[Congressional Record Volume 146, Number 108 (Thursday, September 14, 2000)]
[Senate]
[Pages S8567-S8569]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             DR. WEN HO LEE

  Mr. SPECTER. Mr. President, I have sought recognition to comment 
briefly on the extraordinary case of Dr. Wen Ho Lee who was released 
from custody yesterday by the Federal judge saying that Dr. Lee was 
owed an apology because of major mistakes made by ranking officials at 
the Department of Justice and the Department of Energy. This matter has 
been the subject of oversight inquiry by the Judiciary subcommittee, 
which I chair. Our inquiry began last October and ended in early 
December at the request of the Director of the FBI so that it would not 
interfere with the pending prosecution of Dr. Lee.
  There are many questions which arise from what has happened since--
especially the dramatic comments of Judge Parker yesterday that Wen Ho 
Lee was owed an apology, and that blame lay at the doorsteps of the top 
officials in Justice and Energy.
  The questions which need to be explored are:
  What evidence or what factors were there which led to Dr. Lee's 
detention and solitary confinement for some 9 months?
  What did the Department of Justice and the Department of Energy do by 
way of their investigation?
  What were the specifics where the key FBI witness changed his 
testimony from an earlier hearing where he said Dr. Lee was deceptive, 
to a later hearing where he omitted that very important fact which led 
to Wen Ho Lee's detention?
  Was there any racial profiling in this case?
  How did the Department of Justice focus on Dr. Lee?
  Those are among the many questions to be answered in an oversight 
hearing which our subcommittee is attempting to schedule now for the 
week of September 25.
  The inquiries which we have already made have suggested that there 
was significant reason for the FBI to conduct the investigation. Dr. 
Wen Ho Lee is entitled to the presumption of innocence like every 
American. And on this date of the report, he is presumed innocent, and 
he is, in fact, innocent. But on this date of the record, the 
Department of Justice has convicted itself of absolute incompetence. 
Let me be very specific about why.
  Director Louis Freeh sent his top deputy, John Lewis, to talk to 
Attorney General Janet Reno in August of 1997 to request a warrant for 
Dr. Lee under the Foreign Intelligence Surveillance Act. There was a 
statement of probable cause which was very substantial which justified 
the issuance of that warrant to gather further evidence. Attorney 
General Reno referred that matter to a man named Daniel Seikaly in her 
department, a person who had never handled a warrant under the Foreign 
Intelligence Surveillance Act.
  The wrong standard was applied, and the FBI was turned down 
notwithstanding the top deputy, John Lewis, having been sent there by 
Director Freeh. Then, inexplicably, for the next 16 months, the FBI did 
not conduct any investigations. Some memoranda were transmitted between 
Washington, DC, and Albuquerque, NM, but the case lay dormant.
  It is really hard to understand why the case would lie dormant when 
the FBI had been so arduous in asking for the warrant under the Foreign 
Intelligence Surveillance Act. But then, in late December of 1998, it 
was known that the Cox committee was about to publish its report and 
was said to be highly critical of the way the Department of Justice and 
the Department of Energy handled the Wen Ho Lee case.
  Then the Department of Energy initiated a polygraph of Dr. Lee on 
December 23, 1998, conducted by an outside agency--not by the FBI but 
by Wackenhut. The Wackenhut contractors told the FBI that Dr. Lee 
passed the polygraph but did not give the FBI agents the polygraph 
charts or the videotape of the interview.
  On January 17 of 1999, the FBI conducted an interview with Dr. Lee to 
close out the case. But then, on January 22, 5 days later, the FBI 
finally received the complete record of the December 23 polygraph and 
began to question the Wackenhut interpretation of the results.
  Without going into more of the details in the limited time I have at 
the moment--there will be more time to amplify this statement later in 
the subcommittee hearings--Dr. Lee was not terminated until March 8. 
The search warrant was not issued until April 9 in the context of 
substantial evidence of deletions and downloading. There are very 
significant questions for the Department of Justice to answer as to why 
the warrant was not issued under the Foreign Intelligence Surveillance 
Act, why the investigation was not made by the FBI from August of 1997 
to December of 1998, why Dr. Lee was kept on the job in the face of 
downloading very substantial classified matters.

