Testimony of Janet Reno, Attorney General, Department of
Justice and
Louis J. Freeh, Director, FBI
Before the Senate
Select Committee on Intelligence and the Senate Judiciary
Committee
September 26, 2000
"Investigation and Prosecution of Dr. Wen Ho Lee"
Chronology
of Significant Events Between 12/23/98 and 2/10/99
Nuclear
Weapons Restricted Data Downloaded by Dr. Lee onto Portable
Tape
Steps
Required to Down-Partition, Download, and Create Tapes
Good morning, Chairman Hatch,
Chairman Shelby, Senator Leahy, Senator Bryan and members
of the Committees. We thank you for the opportunity to appear
today to discuss the investigation and prosecution of Dr.
Wen Ho Lee.
At the outset, we want to express
our appreciation to the Committees for the manner in which
you have conducted your important oversight. This case has
raised extraordinarily sensitive national security issues,
and you have consistently worked with us to ensure that these
issues are addressed thoughtfully and responsibly. In particular,
we would like to thank Senators Hatch and Specter for delaying
scheduled hearings last year on the Wen Ho Lee case. It was
a difficult decision, but that postponement was in the national
interest.
Frankly, we have serious concerns
about testifying here today. Not because we are reluctant
to answer your questions. To the contrary, we remain convinced
that we made the right decisions, for the right reasons, at
the right time. Our concerns arise instead out of fear that
we may say something in this room, or that subsequent communications
will be made to Dr. Lee's attorneys, that will impair our
ability to find out what happened to the missing tapes, why
they were originally made by Dr. Lee , why subsequent copies
were made, and with whom, if anyone, those tapes, or the data
on them, were shared. Our goal is to provide you and the American
people as much information as possible, without impairing
our ability to get answers to these vital questions. We hope
that you agree that every other consideration pales in comparison
to our ability to achieve these objectives. We begin by emphasizing
that Dr. Wen Ho Lee has been convicted of a very serious crime.
He stood before a federal court judge, admitted his wrongdoing,
and pleaded guilty to a felony. Contrary to some reports,
there is nothing minor or insignificant about that crime.
Dr. Lee was entrusted with our nation's most sensitive nuclear
weapons design and testing secrets, and he has publicly admitted
violating that trust in a highly dangerous way.
As you know, Dr. Lee worked for the X Division at Los Alamos
National Laboratory. The X Division is responsible for the
research, design and development of thermonuclear weapons,
and requires the highest level of security of any division
at Los Alamos. Dr. Lee pleaded guilty to illegally transferring
Secret Restricted Data from the classified computer system
within X Division, and then downloading this information onto
a portable computer tape, at a location that he knew was unsecure.
"Restricted Data"
refers to information relating to the design, manufacture
or utilization of atomic weapons that has not been authorized
for release by the Department of Energy. The Restricted Data
that Dr. Lee downloaded onto ten portable computer tapes included
the electronic blueprints of the exact dimensions and geometry
of this nation's nuclear weapons.
The crime to which Dr. Lee pleaded
guilty was part of a much larger series of related crimes
that were charged in the grand jury's indictment. While some
have now questioned our decision to charge all of those related
crimes in the indictment, let us say as emphatically and as
forcefully as possible -- the Department of Justice and the
FBI stand by each and every one of the 59 counts in the indictment
of Dr. Lee. Each of those counts could be proven in December
1999, and each of them could be proven today. The facts of
this case have not changed, although as we explain below,
recent rulings by the trial court posed serious obstacles
to proving those facts without revealing nuclear secrets in
open court.
But while the facts of the case
had not changed, there was one key change that made this plea
possible: Dr. Lee's willingness finally to come forward, to
admit his criminal conduct, and to agree to cooperate. This
is the result we had sought from Dr. Lee from before the indictment
was returned.
It is critical to understand
that Dr. Lee's conduct was not inadvertent, it was not careless,
and it was not innocent. Over a period of years, Dr. Lee used
an elaborate scheme to move the equivalent of 400,000 pages
of extremely sensitive nuclear weapons files from a secure
part of the Los Alamos computer system to an unclassified,
unsecure part of the system, which could be accessed from
outside of Los Alamos - indeed, from anywhere in the world.
Dr. Lee then downloaded those files onto portable computer
tapes and still later made additional copies of some or all
of those tapes. In order to achieve his ends, Dr. Lee had
to override default mechanisms that were designed to prevent
any accidental or inadvertent movement of those files. His
downloading process consumed nearly 40 hours over 70 different
days.
Nor was this all. Dr. Lee carefully
and methodically removed classification markings from documents;
he attempted repeatedly to enter secure areas of Los Alamos
after his access had been revoked -- including one attempt
at 3:30 a.m. on Christmas Eve; and he deleted files in an
attempt to cover his tracks before he was caught.
Dr. Lee created his own secret,
portable, personal electronic library of this nation's nuclear
weapons secrets. At the very least, in doing so, he placed
these secrets at extraordinary risk. And make no mistake about
the scope of this offense, and the danger it presents to our
nation's security. As an expert from Los Alamos testified
in this case, the material downloaded and copied by Dr. Lee
represented the complete nuclear weapons design capability
of Los Alamos at that time -- approximately 50 years of nuclear
weapons development, at the expense of hundreds of billions
of dollars. Quoting from Dr. Younger's testimony:
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. They enable
the possessor to design the only objects that could result
in the military defeat of America's conventional forces.
The only threat, for example, to our carrier battle groups.
They represent the gravest possible security risk to the
United States, what the President and most other Presidents
have described as the supreme national interest of the United
States, the supreme national interest.
Before Dr. Lee created these
tapes, only two sites in the world held this complete design
portfolio: the secure computer inside the highest security
division at Los Alamos and the secure computer system inside
the highest-security division of another of our national laboratories.
