Tuesday, September 19, 2000
(This is an unedited, uncorrected transcript.)
Prepared by Burrelle’s Information Services, which takes sole responsibility
for accuracy of transcription.
DR WEN HO LEE The next few day I’m going to fishing.
JOHN DONVAN, ABCNEWS He spent nine months in solitary confinement, then the
case against Wen Ho Lee collapsed in a cloud of questions.
PRESIDENT BILL CLINTON The whole thing was quite troubling to me.
WEN HO LEE I’m innocent. Is that OK?
1ST REPORTER Actually, just a couple quick questions.
WEN HO LEE No.
1ST REPORTER Sir.
JOHN DONVAN Was this ethnic scapegoating?
ROBERT KIM, AMERICAN CIVIL LIBERTIES UNION There was strong evidence that the
government was singling out Dr. Wen Ho Lee because of his race.
JOHN DONVAN Or was a spy set free?
NORMAN BAY, UNITED STATES ATTORNEY-NEW MEXICO What he did was to compile a
personal library of highly sensitive nuclear secrets. This information
represented a complete design portfolio for nuclear weapons.
JOHN DONVAN Tonight, the strange case of the United States versus Wen Ho Lee.
ANNOUNCER From ABCNEWS, this is Nightline. Substituting for Ted Koppel and
reporting from Washington, John Donvan.
JOHN DONVAN A few days ago a spy case that has been described as posing one
of the most serious threats ever to the safety of the citizens of this
country just sort of fizzled out in confusion. Until last week, the
government was telling us that a scientist named Wen Ho Lee, who was accused
of stealing nuclear secrets, was so dangerous that there was no way he should
be allowed out on bail, even a million dollars bail. After all, he faced 59
separate felony charges and possibly life in prison.
And then prosecutors in Albuquerque, New Mexico, where his case was being
heard, agreed that it was now safe to let Lee go after he pleaded guilty to a
single felony charge with a sentence equal to the 278 days he had already
spent in jail. When he was released, the judge apologized for the conditions
of his imprisonment and the president of the United States suggested that he
was uneasy with the way that Lee had been treated. And yet the prosecutors
who went after Lee are sticking by their guns. They say their case against
Lee was solid. He was not the wrong guy. Later in the broadcast, I’ll be
asking the lead prosecutor why not.
But where does this leave national security, and where does this leave one
man’s civil rights? Nobody involved in this case has cleared up yet what
seems to be the most obvious question of all. Was Lee wrongly accused? And if
he wasn’t, does that mean that a spy was just set free? Nightline’s Dave
Marash has been retracing the sequence of events in the confusing case of Wen
Ho Lee.
2ND REPORTER Mr. Lee, do you have any comment? Have you been indicted?
DAVE MARASH, ABCNEWS (VO) Wen Ho Lee, suspect. How is that connection first
made? The US attorney in charge of his prosecution says, suspicions were
first aroused back in 1982.
NORMAN BAY He was picked up on a wire tap, an FBI wire tap. He was calling a
scientist at another national lab, a scientist who is being fired for passing
classified information to a foreign country. Dr. Lee asked this scientist if
the scientist wanted his help, if he wanted help in finding out who had,
quote, “squealed on him.”
1ST REPORTER Mr. Lee, just a couple quick questions.
WEN HO LEE I can’t—no, I...
1ST REPORTER Sir.
DAVE MARASH (VO) This does sound suspicious. Wen Ho Lee offering to help a
national security secret leaker, even offering to uncover who had found him
out. But is it? Lee’s lawyer, Mark Holscher.
MARK HOLSCHER I think the key thing to remember here, Dave, is that Dr. Lee
was asked by the FBI to assist them in this tiger trap investigation. He
actually assisted them, cooperated, and much to the satisfaction of the FBI,
went and spoke to this person at their direction.
DAVE MARASH The bottom line, Wen Ho Lee, after this incident, was cleared for
top secret data and the long career helping to design nuclear weapons. So if
the 1982 incident did not alarm the counterintelligence people who
investigated it then, why do prosecutors today claim to find it so
suspicious? Was it because of what Wen Ho Lee did or because of who he is, a
foreign-born Asian American? In the Asian American community, there seems to
be little doubt.
ROBERT KIM There were strong and explicit statements by high-ranking FBI
officials, Department of Energy counterintelligence officials and
counterintelligence officials at Los Alamos stating that—that racial
profiling does take place within the laboratories when the government is
trying to find suspects. And also, in particular, that Dr. Lee had been
singled out because of his race.
DAVE MARASH (VO) Robert Vrooman used to be in charge of counterintelligence
at Los Alamos.
ROBERT VROOMAN They stopped looking at other people, in my opinion, because
he was ethnic Chinese. They figured the Chinese would only recruit an ethnic
Chinese. Now those of us who had worked in counterintelligence for years knew
that that wasn’t true.
