Intent Called Major Difference in Lee, Deutch Cases

One sits in jail, facing a possible life sentence if he is convicted in federal court of mishandling classified information by copying nuclear weapon secrets onto portable computer tapes and an unprotected office computer connected to the Internet.

The other sits in Boston, facing only the court of public opinion for mishandling classified information by storing intelligence secrets on unprotected home computers used to surf Internet Web sites and to send and receive e-mail.

So what’s the difference between Wen Ho Lee, the jailed nuclear scientist, and John M. Deutch, the former CIA director?

“In one instance, there is an intent to do harm to the United States,” CIA Director George J. Tenet told the Senate Armed Services Committee recently, referring to Lee. “That’s a legal judgment that’s been made. In the other instance, a similar legal judgment was not made.”

The 59-count felony indictment against Lee alleges that he acted with intent to harm the United States and to aid a foreign power. Defense lawyers insist Lee did neither. And so far, the FBI has found no evidence that Lee passed secrets to anyone during his 20-year tenure in the weapon design division at Los Alamos National Laboratory.

The Justice Department declined to prosecute Deutch, however, after reviewing the results of two internal CIA inquiries that are now themselves the focus of official review.

The spy agency’s investigators found that Deutch wrote and stored up to 1,000 pages of classified documents on three CIA-owned computers at his homes in Massachusetts and Maryland before he quit the CIA in December 1996. The files included confidential memos to President Clinton as well as reports about covert intelligence operations overseas.

“There was enormously sensitive material on this computer, at the highest levels of classification,” said Tenet, who added that Deutch clearly was “sloppy.”

If nothing else, the two cases provide further evidence of the potential dangers of high-tech banditry on the information highway.

Computer experts say sophisticated hackers can use e-mail messages or attachments to secretly plant malicious programs that can explore and transfer the contents of a recipient computer’s hard drive. Other programs enable hackers to covertly capture passwords that then can be used to access a target computer.

“The Internet has been an incredible enabler for foreign intelligence services,” said Ben Venzke, an intelligence specialist at iDefense, a computer security consulting company based in Alexandria, Va. “It’s a very real threat, and one that most government officials still don’t consider.”

After initially refusing an invitation to appear, Deutch has agreed to testify in a closed-door hearing Tuesday before the Senate Select Committee on Intelligence. The CIA separately is preparing an unclassified version of its classified report on the case for the committee.

“There’s a lot of ugliness and finger-pointing and whining about who did what to whom, who said what to whom,” said an intelligence official familiar with the report. “You can tell people were agonizing and struggling about how to investigate a former [CIA director], who was only gone a few days when this investigation began.”

The CIA has denied that it treated Deutch with kid gloves or participated in a cover-up, noting that Tenet publicly revoked Deutch’s security clearances last August. Deutch asked the Pentagon to remove his remaining military clearances earlier this month after his case erupted in the news.

No one has suggested Deutch deliberately passed secrets, and no evidence shows that foreign cyber-spies penetrated his home computers via his AOL account on the Internet. But CIA experts can’t rule out a covert theft since hackers can hide their trails in cyberspace.

Deutch, now a professor at MIT, was not popular on Capitol Hill or in the CIA during his 20-month tenure as director of central intelligence. He has few defenders today; nor, for the moment, does the CIA.

The agency’s investigators didn’t ask to interview Deutch, and only one was assigned to examine the 17,000 pages in his computer. Some officials insisted Deutch wasn’t at fault because, as CIA director, he arguably could decide what was classified and what wasn’t. And some argued that he hadn’t broken any laws because he hadn’t actually removed the files from a government building; he created them at home. The impact of the internal probe was underwhelming.

“The early investigation, which didn’t go anywhere, only recommended that someone speak harshly to Deutch,” said the intelligence official. “It said he should be reminded of his custodial responsibilities regarding classified information. So not much happened.”

After someone complained, the CIA’s inspector general, L. Britt Snider, launched a separate investigation in February 1998. Snider soon notified the Justice Department that Deutch may have violated a law regarding the unauthorized removal or retention of classified information. And the inspector general’s final report faulted Tenet and his top aides for moving too slowly.

The president’s advisory board on foreign intelligence, headed by former Sen. Warren B. Rudman (R-N.H.), is now reviewing how the CIA handled the convoluted case.

Ironically, Deutch has an unlikely supporter: Lee’s chief defense lawyer.

“We’ve never suggested that John Deutch should be criminally prosecuted,” said Mark Holscher, Lee’s attorney.

“We believe there are hundreds or thousands of people like him out there who have never been prosecuted. It’s unfortunate that Wen Ho Lee should be demonized for doing the same thing.”