Recently there has been substantial
publicity suggesting that this information may not be as sensitive
or classified as the government first represented. Prior to
the decision to seek an indictment of Dr. Lee, there was considerable
discussion among DOE, DOJ, and the FBI concerning the sensitivity,
significance and classification of the information Dr. Lee
had placed on the missing tapes. At the time, DOJ and FBI
were informed by DOE that this was significant and sensitive
nuclear weapon design and testing information that was classified
at the Secret Restricted Data level. In fact, there was a
final meeting at the National Security Council precisely on
this point, in order to ensure that in pursuing a prosecution
we would not put this sensitive information at further risk.
The sensitivity, significance, and classification of this
information has not changed. The current assessment of the
classification and sensitivity of the design and testing information
is the same as it was when the meeting with the leadership
of government occurred at the National Security Council.
Many have recently asked, "If
Dr. Lee's conduct was so bad, why did the government negotiate
a plea agreement and agree to release him?" That is an
understandable question, but it has a simple answer. The Department
of Justice and the FBI concluded that this guilty plea, coupled
with Lee's agreement to submit to questioning under oath and
to a polygraph, was our best opportunity to protect the national
security by finding out what happened to the seven missing
tapes, as well as to the additional copies of the tapes that
Dr. Lee has now admitted to having made.
This is not to say that it was
an easy call. This was an extraordinarily difficult decision
to make. However, it is important to keep in mind that this
is not an ordinary criminal matter. It never was. This is
a national security matter of paramount importance. At least
seven -- and possibly 14 or more -- tapes containing vast
amounts of our nation's nuclear secrets remain unaccounted
for. This is not rhetoric; it is a simple, frightening fact.
From the moment we learned last
year that our nation's nuclear secrets were on missing portable
tapes, we have had a central goal in this matter: to find
out what happened to the tapes. This was not just an FBI goal,
or a Department of Justice goal, or a Department of Energy
goal -- it was the goal of the entire national security leadership
of our government. But, in pursuing that goal, we were always
mindful of the need to protect constitutional rights.
Before any charges were brought
against Dr. Lee, this matter was analyzed by the highest levels
of our government. Working together, we carefully considered
the substantial risks to our national security of proceeding
with a public prosecution of Dr. Lee, counterbalanced against
the risks of foregoing such a prosecution.
The decision to prosecute Dr.
Lee was made only after repeated attempts to gain his cooperation
before indictment. The Government repeatedly told Dr. Lee
and his attorneys that, in order to avoid indictment, Dr.
Lee would have to provide a full and credible explanation
- an explanation we could verify - establishing the complete
chain of custody of the tapes from the moment he created them.
Those efforts repeatedly failed because Dr. Lee attempted
to impose unacceptable conditions upon his cooperation. Thus,
it is not true, as some have suggested, that the Government
could have had the same plea prior to indictment it has obtained
now. To the contrary, the decision to prosecute was reached
only after we had concluded that there was no realistic hope
of obtaining a reasonable and credible cooperation agreement
- one that would provide the investigative means of determining
exactly why Dr. Lee did what he did.
Once the charges against Dr.
Lee had been brought, it was still our hope that we could
reach a cooperation agreement. Serious discussions about a
possible plea agreement began during the late summer, when
Judge Parker - immediately after taking over the case - strongly
encouraged the parties to engage in mediation and enlisted
Senior Judge Leavy as a mediator. Although mediation is most
unusual in a criminal case, the government entered into the
discussions in good faith, and worked hard to reach an acceptable
solution. After difficult negotiations, the prosecutors handling
the case consulted Washington and presented possible plea
offers. Ultimately a consensus was achieved within the Department
of Justice and a plea agreement was reached. We - the Attorney
General and the Director of the FBI - are in total agreement
on this decision.
It bears repeating that the
government made this agreement for one overarching reason:
to find out what happened to the missing tapes. There were
other factors that figured in the determination of whether
a plea agreement at this time made sense, and we do not intend
to gloss over them. They included the following:
- First, as noted above, Judge
Parker had, upon taking over the case, strongly suggested
that this case was an appropriate one for mediation. In
and of itself, this was a signal that the new trial judge
viewed this case in a far different manner than his predecessor.
- Second, and even more critically,
Judge Parker then ruled in favor of the defendant in initial
proceedings under the Classified Information Procedures
Act. It appeared from this ruling that defendant would succeed
in his attempt at graymail. Although the prosecutors were
still litigating those CIPA issues, the Judge's reasoning
left little room to expect that the Government would prevail.
The court's ruling would have exposed extremely sensitive
nuclear weapons information during a public trial, crossing
an exposure threshold we had already determined posed an
unacceptable risk. We note, in this regard, that while Judge
Parker's ruling was a significant factor in our decision
whether to enter into the plea agreement, that ruling in
no way undermined our view that we were right to bring this
indictment in the first place. Indeed, proceedings under
CIPA, which can be held only after indictment and before
trial, are the only means for the Government to determine
precisely how much sensitive information it will have to
reveal publicly at trial, and whether such disclosure would
create an unacceptable risk.
- Third, Judge Parker had ruled
after the August detention hearing that Dr. Lee should be
released from his pretrial confinement. While this ruling
was stayed by the 10th Circuit Court of Appeals, which was
scheduled to hear the bail matter de novo, we faced the
very real prospect that Dr. Lee would soon be released in
any event, under conditions that we had pointed out to the
Court were inadequate to prevent Dr. Lee's communications
with others. Thus, those who question how the Government
could argue that Dr. Lee should be confined pretrial one
day, and agree to his release the next, misunderstand the
situation as it existed immediately before the plea: the
Government's arguments against release already had been
rejected by the trial court.
- Fourth, as Judge Parker's
August detention hearing also made clear, the trial threatened
to become a battle of the experts.' Indeed, notwithstanding
that defendant's experts conceded that they had not actually
reviewed the tapes - and notwithstanding the weaknesses
in their positions that were explored in the closed portion
of the hearing - the Court still gave weight to their testimony.
Furthermore, it was clear from the Court's rulings that
it would have been necessary to disclose still more classified
information at trial in order to disprove defense claims
that the material in issue - which again, they had not reviewed
- was already in the public domain.
