plagued the 
     investigation of Dr. Wen Ho Lee. Had these reforms been in 
     effect, a FISA warrant would doubtless have been issued and 
     major risks to U.S. national security could have been 
     avoided.
       The seriousness of Dr. Lee's downloading classified codes 
     onto an unclassified computer was summarized at his bail 
     hearing on December 13, 1999 when Dr. Stephen Younger, 
     Assistant Laboratory Director for Nuclear Weapons at Los 
     Alamos, testified:
       ``These codes and their associated data bases and the input 
     file, combined with someone that knew how to use them, could, 
     in my opinion, in the wrong hands, change the global 
     strategic balance.'' (Emphasis added)
       While the overall investigation of Dr. Lee from 1982 
     through 1999 contained substantial errors and omissions by 
     the Department of Energy and the Department of Justice, 
     including the FBI, the failure of DoJ to authorize the FISA 
     warrant in August 1997 and the failure of the FBI to pursue 
     prompt follow-up investigation gave Dr. Lee a critical 
     opportunity to download highly classified information.
       The Attorney General was personally requested by ranking 
     FBI officials to approve the FISA warrant. She did not check 
     on the matter after assigning it to a DoJ subordinate who 
     applied the wrong standard and admitted it was the first time 
     he had worked on a FISA request. After DoJ declined to 
     approve the FISA warrant request, the FBI investigation 
     languished for 16 months (August 1997 to December 1998) with 
     the Department of Energy permitting Dr. Lee to continue on 
     the job with access to extremely sensitive information from 
     August 1997 until March 1999.
       Senator Torricelli summed up the situation in his February 
     24th floor statement supporting S. 2089:
       ``There was a startling, almost unbelievable failure of 
     coordination and communication between the Department of 
     Justice, the FBI, and the Department of Energy in dealing 
     with this matter, and only through that lack of coordination 
     with this matter, and only through that lack of coordination 
     was an allegation of possible espionage able to lead to 17 
     years of continued access and the possibility that this 
     information was compromised.'' (Congressional Record S801)
       This bill would require the Attorney General to personally 
     decide whether a FISA warrant should be approved by DoJ when 
     personally requested in writing by the FBI Director, the 
     Secretary of State, the Secretary of Defense or the Director 
     of Central Intelligence. If the Attorney General declines, 
     the reasons must be set forth in writing.
       This bill would further require the FBI Director to 
     personally supervise the follow-up investigation to secure 
     additional evidence/information to obtain the FISA warrant. 
     The bill further provides that the individual need not be 
     ``presently engaged'' in the particular activity since 
     espionage frequently spans years or decades and improves the 
     coordination of counter intelligence activities among Federal 
     agencies.
       I am enclosing for your review: (1) a copy of S. 2089; (2) 
     a sixty-five page Report on the Investigation of Espionage 
     Allegations against Dr. Wen Ho Lee, including a five-page 
     Executive Summary. Circulation of this Report has been 
     delayed until the Department of Justice including the FBI, 
     the CIA and the Department of Energy agreed that the Report 
     does not contain classified information.
       While the Department of Justice and some Senators disagree 
     with some of the conclusions in this Report, there has been 
     general agreement that legislation is warranted. To date S. 
     2089 has been co-sponsored by Senators Torricelli, Grassley, 
     Biden, Thurmond, Feingold, Sessions, Schumer, Helms and 
     Leahy.
       If you are interested in co-sponsoring, please contact me 
     at 224-9011 or have your staff contact Dobie McArthur at 224-
     4259.
           Sincerely,
     Arlen Specter.
                                  ____


Report on the Investigation of Espionage Allegations Against Dr. Wen Ho 
                           Lee, March 8, 2000


                                Summary

       While the full impact of the errors and omissions by the 
     Department of Energy and the Department of Justice, including 
     the FBI, on the investigation of Dr. Wen Ho Lee requires 
     reading the full report, this summary covers some of the 
     highlights.
       The importance of Dr. Lee's case was articulated at his 
     bail hearing on December 13, 1999 when Dr. Stephen Younger, 
     Assistant Laboratory Director for Nuclear Weapons at Los 
     Alamos, testified:
       ``These codes and their associated data bases and the input 
     file, combined with someone that knew how to use them, could, 
     in my opinion, in the wrong hands, change the global 
     strategic balance.'' (Emphasis added)
       As Dr. Younger further noted about the codes Dr. Lee 
     mishandled:
       ``They enable the possessor to design the only objects that 
     could result in the military defeat of America's conventional 
     forces . . . They represent the gravest possible security 
     risk to . . . the supreme national interest.'' (Emphasis 
     added)
       It would be hard, realistically impossible, to pose more 
     severe risks to U.S. national security.
       Although the FBI knew Dr. Lee had access to highly 
     classified information, had repeated contacts with the PRC 
     scientists and lied about his activities, the FBI 
     investigation was inept. In December 1982, Dr. Lee called a 
     former employee of Lawrence Livermore National Laboratory who 
     was suspected of passing classified information to the PRC. 
     Notwithstanding the facts that Dr. Lee denied (lied) about 
     calling that person, admitted to sending documents to Taiwan 
     marked ``no foreign dissemination'' and made other 
     misrepresentations to the FBI in 1983 and 1984, the FBI 
     closed its investigation in March 1984.
       A new investigation was initiated in 1994 by the FBI after 
     Dr. Lee failed in his obligation to report a meeting with a 
     high ranking PRC nuclear scientist who said that Dr. Lee had 
     been helpful to China's nuclear program. This contact 
     occurred at a time when the PRC had computerized codes to 
     which Dr. Lee had unique access. Notwithstanding good cause 
     to actively pursue this investigation, the FBI deferred its 
     inquiry from November 2, 1995 to May 30, 1996 because of a 
     Department of Energy Administrative Inquiry, which was 
     developed by a DoE counterintelligence expert in concert with 
     a seasoned FBI agent who had been assigned to the DOE for the 
     purposes of the inquiry.
       In the 1993-1994 time frame, DoE was incredibly lax in 
     failing to pursue obvious evidence that Dr. Lee was 
     downloading large quantities of classified information to an 
     unclassified system. According to Dr. Stephen Younger, it was 
     access to that information which would eventually enable 
     the ``possessor'' to ``defeat America's conventional 
     forces''. DoE's ineptitude had disastrous consequences 
     when the FBI asked DoE's counter-intelligence team leader 
     for access to Dr. Lee's computer and the team leader did 
     not know Dr. Lee had signed a consent-to-monitor waiver.
       The most serious mistake in this sequence of events 
     occurred when DoJ did not forward the FBI request for a 
     Foreign Intelligence Surveillance Act (FISA) warrant to the 
     FISA court where:
       (1) The FBI presented ample, if not overwhelming, 
     information to justify the warrant;
       (2) The Attorney General assigned the matter to a DoJ 
     subordinate who applied the

