The plea agreement that last week sprang former Los Alamos nuclear scientist and suspected China spy Wen Ho Lee from a nine-month stint in solitary was widely viewed as the pathetic conclusion to an especially embarrassing moment in U.S. counterintelligence history. Only days after dubbing Lee too great a national security risk to release on $1 million bail and under strict house arrest, government prosecutors on September 13 accepted a guilty plea on one out of 59 charges of improperly transferring restricted information, without additional time to be served. Those who supported Lee should have been jubilant.
Yet in reality, while it took a hit in the press, the government may have won bigger than even its attorneys claimed. Prosecutors crowed that, at last, they would get an explanation about seven computer tapes supposedly containing U.S. nuclear secrets, which Lee apparently destroyed. But the real score for the national security crowd, Asian American and civil rights advocates say, was not having to address accusations of selective prosecution, racial profiling, xenophobic rhetoric, and unconstitutional maneuvering—problems with significance far beyond this single case. For that reason, some of Lee’s staunchest supporters regret the deal that set him free.
The press last week used words like “crumbled” and “collapsed” to describe the government’s case, and the presiding judge, James A. Parker, lamented that the highest officials had “caused embarrassment by the way this case began and was handled.”
In fact, the case against Lee was riddled with weak spots. Some major problems included: 99 percent of the “crown jewels” of national defense data that Lee supposedly stole turned out to be easily accessible public information, according to defense experts, and was only classified as secret or confidential after he was arrested; from a list that included several non-Asians suspected of similar offenses, only Lee was singled out for investigation; no substantive evidence emerged to suggest that China actually possessed the nuclear secrets in question; prosecutors were unable to charge Lee with espionage and in fact had trouble deciding whether to assign his loyalties to China or Taiwan; an FBI agent admitted to repeatedly giving false testimony that cast Lee as deceptive and too dangerous to be released on bail.
Nevertheless, Lee for nine months was locked up in solitary confinement and shackled for his daily hour of exercise. Investigation of Lee coincided with a wave of dramatic news stories that relied on government sources to describe a massive Chinese nuclear espionage effort. A March 21, 1999, Washington Post article explained that the Chinese had been perfecting their technique of “tasking thousands of Chinese abroad to bring secrets home one at a time like ants carrying grains of sand” since “at least the fourth century B.C., when the military philosopher Sun Tzu noted the value of espionage in his classic work, The Art of War.”
It was therefore easy for Lee’s supporters and civil rights advocates to conclude that there was never really a case against him, but rather that he was the victim of racial profiling. Even individuals who could hardly be called soft on suspected spies—the chief counterintelligence officer at Los Alamos National Laboratory and the former acting director of counterintelligence at the Department of Energy, to name two—admitted that Lee was targeted because of his race and national origin.
But as far as this case goes, suspicions about racist government practices may never be confirmed. The prosecution approved the incongruously lenient plea deal just days before it was to submit to the judge volumes of records assumed by many to contain evidence of racial profiling. The timing was “funny,” says one of the attorneys for the Lee family. Yet following the deal’s close, prosecutors and U.S. attorney general Janet Reno predictably denied Lee was the victim of unfair treatment or deserving of an apology.
Prosecutors also covered themselves in two sections of the plea agreement, in one demanding that Lee “acknowledge that the United States had and has a legitimate national security interest in determining what occurred with respect to the files and the tapes,” thereby helping to justify the controversial investigation. The agreement also prohibits Lee from accessing information about selective prosecution and racial profiling in relation to the case. (His lawyers say such information could become relevant during a separate privacy suit Lee has filed against the government.)
Dissatisfaction with the plea agreement has led some who worked the hardest to free Lee to wish the fight had continued.
Advocates sympathize with Lee’s position in taking the deal. Diane Chin of San Francisco’s Chinese for Affirmative Action contends that Lee was essentially coerced—by the severe conditions of his imprisonment and the likelihood that the government would utilize its inexhaustible resources until it obtained a conviction—into taking the deal.
Yet “now that Wen Ho Lee is free, I’m not really that happy,” says UC San Francisco biochemistry professor C.C. Wang, echoing the sentiments of others who support Lee because they feel he was unfairly targeted. “I don’t think the government should get away with what it has done. I bet next time, it’ll be easier for the government to do it again.”
CAA’s Chin, who coordinated public education efforts about the civil rights issues in Lee’s case, says, “We wanted a win, a full-out victory,” including disclosure of the government’s selective prosecution practices. Indeed, Asian American Legal Defense and Education Fund director Margaret Fung says that Lee’s release “doesn’t change anything for those of us who are concerned with racial profiling or bias.”
Eric Tang of CAAAV Organizing Asian Communities has a stronger take, saying, “Lee’s folding is a dark day in Asian American history.”
