Politics Colors Pursuit of Wen Ho Lee

Time will tell whether the federal government can convict Wen Ho Lee on any of the 59 counts of mishandling highly classified information relating to our nuclear weapons program, including those counts that could put him in prison for life. But what should be of concern to us is that the investigation of the former Los Alamos scientist has been suffused with politics from the outset.

Long ago, much to his misfortune, Lee was transformed into a symbol of U.S. fears that the Chinese were trying to steal some of our closely held nuclear secrets, allegations that followed closely on the heels of claims that the Chinese had sought to corrupt our elective politics. Now there is an appearance that the charges against Lee are being brought by the FBI, the Justice Department and the Clinton administration partially in order to save face and prevent political recriminations. The intrusion of these kinds of considerations into a decision like this, which should be based solely on whether there is a provable case that is worth prosecuting, poses risks to the integrity of our criminal justice system.

The FBI has blamed the Justice Department for failing to approve national security wiretaps that it claimed could have obtained the missing evidence against Lee. Because of his suspicious handling of highly classified data, intense scrutiny of Lee continued well after the FBI was forced to admit that its focus on him as the source of nuclear secrets to the Chinese was unjustified. The FBI conducted a detailed examination of Lee’s handling of classified information, employing a reported 60 agents and computer specialists. In the end, having failed to establish espionage, the FBI was left with evidence that Lee had mishandled highly classified information--and the suggestion that he had made preparations (never completed) to commit espionage.

The case proved too difficult to walk away from in part because of all the public explaining that would have been required if Lee were not charged with something. But the government’s treatment of Lee raises questions about whether its actions have been shaped solely by principles of sound law enforcement and the protection of national security.

First, the indictment includes what is apparently the first-ever criminal use of provisions of the Atomic Energy Act that prohibit removing, concealing or tampering with classified nuclear weapons data, which require proof that Lee intended to “injure the United States” and “secure an advantage to a foreign nation.” The question is how the government will prove this, given its admission that it lacks evidence that the information was transmitted to China or any other country. If the main concern is the whereabouts of missing computer tapes onto which Lee allegedly copied the classified information, indicting him may not be the best way to solve the mystery.

But because of the spotlight on this case, these reservations about the merits of indicting Lee evidently were overcome at the highest levels of the Clinton administration.

Second, there was no obvious need to arrest Lee rather than permit him to surrender voluntarily. There is no evidence that he was thinking of fleeing the country. One powerful reason for this treatment: An arrest implies that Lee is dangerous, a suggestion important in the court of public opinion, where much of this case will play itself out.

Third, the government persuaded a magistrate to hold Lee in prison without bail until his trial, which is many months away. The government argued that not only was Lee a risk to flee but also that he constitutes a threat to national security because of the mystery surrounding the missing computer tapes. But the suggestion that Lee still has the tapes and would now deliver them to a foreign power after having failed to do so during the five years since he allegedly copied most of them seems farfetched. Indeed, Lee’s lawyer asserts that the tapes have been destroyed.

But the government was not willing to take any chances. Perhaps more important, imprisoning Lee before trial signals how aggressively it intends to pursue this case. Again, the risk is that a criminal case is being used to send messages, including to critics who charge that the Clinton administration has been lax about national security and soft on China.

People who care about the integrity of our criminal justice system--and about its insulation from politics--should pay close attention as this case begins to unfold in the courts. At his 1989 criminal trial, Lt. Col. Oliver North said that during the Iran-Contra affair he felt like a “pawn in a chess game played by giants.” Coming from him, it seemed disingenuous and colored by his gift for public relations. A similar statement would seem far more appropriate coming from Lee.