- Fifth, the loss of the NEST
hard drives at LANL, and the ensuing investigation, posed
the possibility of further damage to the Government's case,
since it might have suggested that LANL security was lax
- even though in fact there was no comparability or connection
between the two matters.
- Finally, the FBI's lead case
agent had had to correct erroneous testimony from the initial
detention hearing. The agent acknowledged that he had misstated
what one of Dr. Lee's colleagues had told the FBI about
Dr. Lee's explanation of the purpose for which he wanted
to use that colleague's computer. The agent also volunteered
that he overstated certain evidence relating to whether
Dr. Lee had sent letters to find employment outside Los
Alamos - although there is in fact other evidence that shows
that Dr. Lee did send such letters, as the agent originally
had testified. With regard to the agent's first misstatement,
while the agent stated that he had made an honest mistake
as he tried to make the point that Dr. Lee had not disclosed
that his true purpose was to download classified nuclear
weapons data onto portable tapes, this was a serious matter.
It prompted detailed reviews of his testimony by the Agent's
supervisors and the U.S. Attorney's Office. While we do
not believe this error significantly undercut the overall
evidence against Dr. Lee, it did affect the agent's credibility
and thereby damaged the prosecution. His supervisor believed
that. The prosecutors believed that. And those of us in
Washington faced with the difficult decision whether to
enter into the plea believed it as well. Probably more damaging,
it created an unmistakable public perception that the government's
case against Dr. Lee was "crumbling." That perception
was erroneous then and we believe it remains erroneous now.
Nonetheless, it was a factor that we had no choice but to
consider.
Yet the decision to enter into
the plea agreement was still a difficult one, for despite
these setbacks, the case against Dr. Lee remained strong.
It should be pointed out that while there were many charges
in the indictment because of Dr. Lee's many acts of improper
conduct, all of the charges flowed from a common scheme: the
improper transfer and downloading of the classified Restricted
Data. Long before he was ever charged, Dr. Lee through his
attorneys, after initially denying the existence of the tapes,
admitted that he had made the improper transfers; he was simply
denying that he had the required criminal intent when he did
it. Under the circumstances, notwithstanding Judge Parker's
adverse rulings and the other problems, we remained confident
about the prospects for conviction on all counts of the indictment
- assuming, of course, that CIPA considerations did not make
it impossible to go to trial.
Even a conviction on each and
every count, however, would not have guaranteed the cooperation
of Dr. Lee. Dr. Lee's truthful and full cooperation was the
one thing the government most needed to protect the national
security of the United States.
Our paramount concern remained
the same: would this plea agreement assist us in finding out
what happened to the missing tapes? In the end, we - the Attorney
General and the Director of the FBI - agreed that accepting
the plea agreement was the correct national security decision.
As we stated earlier, the unique national security interests
of this case outweigh the criminal prosecution interests.
As you already know from press
accounts, the plea agreement was jeopardized near the end
of the negotiations. As you may recall, the plea proceeding
was rescheduled at the last moment and the parties went back
to their negotiations with the assistance of the mediator
judge. This delay has been the subject of considerable speculation
in the media. In fact, the delay rests with Dr. Lee, who made
a startling revelation just before the plea proceeding was
supposed to begin. For the very first time, Dr. Lee revealed
that he had made copies of the tapes he had illegally created.
This was an enormously significant development. What it meant
was that instead of seven missing tapes, there could be 14
or more.
As you know, the plea agreement
calls for Dr. Lee's complete and truthful cooperation. We
are hopeful that he will now be completely truthful and forthcoming.
The plea agreement - which requires Dr. Lee's sworn testimony,
and requires him to submit to a polygraph - gives him powerful
incentives to be completely truthful. If he is not, the plea
agreement provides that he may be prosecuted. It should be
noted, as well, that Dr. Lee must continue to respond to the
Government's inquiries for up to a year; and he cannot travel
outside the country during that time period without the permission
of the Mediator Judge.
Before turning to a detailed
description of the evidence and unclassified information about
this case, we want to discuss two additional matters that
have received considerable attention in the press: the conditions
of Dr. Lee's confinement and the allegations relating to selective
prosecution or racial profiling.
With respect to Dr. Lee's incarceration,
the government properly moved for pretrial detention under
the applicable federal statutes. After a three-day hearing
in which several witnesses testified at length about the extraordinary
danger presented by the missing tapes, Judge Parker appropriately
concluded that Dr. Lee should be held in jail pending his
trial. A three judge panel of the Tenth Circuit Court of Appeals
upheld that ruling.
The Department of Justice, the
Department of Energy, and the FBI also believed strongly that
Dr. Lee had to be restricted from freely communicating with
outsiders during the period of his pretrial detention, given
the uncertain location of the missing tapes. Following a request
from the United States Attorney and Secretary Richardson --
a request the FBI fully supported -- the Attorney General
authorized certain Special Administrative Measures to be imposed
upon Dr. Lee. These Special Administrative Measures were requested
for one reason and one reason only: to restrict Dr. Lee's
ability to pass information through intermediaries that could
have the devastating consequence of disseminating the nuclear
secrets he had stolen from Los Alamos. Whether the tapes were
missing for five years or missing for one day, they were still
missing and unaccounted for, an unacceptable national security
risk. This was not an idle fear by the government. As set
forth below, Dr. Lee has in this very case been shown to tamper
with or destroy evidence after being told he was under investigation.
More generally, we would like
to emphasize that we sought to be responsive to complaints
brought to our attention by Dr. Lee's attorneys concerning
the conditions of his confinement. For example, we arranged
for a Mandarin language-speaking FBI agent to be present,
so that Dr. Lee could speak to his family in that language.
Similarly, we made special food arrangements for Dr. Lee,
arranged for exercise on weekends, and built, at significant
government expense, a special secure facility in the courthouse
where he could consult with his lawyers - and where, in fact,
he spent up to six hours per day on over 90 days of his incarceration.
In numerous respects, then, Dr. Lee was treated better than
others who were also held in administrative segregation at
this facility.