DAVE MARASH (VO) Vrooman says the investigators’ preoccupation with Lee led
them to ignore many other potential suspects who also had access to the same
materials Lee downloaded.
ROBERT VROOMAN They never went beyond Los Alamos, and this information
existed throughout the Department of Defense. I think the distribution of
this information was 546 mail stops. How many people do you think that is?
DAVE MARASH The worst suspicions seemed to have shaped not just the
investigation of Lee, but his prosecution as well. He was perceived to be
such a threat that even though he was still innocent until proven guilty, he
was held under the most restrictive regime.
MARK HOLSCHER He was essentially shackled and chained at all times when he
was moving within the prison. He was in solitary confinement. And for a good
period of time, he was actually under 24-hour ob—observation where someone
would be looking at him at all times through a peep hole or a window of his
cell.
DAVE MARASH Virtually, the whole top shelf of the Clinton administration’s
national security team, the CIA director, the national security adviser, the
energy secretary, and the attorney general seemed to have shared these dark
suspicions. They all reportedly signed off on Lee’s 59-count indictment,
including charges he harbored a malign intent to harm US interests and a
relationship with a foreign power, although scant evidence for either charge
has yet been produced. And the harsh conditions of his imprisonment were
approved by Attorney General Janet Reno, a stark contrast to the treatment
accorded a former colleague, John Deutch.
(VO) According to investigators, Deutch, a former director of central
intelligence, regularly took home floppy disks containing secret material and
used them on unsecured computers over a four-year period in which he was
first in charge of all American weapons acquisitions and last, director of
the CIA.
MIKE NEUMAN, COMPUTER SECURITY CONSULTANT The data stored on John Deutch’s
computer is, by far, the highest level of sec—of secured information that we
have as a country. They include budgets for the national recognizance
program, trip reports that he had with other countries with other agencies.
Certainly, the data stored on the home computer of John Deutch is at a har—a
far more—is far more valuable than that stored on Wen Ho Lee’s computer.
DAVE MARASH (VO) Not only was Deutch’s data more dangerous than Lee’s,
Neuman says, his handling of it may have been even more reckless.
(OC) Now, John Deutch did take what he felt were precautions to secure the
materials. He would copy documents and then erase the originals. Is that a
sufficient precaution to protect those materials?
MIKE NEUMAN Well, certainly not. It’s—it’s—there are widely available
programs which will recover deleted data off of hard drives.
DAVE MARASH To this date, the Justice Department has expressed no suspicion
on Deutch’s intentions and as yet no inclination to charge him with a crime,
which is how Robert Vrooman says the Wen Ho Lee case should and normally
would have been handled.
ROBERT VROOMAN If this case hadn’t been in the media in March of ’99, Lee
would have been probably just disciplined administratively for mishandling
classified, and it would have ended at that.
DAVE MARASH (VO) But it didn’t.
ROBERT KIM What this case indicates to us is that the federal government
was—was motivated in whole or in part by race.
DAVE MARASH (VO) This opinion, widely held in the Asian-American community
and among scientists working in America’s weapons research facilities, is
proving very damaging.
VICTOR HWANG, ASIAN LAW CAUCUS Asian-Americans are no longer applying to go
into the labs. There’s a boycott against the labs. Many of the other
scientists are fleeing the labs because of this scapegoating. They don’t
understand why Dr. Lee was singled out, and they don’t want to be the next
one picked on by the government.
ERNEST MONIZ, UNDER SECRETARY OF ENERGY I believe there’s—there’s no
question as we have gone around the complex that we have an issue that we are
addressing and need to keep addressing. We have had legitimate needs for
upgrading certain security areas and some of our scientists are concerned, I
think, about where—where this will lead.
DAVE MARASH If America’s national security really resides not so much in
protecting old secrets, as in uncovering new ones through scientific
exploration, the damage done by Wen Ho Lee’s security violations may be
dwarfed by the damage done by the investigation of him for them. I’m Dave
Marash for Nightline in Los Angeles.
JOHN DONVAN So did the government over reach on this case? We will put that
question to the US attorney who prosecuted Wen Ho Lee when we come back.
ANNOUNCER This is ABCNEWS: Nightline, brought to you by...

(Commercial break)
JOHN DONVAN To help lift some of the fog surrounding what happened last week
in the Wen Ho Lee case, we’re going to turn now to Norman Bay, the US
attorney who supervised the government’s prosecution. He joins us from
akil—affiliate KOAT in Albuquerque.
And Mr. Bay, help me understand this. Three weeks ago you were talking about
Mr. Lee, Dr. Lee, as an extremely dangerous man. Quoting from your own
motions, you said “He presents an unprecedented risk of danger to national
security.” You also said, “There is no condition that will reasonably assure
the safety of this country if Lee is released.” Now he’s released. He’s out.