[[Page S1290]]

     wrong standard and admitted it was the first time he had 
     worked on a FISA request;
       (3) Notwithstanding Assistant FBI Director John Lewis's 
     request to the Attorney General for the FISA warrant, the 
     Attorney General did not check on the matter after assigning 
     it to her inexperienced subordinate.
       After DoJ's decision not to forward the FBI's request for a 
     FISA warrant, which could have been reversed with the 
     submission of further evidence, the FBI investigation 
     languished for 16 months with DoE permitting Dr. Lee to 
     continue on the job with access to classified information.
       On the eve of the release of the Cox Committee Report that 
     was expected to be highly critical of DoE, DoE arranged with 
     Wackenhut, a security firm with which the DoE had a contract, 
     to polygraph Dr. Lee on December 23, 1998 upon his return 
     from Taiwan. According to FBI protocol, Dr. Lee would have 
     been questioned as part of the post-travel interview. 
     However, the case agents were inexplicably unprepared to 
     conduct such an interview. Ultimately, the polygraph decision 
     was coordinated between DoE and the FBI's National Security 
     Division. The selection of Wackenhut to conduct this 
     polygraph was questioned by the President's Foreign 
     Intelligence Advisory Board and criticized as 
     ``irresponsible'' by the FBI agent working Dr. Lee's case.
       The FBI's investigation was thrown off course when they 
     were told Dr. Lee had passed the December 23, 1998 polygraph 
     which the Secretary of DoE announced on national TV in March 
     1999.
       A review of the Wackenhut polygraph records by late January 
     contradicted the Department of Energy's claims that Dr. Lee 
     had passed the December 1998 polygraph; and a February 10, 
     1999 FBI polygraph of Dr. Lee confirmed his failure. In the 
     interim from mid-January, Dr. Lee began a sequence of massive 
     file deletions which continued on February 10, 11, 12 and 17 
     after he failed the February 10, 1999 polygraph.
       It was not until three weeks after the February 10, 1999 
     polygraph that the FBI asked for and received permission to 
     search Dr. Lee's computer which led to his firing on March 8, 
     1999. A search warrant for his home was not obtained until 
     April 9, 1999. Those delays are inexplicable in a matter of 
     this importance.
       The investigation of Dr. Lee demonstrates the need for 
     remedial legislation to:
       1. Require that upon the personal request of the Director 
     of the FBI, the Secretary of State, the Secretary of Defense 
     or the Director of Central Intelligence, the Attorney General 
     will personally review a FISA application submitted by the 
     requesting official.
       2. Where the Attorney General declines a FISA application, 
     the declination must be communicated in writing to the 
     requesting official, with specific recommendations regarding 
     additional investigative steps that should be taken to 
     establish the requisite probable cause.
       3. The official making a request for Attorney General 
     review must personally supervise the implementation of the 
     Attorney General's recommendations.
       4. Explicitly eliminate any requirement that the suspect be 
     ``presently engaged'' in the suspect activity.
       5. Require disclosure of any relevant relationship between 
     a suspect and a federal law enforcement or intelligence 
     agency.
       6. Require that when the FBI desires, for investigative 
     reasons, to leave in place a suspect who has access to 
     classified information, that decision must be communicated in 
     writing to the head of the affected agency, along with a plan 
     to minimize the potential harm to the national security. 
     National security concerns will take precedence over 
     investigative concerns.
       7. The affected agency head must likewise respond in 
     writing, and any disagreements over the proper course of 
     action will be referred to the National Counterintelligence 
     Policy Board.

  Mr. SPECTER. Mr. President, how much time do I have that I am 
yielding back?
  The PRESIDING OFFICER. The Senator has 3 minutes of his 7 minutes.
  Mr. SPECTER. I only asked for 4, but I yield back the remainder of my 
time. I thank my distinguished colleague, Senator Hutchinson from 
Arkansas.
  The PRESIDING OFFICER. The Senator from Arkansas is recognized.

                          ____________________