And let me clear up some misconceptions:
Dr. Lee was held in solitary while in the facility, but -
as I have just noted - in fact he spent a good part of over
90 days outside the facility, with his lawyers. He was not
shackled in his cell, but only when he was transported or
was otherwise outside his cell - as were others in similar
circumstances. As to the claim that a light was kept on in
his cell, we would like to point out that this claim first
surfaced, so far as we are aware, after the plea. To the best
of our knowledge, no complaint was made to us by Dr. Lee's
lawyers about the lighting conditions in his cell. Significantly,
we informed Dr. Lee's attorneys that we would respond to any
reasonable requests regarding the conditions of his confinement
- and that is precisely what we did.
We would like to move now to
the disturbing allegations that the government engaged in
selective prosecution or racial profiling in the investigation
and prosecution of Dr. Lee. There is simply no truth to these
allegations. Dr. Lee was not investigated because he is an
American of Asian descent, he was not indicted because he
is an American of Asian descent, and he was not incarcerated
because he is an American of Asian descent.
As the Attorney General and
the Director of the FBI, we are honored to head organizations
that pride themselves on fair and impartial law enforcement.
We would never tolerate racial profiling or selective prosecution,
and we are committed to equal justice under the law. Dr. Lee
was investigated and prosecuted based on his actions, not
his race; and he has been convicted based solely on those
actions. We will turn to those facts next
FBI COUNTERINTELLIGENCE INVESTIGATIONS
OF WEN HO LEE
Dr. Lee has been known to the
FBI since 1982. At the time, he worked in Los Alamos in X
Division. His name surfaced when he contacted a suspected
agent of a foreign power who was the subject of an ongoing
FBI counterintelligence investigation. He offered to help
that person identify who had brought him to the attention
of the authorities. When Dr. Lee was first confronted by the
FBI in November, 1983, he denied having contacted the individual.
In fact, he denied even knowing the person. Only after Dr.
Lee learned that the FBI had indisputable proof that the contact
took place did he finally admit it. After providing an explanation
of the reasons for the contact, he agreed to cooperate with
the FBI regarding the individual being investigated for passing
classified information. After he provided limited cooperation,
the FBI ultimately closed that first inquiry into Dr. Lee
because nothing else developed.
A decade later, in 1994, Dr.
Lee again came under investigation because of his actions.
Dr. Lee met with a senior foreign government nuclear weapons
designer who was part of an officially approved delegation
visiting the United States. The circumstances of the encounter
clearly indicated that they knew one another, even though
Dr. Lee had never reported meeting this weapons designer on
prior trips abroad, as he was required by the conditions of
his employment to do. As in the 1982 case, Dr. Lee did not
reveal his relationship with this individual. Classified information
about the details of this encounter which further heightened
our investigative interest in Dr. Lee have previously been
provided to the Committees.
The FBI's investigation into
this 1994 matter was still ongoing when Dr. Lee emerged as
a potential subject in the 1996 Administrative Inquiry by
the Department of Energy (DOE) into the possible compromise
of information related to the W-88 nuclear warhead. Being
aware of the potential interest in Dr. Lee, and not wanting
to take any steps that would interfere with that inquiry or
expose the FBI's interest in Dr. Lee, FBI Headquarters and
FBI Albuquerque agreed to hold the investigation of the 1994
incident in abeyance. Ultimately it was closed in favor of
the larger W-88 investigation that began to be focused on
Dr. Lee.
On May 26, 1996, DOE's Administrative
Inquiry identified possible potential candidates for the leak
but concluded that "Wen Ho Lee appears to have opportunity,
means and motivation" to have compromised the W-88 information.
The FBI opened an investigation of Dr. Lee in May 1996 based
on this predicate. Clearly, the FBI should have conducted
an additional, independent investigation to verify what was
reflected in the Administrative Inquiry. The same should have
been done to eliminate other suspects and to validate the
conclusion that Dr. Lee was the most likely individual to
have compromised the W-88 information. Nevertheless, when
his name surfaced in the DOE investigation, Dr. Lee already
had a history with the FBI. He already had demonstrated his
willingness to lie to the government about his contacts with
a suspected espionage subject in 1982 and to not report the
relationship Dr. Lee had with a high-ranking foreign official
that became known in 1994. He also had twice traveled abroad
to meet nuclear scientists. Given those circumstances, the
FBI began an investigation of the person who DOE concluded
to be the most probable candidate for the W-88 leak. Additional
classified information has been provided to the Committees
about this episode.
As of December 1998, the FBI
had not been able to verify that Dr. Lee was responsible for
the possible compromise of the W-88 information. However,
in subsequent months the investigation led to the discovery
of the secret nuclear weapons information that Dr. Lee had
been accumulating over a period of years from Los Alamos,
as explained in greater detail below, in the section dealing
with the criminal investigation.
After opening the investigation
into Dr. Lee's possible involvement in the W-88 matter, the
FBI sought to develop sufficient indicia of probable cause
for a warrant under the Foreign Intelligence Surveillance
Act (FISA) to conduct surveillance of Dr. Lee. The initial
FISA application was submitted in 1997 but was not presented
to the Court. The Department of Justice and the FBI had a
good faith disagreement as to whether the application alleged
sufficient probable cause to support a FISA warrant. The FBI's
subsequent efforts to enhance probable cause, which admittedly
could and should have been more aggressive, were ultimately
unsuccessful. Additional classified information about this
portion of the investigation has been provided to the Committees.
In March 1998, Dr. Lee traveled
to Taiwan. In later investigation it was determined he consulted
with the Los Alamos computer "Help Desk" to determine
if he could access the secure Los Alamos computer system from
overseas. He was told he could not.
In December 1998, Dr. Lee again
traveled to Taiwan for three weeks. He returned on December
21, 1998. DOE, which oversees Los Alamos, conducted a polygraph
examination of Dr. Lee with the concurrence of the FBI on
December 23, 1998. To avoid alerting Dr. Lee of the FBI's
interest in him, DOE characterized the examination as a standard,
post-travel polygraph, combined with his five-year reinvestigation
for security clearance purposes.