“The conditions under which the Wen Ho Lee case surfaced are still there,” warns UC Berkeley Asian American studies coordinator Ling-chi Wang, arguing that the case should be viewed as part of a broader pattern of anti-Asian politics.
One of those conditions is a “yellow peril” panic over Chinese nuclear motives and accompanying stereotypes of “perpetual foreigners” and “inscrutable Orientals,” Asian American advocates say. This alarmist sentiment is encapsulated in a greatly publicized January 1999 report of the House committee on China-related national security headed by Congressman Christopher Cox. Hundreds of pages laden with more rhetoric than data paint a frightening picture of a Chinese nuclear threat and an ethnic group almost pathologically prone to spying. The report, Asian American advocates argue, is part of a wider trend in official anti-Asian attitudes legitimized by post-Cold War fretting over a remaining ideological foe and partisan efforts to exploit those worries. Only political sensationalism, Lee’s supporters say, can explain the discrepancy between the severity of his imprisonment and the leniency of his release.
Reliance on government reports of a Chinese nuclear espionage problem helped The New York Times to shape initial perceptions of Lee as a serious spy suspect. In an explosive March 6, 1999, article, Times reporters James Risen and Jeff Gerth broke the story, not yet naming Lee but revealing that nuclear secrets had been stolen from the Los Alamos laboratory. They cited seemingly damning information based on government sources about Lee’s activities that later turned out to be either untrue or reported in the wrong context, according to Lee’s lawyers. (Information contained in that Times story is part of the basis for Lee’s privacy suit against the government, which claims that personal information was illegally disclosed by officials and then made public.)
A Times editorial several weeks later complained that, despite FBI suspicions of Lee, he had for more than two years “maintained his top level security clearance, was assigned to highly sensitive weapons work and was even briefly allowed to employ a Chinese citizen as a research assistant.” As if Lee’s guilt were already a given, the editorial sniped that “FBI officials initially seemed more concerned with not tipping off their suspect to the investigation than they were with keeping him away from additional weapons secrets.”
But even with Lee’s release and his perceived, if not actual exoneration, Asian American advocates say the case has done little to change yellow-peril-colored attitudes that accompanied the investigation. Last Tuesday’s edition of The New York Times, Berkeley’s Wang says, demonstrated as much. An editorial raising concerns about racial profiling in the Lee case ran concurrently with a front-page story reviving alarm over China’s possession of U.S. nuclear secrets (other publications, such as The Nation, have disputed that China enjoys this possession) and lamenting that the government was “Back to Square One” in finding the real spy.
“My God, they have not learned a thing,” Wang says of the continuing China-fixated “witch hunt.” In fact, the focus of considerable media and political commentary in the Lee deal’s aftermath has not been racial bias, but rather the loss of months’ worth of time in finding the true China agent. Such opinions have skewered officials not for manhandling Lee but for mishandling the earliest stages of investigating him. In some circles, news of the plea deal prompted criticism of Reno and the Justice Department for turning down an early FBI request to tap Lee’s phone—a move that, despite its questionable constitutionality, could have saved the government face by keeping the investigation under the public radar.
Advocates this past Monday used a long-scheduled meeting with White House representatives at New York University Law School, initially meant for discussing Asian American social-service issues, to demand action on racial-profiling allegations in the Lee case. Yet many worry that an independent investigation or congressional probe could devolve into a partisan panic over strengthening national security rather than help to eliminate bias in counterintelligence operations. The same government bodies that might head the inquiry were only months ago engaged in hearings about Chinese nuclear espionage plots, using Lee as a prime example. Besides, Chin of CAA says, there is considerable doubt that a truly impartial investigator on the controversial matter could be found, or that such an investigator would be granted the authority to review confidential government information. Even in the hypothetical instance of an unbiased and thorough investigation, critics of the government say, real change would be impossible to implement in an essentially self-regulating counterintelligence establishment.
Tang of CAAAV goes beyond complaining that the Lee case will not yield reforms. He argues that, as in the aftermath of the 1970s COINTELPRO scandal, when Congress publicly reprimanded the FBI for engaging in unconstitutional practices to monitor and squelch political activists, the embarrassment from the Lee case may only encourage counterintelligence operations to become more insidious and efficient in targeting suspects outside the public’s view.
Asian American advocates take small comfort in the one benefit they say has emerged from the Lee case: greater political awareness within their communities. Biochemistry professor Wang describes himself as having been entirely apolitical before the case began, saying, “This was a wake-up call to me in realizing how deeply rooted the stereotypes against Asian Americans have been, and how easily the government can exploit them.”
Chin says the Lee case and its political context are reminders to Asian Americans of attitudes stretching as far back as 1877, when a congressional committee to investigate Chinese immigrants concluded that they “can never assimilate with us; that they are a perpetual, unchanging, and unchangeable alien element. . . . [The group] is an element both demoralizing and dangerous to the community within which it exists.”