How Not to Combat Chinese Espionage

Steven Aftergood is director of the Project on Government Secrecy at the Federation of American Scientists

The controversy over Chinese espionage at U.S. nuclear labs has largely receded, but exactly who did what to whom, and whether or how much it matters, remains unsettled. The lack of clarity, however, has not impeded the advancement of several "reforms" to close security holes. Unfortunately, some of these solutions will create more problems than they solve.

Despite millions of dollars spent on multiple independent investigations, there is a remarkable absence of consensus concerning the significance of Chinese espionage over the last two decades. China stole "the crown jewels of our nuclear arsenal," proclaimed Rep. Christopher Cox (R-Newport Beach), chairman of a select committee that issued a three-volume report on the subject in May. The situation "confirms my worst fears," said Sen. Richard C. Shelby (R-Ala.), chairman of the Senate Intelligence Committee.

Yet, a panel convened by the Central Intelligence Agency, and chaired by retired Adm. David Jeremiah, reported that "We do not know whether any weapon-design documentation or blueprints were acquired." While espionage did occur, the panel added, "the aggressive Chinese collection effort has not resulted in any apparent modernization of their deployed strategic force or any new nuclear-weapons deployment." A report by the president's Foreign Intelligence Advisory Board concurred, noting that "The classified and unclassified evidence available to the panel, while pointing out systemic security vulnerabilities, fall short of being conclusive."

Still, the investigations have had some salutary effects. For one, they have concentrated policymakers' attention on the distinctly unglamorous field of counterintelligence, resulting in the development of a more effective organizational structure and the prompt correction of some evident security flaws. They also have given a public voice to some internal critics whose views had been muffled by bureaucrats.

But the confusion and innuendo swirling around Chinese espionage have engendered some extraordinarily ill-considered proposals that could infringe upon the constitutional rights of Americans, divert security resources into a mindless spy hunt and leave government increasingly unaccountable to its citizens.

After the New York Times reported that Los Alamos scientist Wen Ho Lee had committed security infractions involving the transfer of classified information to an unclassified computer system, a strong presumption was created in the media and elsewhere that Lee was, in fact, a spy. Never mind that he was cooperating with the FBI and that he had not been arrested or indicted on any charge.

Why, some congressional critics wondered, had the Department of Justice refused to forward an application, under the Foreign Intelligence Surveillance Act (FISA), for a wiretap on Lee or a physical search of his home and office? The Justice Department's explanation--that it had no "probable cause" to violate Lee's constitutional rights--was brushed aside in a disturbingly cavalier way.

In the past, the 1978 surveillance act had been criticized for making it too easy for government agencies to violate the privacy rights of Americans. Specifically, critics pointed to the seemingly automatic approval of applications--796 in 1998--for clandestine search and surveillance. But with the media's virtual "conviction" of Lee, the dominant criticism today is that the law makes it too difficult to spy on Americans suspected of espionage.

Accordingly, pressure is building in Congress to modify the law to make wiretaps easier to obtain. "With the passage of more than 20 years since the enactment of the [FISA], it may no longer be adequate to address the counterintelligence threats of the new millennium," the president's Foreign Intelligence Advisory Board suggested. Inflamed by the media coverage of the Lee case, some would diminish one of the last fragile checks against arbitrary government search and surveillance.

One predictable response to the espionage scandal is an expanded polygraph testing program. The Department of Energy recently announced that 5,000 scientists and others will be subjected to a polygraph as part of an upgraded security program at national laboratories.

As a matter of security policy, this is a questionable allocation of resources since none of the affected employees is likely to be a spy. (A 1993 Department of Energy contractor study estimated, somewhat fancifully, that only one of every 100,000 U.S. citizens who hold security clearances is a foreign spy.)

But an expanded polygraph program will be worse than simply useless because the new tests will inevitably generate "false positives," necessitating intensive but pointless security investigations, derailing careers and creating a work environment increasingly inhospitable to the scientific and technological innovation that supports national security.

Administered by a skillful practitioner to an ingenuous employee, polygraphs can elicit information that might not otherwise be volunteered. A polygraph program can produce a peculiar kind of camaraderie among employees who have undergone the experience. But there is a reason that polygraphs are inadmissible as evidence in courts of law: They are fundamentally unreliable.

Lately, even the Senate Intelligence Committee has acknowledged that polygraphs are problematic. "Given the potential unreliability of the polygraph system, the committee believes that alternatives to the polygraph should be explored," a new Senate report says. But given the political need to do something to respond to the perceived espionage threat, exploration of alternatives to the polygraph is exactly what will not happen at national laboratories.

In a largely unheralded bureaucratic transformation, the Clinton administration has declassified more historical documentation--more than half a billion pages--than any of its predecessors. This has not gone unnoticed by administration critics, who have invoked the Chinese espionage scandal in an effort to drastically slow the pace of declassification.

Though one thing has little to do with the other, Senate Majority Leader Trent Lott (R-Miss.) drew a comparison between espionage and declassification, suggesting that both could "provide nuclear know-how to would be proliferators in Iran, North Korea and elsewhere." The House Armed Services Committee dispensed with the commentary and simply cut the Pentagon's declassification budget for by a full 90%. While the Pentagon spends $3 billion a year on classification-related costs, less than 1% of it will now be available for declassification.

In response, the White House has said the House action would "cripple" the declassification program. "Declassification of older information has two obvious benefits. First, it reduces high safeguarding costs and, second, it enhances security by ensuring that secrecy is respected and reserved for only the most important secrets."

Even more important, declassification offers the only semblance of government accountability in many areas of national-security policy, albeit years after the fact, and it is one of the best safeguards against abuses of executive power.

Unfortunately, the Chinese espionage scandal has fostered such passion and zealotry that, for the moment, it is politically all but impossible to challenge the propriety of these kinds of "reforms." If such proposals cannot be forestalled, we may just have to learn the hard way that they will make the nation less free, less secure and less democratic.*

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