  The issues about his retention require very serious oversight. There 
are all the appearances that the FBI's failure to handle the matter 
properly, the Department of Justice's failure to handle the matter 
properly, through the disclosure by the Cox committee in January of 
1999, and the ultimate firing, the ultimate search warrant, suggest 
that the Department of Justice really threw the book at Dr. Lee to make 
up for their own failings. But there needs to be a determination on 
oversight as to the justification for keeping Dr. Lee in solitary 
confinement. When the judge finally suggested that he was going to 
release Dr. Lee to house arrest, the Federal Government put out an 
objection to his having any contact with his wife, which was really 
extraordinary.
  Then suddenly, on a plea agreement, on one of 59 counts under the 
indictment, according to the Department of Justice, it is OK to release 
Dr. Lee on the plea bargain. There was no fine, no jail time on the 
conviction, only a debriefing. There is a real question as to how 
meaningful that is since those materials are customarily offered on a 
tender by Dr. Lee's counsel before the plea bargain is entered into.
  These are some of the issues which our Judiciary subcommittee will be 
looking into on oversight, both as to the Department of Justice and the 
Department of Energy. When a Federal judge says that America owes Dr. 
Lee an apology, the details have to be determined. When the FBI makes 
representations that Dr. Lee poses a threat to the security of the 
United States, and that the information he has downloaded could lead to 
the defeat of our military forces worldwide, those assertions need to 
be investigated as a matter of oversight. How did the Department of 
Justice move from those very serious allegations to a statement, in 
effect, that let the matter go, without a fine, without a jail 
sentence, with only probation on a single one of 59 counts.
  The handling of these espionage matters is of great import. The 
subcommittee is nearing completion of a report on Dr. Peter Lee, who 
confessed to providing information to the People's Republic of China on 
nuclear secrets and submarine detection. These are matters which 
require congressional oversight. Our Judiciary subcommittee will 
undertake just that.
  I yield the floor.
  Mr. GRAMM. Mr. President, like most people this morning, I read the 
headline ``Physicist Lee Freed With Apology.'' I want to comment on 
this.

[[Page S8568]]

I want to be careful about what I say because I am angered and 
embarrassed about what has happened to one of our fellow Americans.
  For the last few months I have been troubled by the case of Wen Ho 
Lee. I have been troubled because I have had the deep suspicion that 
Dr. Lee was a victim of scapegoatism by the Justice Department and by 
the Energy Department. But I tried to follow the old adage we all learn 
from our mamas--that when you do not have the facts, wait until you get 
the facts before you have something to say. Today we have the facts. 
The facts are that the Federal judge in this case said--talking about 
Janet Reno, the Attorney General of the United States of America, and 
Bill Richardson, the Secretary of Energy--and I quote the Federal 
judge:

       They did not embarrass me alone. They have embarrassed our 
     entire nation and each of us who is a citizen of it.