The DOE polygraph examination,
done by a contract polygrapher, focused on whether Dr. Lee
had any unauthorized contacts or shared any classified information
with unauthorized persons. During the polygraph, Dr. Lee admitted
for the first time that he had been approached in 1988 by
PRC nuclear weapons scientists, one of whom became the head
of the PRC nuclear weapons development program, in an effort
to obtain classified information about U.S. nuclear weapons.
At the conclusion of the DOE contract polygraph on December
23, 1998, FBI agents on the scene were told that Dr. Lee had
passed the examination. This was an opinion that FBI and polygraph
experts from another agency later concluded was mistaken.
Immediately after the December
23 polygraph, based on admissions by Dr. Lee about unreported
contacts that he had had during foreign travel, Los Alamos
officials informed him that for the next 30 days his access
to the section of X Division where he worked would be denied.
He was instructed to report to unsecure space in T Division.
Dr. Lee's section within X Division was one of the most secure
portions of Los Alamos and a location where research into
nuclear weapons design takes place. Despite being informed
that his access was removed, and that he could no longer enter
X Division space without an escort, Dr. Lee improperly attempted,
without success, to enter his section within X Division five
different times on the evening of December 23, 1998. He then
tried again on Christmas Eve, December 24, 1998, at 3:30 in
the morning. In addition to those six attempted entries, Dr.
Lee made 12 other attempts to enter X Division between Christmas
Eve, 1998 and February 10, 1999. All such attempts were improper.
Records also indicate that when
Dr. Lee officially reported to T Division on January 4, 1999,
after the Christmas holiday, he sought assistance from the
Los Alamos computer "Help Desk" to revive his X
Division secure computing privileges. In making this request,
Dr. Lee did not disclose that DOE officials had removed his
access to the Division X server. Being unaware that Dr. Lee's
access to Division X's server had been blocked for security
reasons, the computer Help Desk reactivated his account. Once
he regained access to his account, Dr. Lee deleted files from
his X Division server.
In the meantime, after being
informed on December 23, 1998 that Dr. Lee had passed the
DOE polygraph, the Albuquerque Division of the FBI arranged
an interview of Dr. Lee in preparation for closing out the
pending FBI investigation of him on the W-88 matter. The FBI
conducted this interview on January 17, 1999. Throughout the
four-hour interview, Dr. Lee sought to appear cooperative
and forthcoming. He provided new and additional details about
contacts he had with foreign scientists, one of whom was related
to information causing the FBI's 1994 investigation. Dr. Lee
denied any involvement with the loss of the W-88 information.
On January 21, 1999, at the request of the FBI, Dr. Lee signed,
under oath, a statement that memorialized this interview.
At that point, Albuquerque FBI, believing that Dr. Lee had
passed the polygraph and was cooperating, advised FBI Headquarters
that it had serious doubts that Dr. Lee was the appropriate
suspect in the W-88 investigation. Consideration was given
to closing the case.
The FBI had requested and later
received from DOE copies of the charts from Dr. Lee's polygraph
examination of December 23, 1998. These were submitted to
FBI Headquarters for review by the polygraph experts who do
quality control for the FBI. The Polygraph Unit at FBI Headquarters
did not receive the copies until January 28, 1999, because
the FBI did not aggressively pursue receipt of the charts
from DOE. After completing the internal review of the polygraph
results on February 2, 1999, the FBI polygraphers who conducted
a "blind" review concluded that Dr. Lee's response
to the question whether he had ever committed espionage against
the United States was at best inconclusive. Review by experts
at another agency of government reached a similar conclusion.
The FBI shared the FBI results with DOE immediately.
As a result of this development,
Dr. Lee was asked to submit to a polygraph administered by
the FBI. On February 10, 1999, the FBI conducted a polygraph
examination of Dr. Lee, after advising him of his rights.
During this examination, the FBI asked Dr. Lee whether he
had provided "these two sensitive [nuclear weapon] codes"
to any unauthorized person and whether he had deliberately
obtained any W-88 documents. The examiner found Dr. Lee's
responses to be inconclusive. After discussion between the
examiner and Dr. Lee about exactly what was being asked, the
examiner rephrased the questions by asking Dr. Lee: "Have
you ever given any of those two codes to an unauthorized person?"
Answer: "No." "Have you ever provided W-88
information to any unauthorized person?" Answer: "No."
The polygraph examiner concluded that Dr. Lee's responses
to these two questions were deceptive. In a post-polygraph
interview, Dr. Lee admitted helping nuclear weapons scientists
from the People's Republic of China to solve a mathematical
problem that they had previously been unable to solve. Dr.
Lee conceded that the solution he had provided could easily
be used in developing nuclear weapons, but he stated that
he had not given up any classified information.
On March 5, 1999, the FBI interviewed
Dr. Lee again. During this interview, he consented to a search
of his X Division and T Division offices at Los Alamos. On
March 7, 1999, the FBI questioned Dr. Lee one last time in
an attempt to secure information about his involvement in
the compromise of the W-88 information. Unfortunately, by
that time, the investigation concerning Dr. Lee had been leaked
to the press. This effectively eliminated any possibility
of the normal, structured counterintelligence interview by
specifically trained agents fitting for this circumstance.
The interview was rushed, an inappropriate level of aggressiveness
was applied, and the interview was unsuccessful. Dr. Lee did
not admit or discuss what is now known to have happened. He
gave no indication of having made any tapes or having done
anything improper or illegal.
One approach that was taken
during that interview was not consistent with the conduct
expected of agents during an interview. Specifically, Dr.
Lee was reminded of the fate of Julius and Ethel Rosenberg,
who were executed for espionage. Confrontational interviews
often call for tough statements by investigators, but that
implication was inappropriate. Again, Dr. Lee ended the interview
without providing any useful information and without giving
any indication of the actions to which he has now pled guilty.
Meanwhile, however, the search of Dr. Lee's office at Los
Alamos was underway. That search disclosed evidence that led
eventually to his indictment.