Is he dangerous or isn’t he?
NORMAN BAY Well, John, you have to keep in mind what this case has been about
from its inception. It’s been about national security. It’s been about more
than 800 megabytes of classified information. That’s more than 400,000 pages
of information, it would be a stack of paper more than a 130 feet high, 13
stories of classified information that he transferred and then downloaded on
to 10 magnetic tapes, three of which were found as a result of the
investigation, but seven of which were not. He had no legitimate job-related
reason to do any of that. And it was a scale of information taking
unprecedented in the history of Los Alamos Labs.
The government was concerned, and that’s why we moved to detain him, because
we had sought his cooperation. We had not gotten it. But through the plea
agreement, for the first time, he agreed to tell us what he did with the
tapes. He gave us statements under oath and we had certain guarantees built
into the plea agreement that we could now rely upon what he said and verify
what he told us.
JOHN DONVAN Mr. Bay, I’m still not hearing, though, the answer to the
question. The anomaly that on—on September 2nd you were saying he was way too
dangerous to be out of prison. He could slip notes to his wife, who could
possibly get them out. Now he’s with his wife. He’s with his family. He may
go fishing. He’s basically free. How—how do you explain that this man seen
as so—such a high risk, now apparently isn’t such a high risk?
NORMAN BAY Well, the risk was predicated on the seven missing tapes and not
having any explanation from Dr. Lee as to why he made the tapes or what he
did with them. From the start, this case has been about trying to answer
three crit—critical questions, John. Why did Dr. Lee make the tapes? What did
he do with them? And did anyone else gain access to them? That’s what made
him a danger. Because in the absence of any explanation, there were a lot of
big, what-ifs out there.
JOHN DONVAN Do you think he’s a spy?
NORMAN BAY John, he’s never been charged with espionage, and from the start
of this case, even at the press conference, the government said that we did
not have any evidence linking him to a handoff of the evidence to...
JOHN DONVAN But you—you were prepared to charge him on 39 counts under the
Atomic Energy Act. Those counts involve the idea that he would have
transferred that data either to cause harm to the United States or to bring
advantage to a foreign power. Now that may not technically be espionage under
the law, but to ever—the rest of us, that sounds like spying. Did you think
that you could make that case against him, that he was involved in action
that would harm the US or bring advantage to another country? And what happene
d to those charges, if you believed them before?
NORMAN BAY Yes, we did. We thought we could prove that, and a grand jury
found as much. The Atomic Energy Act counts require the government to show
that Dr. Lee acted with an intent to injure the United States.
JOHN DONVAN And you believed that that was his intent?
NORMAN BAY He began to delete files left and right even though he wasn’t
supposed to have access to the classified computer system and tried to get
into the X division which is the classified part of Los Alamos even though
his access to that area had been terminated. In fact, after he was terminated
from X division on December 23rd, he tried to get in on Christmas Eve at 3:30
in the morning. I think all of that could—could fairly show that Dr. Lee had
an intent to injure the United States when he made these—these unprecedented
downloads of classified information.
JOHN DONVAN Mr. Bay, there are those who say, particularly in the
Asian-American community, that this was all about race, that this man was
targeted because he was born in Taiwan, has an Asian face, Asian eyes,
therefore he was looked at suspiciously from the beginning and that’s what
motivated this. And I’m putting the question to you and asking it to you also
as an Asian-American, what about that charge, because we’re going to be
hearing more about it in the program.
NORMAN BAY Dr. Lee was prosecuted not because of his ethnicity, because of
what he did. Because he downloaded this huge amount of classified information
more than 400,000 pages of information and had no explanation for why he did
it or what he did with that material. You know, I have to tell you, John,
that I am Asian-American, as you point out, and I’d like to think that I’m
sensitive to that issue. You know, there are a lot of similarities between my
parents and Dr. Lee. My parents came from China, they came here after World
War II. They became naturalized citizens just like Dr. Lee. And my dad worked
for the Department of Defense. He had security clearance, just like Dr. Lee.
And like Dr. Lee, he spoke English with an accent.
Let me tell you, if I had any notion that Dr. Lee was being singled out
because of the way he talked, because of the way he looked, or because of
where he was from, I would have taken that indictment and ripped it up faster
than you could say ‘This is garbage.’ Dr. Lee was prosecuted because of what
he did, not because of his race. And I know a lot of people don’t like to
hear me say that, but I have to tell you that because I believe it to be the
truth and it is the truth.
JOHN DONVAN Mr. Bay, thank you very, very much for joining us.
To many Americans, the Wen Ho Lee case has raised alarm bells. And we will
talk later with an advocate for the Asian-American community and a nuclear
weapons watch dog when we come back.