  Let me say they certainly embarrassed me. It seems to me that what 
happened was we had a terrible breach of security. Our Energy 
Department was asleep at the switch when the nuclear secrets of this 
country were stolen. That was raised to a level of public awareness. 
Rather than going out and finding the person who was guilty of stealing 
these secrets, it now appears that what the Justice Department did, to 
its great shame and our embarrassment, is engage in racial profiling to 
identify an Asian American of Chinese ancestry, Dr. Lee, and to use him 
as a scapegoat for the failure of this administration to protect 
American national security.
  This individual citizen ended up month after month in solitary 
confinement, having been charged in a 59 count indictment, and then 
when it was clear that there was no case, they plea bargained to 
release him on a minor offense. I say ``minor'' only as compared to the 
selling of nuclear secrets of the United States to the Chinese, or 
giving such information to them. Dr. Lee transferred secure data to a 
nonsecure source, a charge for which John Deutch, in a much higher 
position of government in this administration, was never prosecuted.
  In return for admitting guilt to this charge, this man, who was 
denied his freedom and who was on the verge of having his life ruined, 
is now exonerated by a Federal judge. I would like to say this:
  First of all, I don't understand an administration that stands up and 
damns racial profiling and yet engages in it when it suits their 
political agenda.
  I don't understand scapegoating when you are talking about a man's 
freedom and when you are talking about a man's life.
  I think if our Attorney General, Janet Reno, had any honor and any 
shame, and I think if Bill Richardson had any honor and any shame, they 
would resign as a result of this outrage to the American people.
  The idea that this man was in solitary confinement month after month, 
deemed a public enemy, and vilified, it seems to me, at least, based on 
everything we know--and it seems if the Justice Department had any 
facts, they would have presented them to this court and to this judge--
because of his race. I think it is an outrage. And I think an apology 
is due from the President of the United States.
  I think this is a terrible wrong and an outrage. I have for months 
been suspicious that this was happening, but I didn't want to say 
anything until we had the facts.
  I hope my language hasn't offended anybody. But I just do not 
understand people who, to get political cover for their own failings, 
don't seem to care that we are talking about the life of a real person. 
Our system is not based on my rights, or Bill Clinton's rights, it is 
based on the rights of each individual citizen.
  The idea that this man has had his good name and his family so 
attacked and has been in solitary confinement when the only thing the 
Justice Department ended up getting him to plea bargain on was that he 
took material out of a secure setting to a nonsecure setting when 
another official of this Government, by his own admission, did exactly 
the same thing and was never prosecuted--this is a terrible outrage.
  I just didn't feel comfortable not saying something about it. I just 
wanted to go on Record as saying that there is something very wrong in 
America. This is not the America I grew up in when this kind of thing 
happens. Somebody in the Senate needed to say something about it. I 
decided that was me.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. MOYNIHAN. Mr. President, could I respond in the most emphatically 
sympathetic and supportive way to the statement of the Senator from 
Texas.
  In 1993, this Congress passed legislation to create the Commission on 
Protecting and Reducing Government Secrecy in the United States. We had 
a fine commission. Senator Helms and I represented the Senate, and in 
the House, Larry Combest and Lee Hamilton, and John Deutch of the CIA. 
The commission came up with a unanimous finding.
  We began with the proposition--and I can say to a fellow academic; he 
will recognize it--Max Weber set forth that secrecy is the natural 
weapon of a bureaucracy against the parliament and against the other 
agencies of the political system. We found the most extraordinary 
things. I later wrote about this.
  In December 1946, a brilliant crypto analyst at Arlington Hall Girl's 
School, not far from the Pentagon, and broke the first of the Soviet 
KGB codes. These are one-time pads. You ``can't break them'' but they 
got a little careless, used once or twice. There were the names of all 
the physicists at Los Alamos, the principal ones. A measure of the 
extent of the KGB operation in this country? As our crypto analyst 
worked along, an Army corporal cipher clerk handing him pencils, 
coffee, whatever, an Army corporal cipher clerk, a KGB spy. In very 
short order, the KGB knew we were breaking their code.
  Then, of course, Kim Philby was at the British Embassy and we shared 
some of these findings with the British--we probably still do. Then he 
defected. In no time at all, they knew that we knew, and we knew that 
they knew that we knew.
  People might be interested to learn, who was the one person in the 
U.S. Government who did not know? The President of the United States. 
On whose orders was this the case? Omar Bradley, Chairman of the Joint 
Chiefs of Staff. This is Army property. I guess he had a sense that if 
he said, ``Give everything to the White House,'' it gets out.
  President Truman never knew any of these things.
  With the exceptions of the Rosenbergs, none of these persons were 
ever prosecuted. One of them, the most important, Hall, teaches physics 
at Cambridge University in England, and comes back and forth to this 
country. He had been part of that tremendous effort. He was from an 
immigrant family living in Manhattan, went to Queens College. They 
spotted him at Queens College, and they sent him up to Harvard. Then he 
was sent to Los Alamos. He was never prosecuted because to prosecute, 
it must be stated where we got the information and so forth.
  Secrecy can be so destructive to the flow of information that is 
needed. It will continue long after there is any conceivable need for 
secrecy. We estimated recently that the classified documents we have in 
place now would be 441 times stacked up the height of the Washington 
Monument.
  A trivial example, but a characteristic example, President Ford at 
one point had in mind that I might be Librarian of Congress. I was in 
India, leaving the post as Ambassador and had a cable exchange with the 
head of personnel in the White House. I was going back through Peking, 
staying with the Bushes, stopped at Pearl Harbor, and then would be 
here. An historian writing about the Library of Congress--an 
interesting post; there have only been seven or eight in our history--
picked this up and went to the Ford Library. Yes, there is information; 
but no, she couldn't see it, it was classified. It took months to get 
the cable to Washington declassified.
  One could argue that there was good reason to keep that classified 
for seven days, but 30 years later? That is a pattern. It is a pattern 
that the people who deal with these things as classified don't know the 
material, the subject matter; they don't know the physics taught to 
first-year graduate students