THE CRIMINAL INVESTIGATION
OF WEN HO LEE
The search of Dr. Lee's X Division
office produced a notebook containing a one-page, computer-generated
document that listed all of the files on a directory that
Dr. Lee had created within the computer Common File System
(CFS) at Los Alamos. An X Division physicist examined this
list of files (given the name "kf1" by Dr. Lee)
and determined that the files listed in Dr. Lee's "kf1"
directory were contained in the open or unclassified part
of the CFS. The physicist then confirmed that the file descriptions
appeared to refer to highly classified information concerning
thermonuclear weapons design and testing - information that
under no circumstances should have been in an unclassified
directory.
This discovery caused Los Alamos
scientists to search the X Division portion of the Common
File System. The physicist who reviewed the list found in
Dr. Lee's notebook logged on to the system and tried to access
the files listed in Dr. Lee's "kf1" directory. He
discovered that the majority of the files had recently been
deleted. Examination of all of Dr. Lee's directories showed
that Dr. Lee had deleted more than 360 files and two complete
directories between January 20, 1999 (three days after being
interviewed by the FBI) and February 10, 1999 (the day he
was polygraphed by the FBI). The Government was able to determine
that the deleted files contained highly classified nuclear
weapons data.
As an indication of Dr. Lee's
criminal intent, and his awareness of the classified nature
of the files, the following circumstances, among others, are
relevant:
- Dr. Lee started improperly
manipulating and moving the files in question from the classified
to the unclassified system in 1993. He did not begin to
delete those files until January 20, 1999. They remained
on the unclassified system for as long as six years before
Dr. Lee began deleting them. The deletions started three
days after the FBI's January 17 interview.
- In addition, two days after
the deletions began, Dr. Lee contacted the "Help Desk"
at Los Alamos and asked for help in deleting files. Specifically,
he was concerned that despite his best deletion efforts,
the files were "not going away." The help desk
explained to Dr. Lee that this was a safeguard built into
the system in case a file was accidentally deleted. This
safeguard ensured that a backup copy of the deleted file
remained in the system for a period of days. Dr. Lee inquired
whether there was a way to delete these backup copies, and
after being instructed how to do so, he deleted the backup
files that had been automatically created by the system
as a result of his deleting the original files.
- On February 1, 1999, Dr.
Lee again contacted the Help Desk for assistance because
he was connecting to the Los Alamos computer system from
home but he kept getting disconnected.
- Finally, Dr. Lee deleted
files again on February 10, 1999, the day he failed the
FBI polygraph examination. On that day, Dr. Lee deleted
310 of the 470 files that he had improperly moved from the
classified to the unclassified system after being informed
he failed the polygraph and admitting that he had been approached
by scientists at night in his hotel room and had helped
nuclear weapons scientists from the People's Republic of
China.
After discovering the list of
files and their apparent deletion from the system, Los Alamos
officials immediately undertook the highly time-intensive
process of recovering Dr. Lee's deleted "kf1" files
from the archival portion of the Common File System. By the
end of March 1999, experts at Los Alamos had retrieved the
entire contents of the "kf1" files and confirmed
that Dr. Lee had indeed moved highly sensitive nuclear weapons
information from the classified to the unclassified side of
the Los Alamos computer system. As exhaustive computer forensic
efforts later established, effecting these transfers required
numerous deliberate steps. There was no accidental or inadvertent
method for completing the transfers.
First, as with any authorized
Los Alamos user, Dr. Lee was required to log onto the computer
system with his password and his "Z" number. For
audit purposes, the system was designed to provide an audit
trail that was traceable to the user's unique Z number. According
to Los Alamos officials, the tracking capabilities of the
computing system were not widely known.
The computing environment at
Los Alamos in 1993 and 1994 consisted of four partitions,
two of which are relevant to the charges against Dr. Lee:
the Open (green) partition and the Secure (red) partition.
The Open partition allowed only unclassified computing, and
users were not required to have any type of security clearance.
The Secure partition allowed both classified and unclassified
computing, but only by personnel with Q-clearances, which,
of course, Dr. Lee had. Q-clearance is a security clearance
required to access classified nuclear weapons data. It is
the highest security level at Los Alamos.
The Common File System (CFS)
spanned the partitions and operated as a hierarchical system.
That is, it allowed work to be performed at lower classification
levels in higher security partitions but not the reverse.
In order to lower the classification marking of a file, the
file had to be down-partitioned and saved as a new file to
CFS at the lower classification level. The computer used to
down-partition a file was called "Machine C."
Because of the expanded computing
power of the Secure partition, it was not uncommon for an
X Division scientist to up-partition unclassified material
from the Open to the Secure partition; after computing was
completed in the Secure partition, the scientist could then
legitimately down-partition the unclassified material back
to the Open partition. This was the purpose of Machine C.
As previously mentioned, Dr.
Lee was assigned a unique "Z" number that allowed
him access to the Secure partition and to Machine C, which
was used for down-partitioning. By tracing this Z number,
the precise steps Dr. Lee took could be recreated, through
forensic analysis.
After logging onto the Secure
(red) partition, Dr. Lee would identify the classified material
he desired, then save it in a secure directory by physically
typing into the keyboard "SAVE" and then typing
"CL =U," which means "classification level
equals unclassified." By making these deliberate keystrokes,
Dr. Lee was able to move material to the unclassified level,
even though the material itself was actually classified. He
would then use Machine C to down-partition the material from
the secure partition to an open partition. Dr. Lee would then
save the material to an open (green) directory. The material,
which of course remained classified, was then available in
electronic form in the open side of the computer and, therefore,
could be accessed by any machine connected to the Internet.
The material was available from any computer in the world,
to any user who had or has Dr. Lee's Z number and password
or through hacker intrusions. It was also available for copying
onto portable media such as magnetic tapes.
As charged in the indictment,
each of the 19 files he down-partitioned were "TAR"
files, meaning each was a collection of many smaller files.
