Go back to the SPSE Home Page http://www.spse.org/
One Lab Employee's Analysis of the Wen Ho
Lee Imprisonment
by William O'Connell
SPSE Executive Board Member
June 22,2000
Dr. Wen Ho Lee is being punished severely by solitary confinement,
before being convicted of anything. That much is clear. A description
is found in the APS News of April 2000, http://www.aps.org/apsnews/0400/040016.html.
He is allowed a one-hour meeting per week with his family, and
some meetings with his lawyers. During his one hour per day allowed
outside his cell, he is kept isolated from other prisoners, and
he cannot phone out except to his law firm.
His conditions of imprisonment have drawn written protests from the American Physical Society, the American Association for the Advancement of Science, other scientific associations, and from many labor unions, who felt the injustice was within their scope as an employee rights and human rights issue. There have been only sparse protests from employees of the two main nuclear-weapon research labs. I am searching for reasons for this hesitation or decided opposite opinion. One large factor is that the issues in Dr. Lee's arrest involve nuclear-weapons secret information. We employees at the national labs know intimately and daily the importance to the world's safety of confining such information, and this looms as a serious counterbalancing consideration to the individual human distress of Dr. Lee and his family.
Thus we as national laboratory employees, more so than other
American observers, have to draw a careful balance based on the
facts and charges of the specific case, the well-known hazards
to world safety if nuclear secrets were to get loose and into
the wrong hands, and the suppression of an individual American
citizen's civil rights.
The charges against Dr. Lee are spelled out in the Government's
indictment, which is available on the World Wide Web, for instance
from the Federation of American Scientists,
http://www.fas.org/irp/ops/ci/docs/lee_indict.html.
The charges of concrete actions involve the copying of classified computer files to the unclassified partition of the Los Alamos Common File System (CFS) and to small backup tapes. The indictment states that during a period in 1993 and 1994, Dr. Lee copied nineteen TAR files (packaged archive file format) to the unclassified partition of the CFS. In some instances the files were first copied to the unclassified partition, a TAR file was made, and then the individual files were deleted. Then on a date in 1994, Dr. Lee copied 17 of the 19 TAR files to a series of nine 150-megabyte tape cartridges. The indictment states that on a certain date in 1997, Dr. Lee copied several TAR files, and several individual files which were input files, to one other tape cartridge of the same type. The indictment further states that between January 20, 1999 and February 10, 1999 Dr. Lee deleted over 360 files that he had maintained on the open partition of the Los Alamos CFS, including the 19 above-described TAR files from the 1993-1994 period.
Copying by a user of unclassified files from the classified partition of the CFS to the unclassified partition of the CFS was allowed at the time, provided the user made sure the files contained only unclassified information. The problem is that many of the files in question were classified or originated from a classified setting and were likely to be classified.
The indictment states that seven of the ten tapes remain unaccounted for. Dr. Lee is not charged with removing any tapes from the Los Alamos site, or with providing access to the files to any other person.
The indictment also charges Dr. Lee with intent during these actions, "with the intent to injure the United States, and with the intent to secure advantage to a foreign nation."
The indictment charges that these actions and intent are in
violation of several different requirements of the Federal law.
Thus there are 59 counts in all.
These files were not on Dr. Lee's computer, although they were in principle accessible through his computer if one knows the computer password and the file passwords. The files were on a centrally provided and controlled file system. Every user of such a computer system knows that the files are reliable, that is, never to be lost, since there are regular backups, or write-one-time media, or both. An exception to reliability may occur during changeover of computer hardware systems or file storage systems. Dr. Lee left the file access pointers in his directories for over five years. He did not delete the file pointers until January 20, 1999-February 10, 1999, shortly after he had been transferred out of X Division to an unrelated assignment. This does not appear at all to be the way a spy would operate. The alternate method would be to copy the files to tape, and erase any disk files immediately before a regularly-scheduled backup is made; also remove the tapes, rather than keep them in one's office for five years.
The description of the file contents in the indictment is semi-specific. From the descriptions and from the testimony of government witnesses during Dr. Lee's bail hearings, the contents appear to be quite serious and important. Only a closer examination will decide for certain.
The copying of the files was wrong, in violation of security procedures, and careless to the stored information and to the person doing this. But it does not look to me like an indication of spying, either past or planned.
The Government alleges "intent to secure advantage to
a foreign nation" but there is no evidence indicated. Dr.
Lee's defense team has demanded of the Government to state which
foreign country they have in mind, but the government team has
refused to commit themselves.
In the early cycle of the FBI investigation, on the topic of Chinese acquisition of secret information on the W-88 weapon, the investigation very early focused in on Dr. Wen Ho Lee, because he was at Los Alamos, was of ethnic Chinese background, and had traveled to China at LANL request. Los Alamos staff of Caucasian background who had traveled to China were not looked into very closely. That is the first cycle of ethnic profiling. Eventually the higher Federal authorities had to convince the FBI that they were getting no solution of the case, and should start over with a wider scope.
The FBI, by concentrating on Dr. Lee, did find that he had
copied all these files. That had no connection to the W-88 investigation
or to the government of China, but it was something. The next
question was whether to indict Dr. Lee for some crime related
to this copying. As we know from the newspapers, that was a difficult
call. Nobody had ever been prosecuted on the same charges. Also
the substance was a lot paler than spying. The issue was debated
up to the highest levels of the Justice Department and Department
of Energy, and was even carried higher to within the White House.
With these high officials and the contentious nature of the legal
provisions, there must well have been a political component to
the final decision to bring charges. Two obvious external political
pressures are (1) the Republicans in Congress were continuing
to lambaste the Democratic Administration for laxity in investigating
the alleged Chinese spying, and (2) the FBI had been investigating
the case for many months, and all they had come up with was this
actually unrelated non-spying case. The only real relation was
the political one, since the word "Chinese" could be
used in both cases, and the White House was coming up empty in
the one case. Thus it is apparent that "ethnic profiling"
is a valid characteristic of the unprecedented decision to bring
charges for the first time on these provisions of the law.
The government's case for refusing bail for Dr. Lee, and for his solitary confinement, rests on the stated possibility that Dr. Lee is actually a spy, and an accomplice is waiting to receive a coded message from Dr. Lee concerning the unaccounted-for tapes, or waiting to fly him out of the country. Again see the APS news article, http://www.aps.org/apsnews/0400/040016.html for more details. This represents a rampant unbounded imagination on the part of the Government. FBI agents are supposed to have a suspicious nature, but this should be controlled at a higher level of government. The facts of the case do not support this in any concrete way. In fact, facts such as Dr. Lee's leaving the files on the centralized storage system and in his office for five years indicate a non-spying, non-secretive mode of actions.
The suspicion of spying, and the suspicion of having an accomplice waiting out there, is a hangover from the earlier investigation concerning the W-88 and suspected Chinese government success in secret data acquisition. Many hundreds of hours of FBI investigation of this case have found no connection of Dr. Lee to this case and indeed no connection of Los Alamos to this case. That should put it back to square one -- no evidence, no heavy-handed pressure on one individual. For the Government to carry over their frustrated suspicion to the other, much smaller, case is an instance of illogic, discrimination, political considerations, and of trampling the civil rights of Dr. Lee.
Bill O'Connell
oconn1@hotcoco.infi.net
or in care of spse@spse.org
Go back to the SPSE Home Page
http://www.spse.org/