[[Page S8569]]

at MIT, but information is still classified ``top secret, no form,'' in 
some bureaucracy in Washington. The absolute standard operating 
procedure is to classify something ``Top secret'' and then send it to 
the President in the hopes that it will get on his desk if it looks 
really enormous.
  There are endless examples of clippings from Newsweek magazine 
stamped ``Confidential.'' Just a bureaucratic mode.
  The idea that Dr. Lee was imprisoned is hard to understand. Solitary 
confinement, worse. But leg irons? There were leg irons so one could 
not run off to Mexico. Obviously, much needs to be explained.
  I say also for Dr. Deutch, this is a man of utmost patriotism. What 
was his offense? I don't think it is a crime at all. He took work home 
with him. After dinner he would sit down and work. There is a penalty 
for that, and he accepted it. He has had all his clearances removed, 
which is a heavy price for a scientist, but he has accepted that. The 
idea that he has done anything wrong beyond that is to say to people: 
Don't go near the clandestine services of the United States, don't go 
near the atomic laboratories.

  I have no standing as a scientist, but I was a member of the 
President's Science Advisory Committee, and I am a fellow of the 
American Association for the Advancement of Science, and having been a 
member of the board and vice president at one point, I can say I know a 
fair number of scientists. Their postdoctorate students don't want 
anything to do with the Federal laboratories.
  If you want to do something to the national security of the United 
States, keep the best minds out of the weapons labs. That will do it 
faster than any transfer of information, which has a half-life of nine 
months before others catch up or they think it up on their own.
  I can speak to this. For example, with atomic secrets, we have a 
wonderful person, a great man, Hans Bethe, who was standing alongside 
Oppenheimer at Los Alamos. A man of luminous intelligence. There is 
nothing that he is more skeptical about than the idea of keeping 
physical science secret. He tells the story that after the atomic bomb 
was detonated, he and the other physicists involved said: All right, 
but no hydrogen bomb. No, that is too much.

  And there was the further advantage:

       And thank God, nobody knew how. It was not possible to make 
     one. It can't be done. The physics just won't work.

  And then he said: Stanislaw Ulam and Edward Teller figured out how it 
could be done.
  And we said: Oh, Lord, if Ulam can think of it, Sakharov will think 
of it. So we had better go through with it.
  He and Oppenheimer said:

       You have to go through to a hydrogen bomb because science 
     is not in a box that you can put in a closet.

  I also want to say on this floor that I have not known a more 
patriotic man than John Deutch; absolutely committed to this country's 
security. Provost at MIT, a physical chemist, a man of great science, 
who made the error of working after supper at home. Nothing was ever 
transferred to anybody. He was working. What do I do in the morning? 
That kind of thing. And the very idea we would try to punish him for 
that is to put, I say, in jeopardy the whole reputation of American 
classified science and clandestine service. We do that at a great cost, 
which you will not recognize for half a century, perhaps. But it will 
come.
  I thank the Senator from Texas for what he has said. I appreciate his 
indulgence in what I have joined him saying.
  I see my colleague seeks recognition. I yield the floor.

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