The audit system tracked not only the movement of the files
but the content of the files as well. Two X Division scientists,
fully familiar with the material, confirmed that the files
transferred to the open system contained the highly sensitive
information about the most critical and powerful weapons of
the U. S. nuclear arsenal.
The search of Dr. Lee's office
also revealed three multi-page documents that did not bear
classification markings, as required by regulation, despite
the fact that those documents contained classified information.
Subsequent forensic investigation revealed that the classification
stamps or marks had been removed in several ways: (1) in one,
the classified stamp had been covered up while the document
had been copied on a copying machine; (2) in another, the
classification markings had been physically cut from the top
and bottom of each page; and (3) in the third, the classification
marking had been deleted by computer command before the document
was printed. According to Los Alamos officials, there is no
bona fide work-related employment purpose in deleting classification
designations or markings from a classified document. In fact,
such deletions would constitute a violation of Los Alamos
security regulations.
On April 10, 1999, shortly after
these discoveries were made, the FBI executed a court-ordered
search warrant at Dr. Lee's residence. During the search,
agents found a three-ring notebook that indexed 13 portable
computer tapes designated by Dr. Lee as Tapes A through M.
Dr. Lee's index for Tapes A through M includes a file name
and the size in bytes of each file. This index provided independent
corroboration that the files Dr. Lee improperly down-partitioned
onto the Open side of the computer at Los Alamos were the
very same files that he downloaded onto Tapes A through M.
The notebook in his residence also contained detailed, step-by-step,
keystroke-by-keystroke instructions for downloading the Restricted
Data files found in Dr. Lee's "kf1" directory onto
the tapes.
Dr. Lee also had a handwritten
notation in Chinese in his notebook that there was a Tape
N which was the only copy of those particular files and that
the files were not in his "kf1" directory. Tapes
A through M were created in 1993 and 1994. Tape N was created
in 1997 and contained the most up-to-date data on nuclear
testing - data that would have greatly enhanced the usefulness
of the 1993 and 1994 data. Through painstaking computer forensic
and investigative work, the FBI was able to discern the origins
of Tape N.
In 1997, when Tape N was downloaded
by Dr. Lee, the policy at Los Alamos had changed to allow
users to attach tape drives directly to a secure system. During
Dr. Lee's earlier downloading in 1993 and 1994, tape drives
were not available to individual scientists, and downloading
could take place only with the assistance of an X Division
computer specialist. By attaching a tape drive in 1997, Dr.
Lee did not need to down-partition files and place them on
the open system in order to make them available for downloading
onto tapes. Instead, in 1997, he could download directly from
the secure partition to the tape.
But, as noted above, Dr. Lee
had to take more elaborate steps to create Tapes A through
M in 1993 and 1994, since he did not then have a tape drive
on his own X Division computer. Instead, he went outside of
X Division to a computer of another Los Alamos employee in
another Division. That employee taught Dr. Lee how to log
onto the employee's computer and make tapes by downloading
files onto the tape drive. Dr. Lee also obtained that employee's
access number. Significantly, because he was outside X Division,
this employee's computer could not access the Secure (red)
partition. But, again as noted above, Dr. Lee already had
defeated that security precaution by using his X Division
computer to move the files to the Open (green) partition.
He then could download the files onto the tapes from a computer
outside X Division - precisely as he did.
CLASSIFICATION LEVEL OF THE
DOWNLOADED MATERIAL
"Restricted Data"
is statutorily defined in Title 42, United States Code, Section
2014(y) to include all data, not previously released by DOE,
concerning (1) the design, manufacture or utilization of atomic
weapons; (2) the production of special nuclear material; or
(3) the use of special nuclear material in the production
of energy. Restricted Data is classified at three levels:
Top Secret (known as TSRD), Secret (known as SRD) or Confidential
(CRD).
The evidence indicates that
Dr. Lee downloaded files relating to the design, construction
and testing of nuclear weapons, including:
- Input deck/input file information
that includes electronic blueprints of the exact dimensions
and geometry of this nation's nuclear weapons, beginning
with early atomic weapons and up to and including our most
sophisticated modern warheads;
- Data files, including: nuclear
bomb testing protocol libraries reflecting the data collected
from actual tests of nuclear weapons; data concerning nuclear
bomb test problems, yield calculations, and other nuclear
weapons design and detonation information; and information
relating to the physical and radioactive properties of materials
used to construct nuclear weapons; and
- Source codes used for determining
by simulation the validity of nuclear weapons designs and
for comparing bomb test results with predicted results;
and computer programs necessary to run the design and testing
files.
All of this information was
classified at the SRD or CRD level and we now know that Dr.
Lee downloaded this information to computer tapes. Some of
the downloaded and copied codes were the same codes in two
formats. One format is designed to run on Cray supercomputers.
The other format is designed to run on non-supercomputers.
During the search of Dr. Lee's
office in the T Division, the FBI recovered, among other tapes,
three tapes that later were determined to contain classified
information. Two of the tapes still had intact classified
data remaining on them. The third of these three tapes appeared
at first to contain only unclassified data. But subsequent
forensic review of that tape revealed that Dr. Lee had "reconfigured"
the tape in February 1999, after he learned he was the subject
of an FBI espionage investigation. In reconfiguring the tape,
Dr. Lee uploaded the tape onto a computer, deleted three classified
files while keeping the unclassified data, and then downloaded
the unclassified data back to the tape. He then returned it
to the shelf in his T Division office. Dr. Lee accomplished
the reconfiguration by approaching one of his new T Division
colleagues and telling him that he needed to use the colleague's
computer tape drive in order to conduct some unclassified
work that he had stored on tape; but, as noted above, computer
forensics shows that he actually uploaded all of the files
from the tape onto the T Division server, deleted the classified
files only, and then downloaded the remaining unclassified
files back onto the tape..
For the reasons stated above,
Dr. Lee could not have inadvertently moved classified information
to the unclassified side without knowing that the information
was, in fact, classified. When Dr. Lee realized that he was
the subject of an FBI investigation, he deleted exactly those
downloaded files that were problematic for him. And, again,
the classified files he deleted had remained on that open
computer for more than five years before he took extraordinary
measures to delete them.