(Commercial break)
JOHN DONVAN Joining us now from our Los Angeles bureau is Kathay Feng,
program director at the Asian Pacific American Legal Center, and here in
Washington, Steven Aftergood, director of the Project on Government Secrecy
at the Federation of American Scientists.
And Ms. Feng, I know that the Asian community—Asian-American community has
serious concerns about this entire case. Can you tell me briefly what they
are, where they stand?
KATHAY FENG, ASIAN PACIFIC AMERICAN LEGAL CENTER The chief concern has really
been that from the very get-go, there’s been a lot of evidence that’s come
forward that there’s been a rush to judgment based on racial stereotypes that
evoked Asians as the historic and perpetual foreigner, being disloyal to our
country, really evoking the historical images of Asians as the yellow peril.
JOHN DONVAN And , Mr. Aftergood, you represent scientists who I understand in
the laboratories are beginning to have serious concerns about the effect of
this entire process on the morale of the establishment.
STEVE AFTERGOOD, FEDERATION OF AMERICAN SCIENTISTS Yes. I think this case is
a strong indication that the security system has gotten out of control and is
unchecked. The racial profiling issue is just one of several that require
further investigation. It is an issue that can be resolved if Congress would
subpoena the documents that Judge Parker had ordered the government to
provide.
JOHN DONVAN What do you think you would find in those documents?
STEVE AFTERGOOD Well, I don’t want to prejudge the answer, but I think the
defense suggested that there was some serious evidence of racial profiling
and selective prosecution.
JOHN DONVAN Ms. Feng, do—do you believe that Dr. Lee, Wen Ho Lee, is innocent
or are you saying you don’t really know?
KATHAY FENG I think none of us really knows. And I think that we also
acknowledge that Dr. Lee did mishandle some evidence. I think what we’re
particularly concerned about is the nature by which he’s been prosecuted, the
severity of the punishment that’s been imposed. The rush to judgment on all
sides, whether it’s by the media, Congress, the electeds or our own
Departments of Justice.
JOHN DONVAN Let me throw this question to both of you. As—as wrong as you
both feel that it is. What if racial profiling were to lead to a suspect who
is Asian. What—is that a tolerable situation given that it would yield the
result that investigators were seeking in the first place?
STEVE AFTERGOOD I think it’s built on a false premise. It ignores the most
damaging spies of all, which is the walk in, the volunteer who doesn’t fit
any profile. So I think it’s just bad counterintelligence policy.
JOHN DONVAN And you, Ms. Feng?
KATHAY FENG I think the real problem is that it violates one of the core
fundamental values and principles of the US justice system which is number
one, that we presume that a person is innocent until proven guilty. And
number two, that we judge person by his acts and not by who he is or what
race or ethnicity he is.
JOHN DONVAN What I noted and what Judge Parker said last week is that he
believes that Mr—Dr. Lee faced a real risk of conviction if the case had gone
ahead. That the case against him, it seems, he’s saying, is pretty good,
regardless of the racial profiling issue. What’s your response to that?
STEVE AFTERGOOD Well, I think—I think he was guilty of computer security
violations. And if he had simply been fired from his job and had his
clearance yanked no one would really have had grounds to complain. What
everyone is upset about is that the government’s response was so vastly
disproportionate to the offenses that were committed. That’s a threat to
everyone’s rights.
JOHN DONVAN Ms. Feng, your response to that.
KATHAY FENG I agree wholeheartedly. What troubles us most that—is that
several investigations of other individuals have gone down and similar kinds
of charges have been brought against people, but in the administrative arena.
So, the—the type of discipline that has been meted out has been a suspension
of priv—of security privileges or a firing from their position. But certainly
not a bringing of criminal charges, some 59 counts for which Dr. Lee would
have been in prison for the rest of his life.
JOHN DONVAN And each of you, very quickly, assess the damage. You first, Ms.
Feng.
KATHAY FENG The damage, unfortunately, I think, is on a large scale to
American society. Number one, if what we were really after was somebody who
supposedly had leaked nuclear secrets to China, we haven’t found that person
and we perhaps have lost the chance to get the truth— to get at the heart of
the truth because the Web was cast so small in the beginning and we narrowed
in on a single suspect based on his ethnicity.
JOHN DONVAN And you, Mr. Af...
KATHAY FENG But, number two...
JOHN DONVAN Well, I’ve got to interrupt you and go to Mr. Aftergood.
STEVE AFTERGOOD I would say that the main damage is that the credibility of
the government on national security and espionage has been shredded and
lasting damage has been done to the national laboratories.
JOHN DONVAN Mr. Aftergood, Ms. Feng, thank you both very much. And I’ll be
back in just a moment.
(Commercial break)
JOHN DONVAN Tomorrow morning on “Good Morning America,” a special look at
the exhausted American worker. That’s our report for tonight. I’m John
Donvan in Washington. For all of us here at ABCNEWS, good night.