As we enter the debriefing process,
we are cognizant of the pattern that has repeated itself during
the past 18 years. Beginning in 1982, Dr. Lee's initial response
to investigators' questions was a staunch denial of any wrongdoing,
followed by admissions when confronted with incontrovertible
proof. Not until after his February 1999 polygraph did he
admit to the scope of his assistance to nuclear scientists
from the People's Republic of China. Similarly, through his
counsel in this case, Dr. Lee initially denied creating any
tapes of the downloaded information. When confronted with
forensic proof, he conceded that he made tapes but maintained
that the information on them was unclassified. Now, of course,
we have evidence to prove that the information on the tapes
was classified. Finally, of course, Dr. Lee has now at last
admitted that he made copies of at least some of the tapes
he created.
THE INDICTMENT
Based on the evidence described
above, the government was prepared to prove each of the 59
charges in the indictment of Dr. Lee. The government was prepared
to establish beyond a reasonable doubt that:
- Dr. Lee tampered and altered
Restricted Data each and every time he removed the security
classifications from the files listed in the indictment,
a step he took in order to move those files to an Open system;
- When he moved those files
to an Open system, he was appropriating the data for his
own use;
- Dr. Lee maintained possession
and dominion over the files, at least until January and
February 1999, when he deleted them from the system.
- In so doing, Dr. Lee acquired
the data with intent to injure the United States.
The FBI uncovered no direct
evidence that Dr. Lee passed classified information to a foreign
government. The circumstantial evidence, however, that Dr.
Lee collected the files with the intent to injure the United
States or to advantage a foreign nation, includes:
- X Division physicists were
prepared to testify that the Secret Restricted Data contained
in the files and downloaded tapes represent the most sensitive
information collectively possessed within the X Division
at Los Alamos. Dr. Lee knowingly and willfully placed America's
most sophisticated information regarding the design and
construction of nuclear weapons on an open computer system
and then copied this information onto portable tapes that
are still missing and alleged to have been destroyed.
- It was not a simple task
for Dr. Lee to move files from the closed to the open system.
The CFS tracking system reveals that Dr. Lee spent hours
unsuccessfully trying to move classified files into unclassified
space. Dr. Lee eventually worked his way around what was
designed to be a cumbersome process. Dr. Lee had to command
the computer to "declassify" the files when he
was well aware that the files contained some of the most
sensitive classified information at Los Alamos.
- Dr. Lee spent many hours
assembling the files that he wanted to download. Those files
contain entire sets of certain classified information that
scientists at Los Alamos would testify are rarely used in
their entirety because of their size. Dr. Lee's colleagues
were prepared to testify that there was no legitimate work-related
reason to assemble the files in the manner Dr. Lee did,
much less move it to an open directory. In addition, Dr.
Lee was not directly working on a significant amount of
the data he collected. His colleagues would have testified
that Dr. Lee had little involvement and no direct work-related
reason to use the information he assembled.
- X Division scientists most
familiar with the downloaded information would have testified
that Dr. Lee took every significant piece of information
to which a nuclear weapon designer would want access.
- Dr. Lee downloaded this data
onto portable tapes, and then also made copies of at least
some of those tapes. According to X Division scientists,
the information was designed to run on secure Los Alamos
computers. There is no legitimate work-related reason for
creating tapes of this information. The creation of the
tapes further evidences an intent on the part of Dr. Lee
to remove the information from the sole control of the United
States Government.
- Dr. Lee worked secretly to
create the original nine tapes containing classified data
in the 1993-94 time period. He made those tapes using a
colleague's unsecure computer, as well as the colleague's
password, without any legitimate, work-related purpose.
- Dr. Lee's deletion of X Division
Secret Restricted Data files (including the backup copies)
that he had moved from the closed to the open system at
a time when the FBI alerted him to their investigation and
his failed polygraph, compellingly demonstrates his consciousness
of guilt.
- The evidence also indicated
that Dr. Lee had sought employment overseas during this
same time period.
CONCLUSION
The key pieces of evidence in
this case - including the file list found in Dr. Lee's office,
the classified files themselves that Dr. Lee had deleted from
his computer and the detailed outline found in his notebook
at his residence - once analyzed, explained and understood
in context, establish that Dr. Lee willfully jeopardized the
nation's most valuable nuclear secrets. He did so first by
removing them from the secure, classified side of the Los
Alamos computer system, thereby positioning the files to be
electronically transmitted anywhere in the world. And he did
so again by physically downloading the files onto tapes, in
an unsecure location. Finally, of course, he has now admitted
to copying at least some of those tapes.
What he did with those tapes
has been, from the moment of discovery, of paramount concern
to the government and explains the government's decision to
enter into plea negotiations with Dr. Lee. Although we remain
convinced that a successful prosecution of Dr. Lee on all
59 counts could have been brought, barring CIPA obstacles,
we are equally convinced that a plea agreement provides the
best available opportunity to gain the information needed
to assess the full extent of the damage done to the national
security by Dr. Lee.
This point is driven home by
the fact that despite the government's interview of over 1,000
witnesses and review of 20,000 pages of documents in English
and Chinese, and the forensic examination of more than one
thousand gigabytes containing more than one million computer
files, we only recently discovered a very critical piece of
information from the defendant himself: the fact that, in
addition to the downloaded tapes described in the indictment,
Dr. Lee, through his counsel, advised the government that
he made copies of at least some of the tapes in question.
We learned this fact only as a result of the plea negotiation.
Otherwise, we in all likelihood would never have known.
In sum, this has not been an
easy case for the Government, for the Court, or for this Country.
We welcome and value your oversight, even when it identifies
our own shortcomings, because it can bring with it constructive
criticism and new solutions. But in exercising this legitimate
and valuable oversight function, these Committees should not
lose sight of the fundamental point here: the responsibility
for this situation rests exclusively with Wen Ho Lee, whose
deliberate, unjustifiable, criminal actions put this Country,
and the world, at great risk.
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