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From: The Washilngton Post Company, Vernon Loeb and Walter Pincus
Time: 3:49:45 PM
So let us assume that Wen Ho Lee put everything our country ever devised about our atomic secrets on his computer, he knew that his computer could be accessed by Chinese Hackers. Let's assume that they knew he was compulsive about getting his material where he could access it a moments notice and when he was not looking they came in and downloaded everything he had placed on his hard drive. Can he be prosecuted for his negligence and is this the reason that no one has eaten his lunch yet? Robert A. Spira Chapman Spira and Carson LLC
Prosecuting Lee Is Problematic By Vernon Loeb and Walter Pincus Washington Post Staff Writers Monday, May 24, 1999; Page A5
Espionage suspect Wen Ho Lee's transfer of top secret computer programs from a classified to a vulnerable computer network at Los Alamos National Laboratory has left federal prosecutors wrestling with the question of whether such mishandling of classified information in cyberspace constitutes a crime.
Lacking evidence of espionage, FBI agents have focused on Lee's unauthorized data transfer ever since they searched his desktop computer in March and discovered top secret "legacy codes" in a system that could have been accessed by hackers.
But there is no known prosecution of anyone for transferring classified data from classified to unclassified government computer systems, leaving prosecutors to fathom the frontiers of cybersecurity under espionage statutes that make no reference to computers, according to lawyers specializing in national security law and U.S. officials familiar with the case.
Lee, 59, a Taiwan-born nuclear physicist who is a U.S. citizen, was fired March 8 for alleged security violations at Los Alamos and identified by U.S. officials as an espionage suspect, despite their inability to charge him as a spy for China. Congress is investigating why the FBI and the Justice Department failed to search his office computer prior to his dismissal.
That slow response drew more criticism yesterday. The chairman of the Senate intelligence committee, Richard C. Shelby (R-Ala.), renewed his call for the ouster of Attorney General Janet Reno. Branding her handling of the case "indefensible," Shelby said on CBS's "Face the Nation" that "the attorney general ought to resign and she ought to take her top lieutenants with her."
On the same show, Sen. Robert G. Torricelli (D-N.J.) also criticized Reno, although he stopped short of advocating resignation: "It's time for President Clinton to have a conversation with the attorney general about her ability to perform her duties and whether or not it is in the national interest for her to continue." Torricelli said Reno had displayed "failures of judgment" that were "inexplicable." He singled out her decision not to approve a wire tap of Lee "despite overwhelming evidence that there was probable cause and that the national security was being compromised."
White House spokesman Barry Toiv said Clinton "has full confidence in Attorney General Reno," Reuters reported.
Lee has denied passing classified information to China and has said through his attorney he took "substantial steps" to safeguard the transferred computer codes.
A provision of the federal espionage statute makes the removal of classified defense information from its "proper place of custody" through "gross negligence" a felony punishable by up to 10 years in prison, according to lawyers specializing in national security cases.
But it is unclear whether Lee could be charged under that provision, absent intent on his part to make unlawful use of the data or evidence it was obtained by unauthorized individuals, they said.
"You've got a clear security breech," said former CIA inspector general Frederick Hitz. "But as far as a criminal prosecution . . . I would think that's going to be tough."
Another law makes the "unauthorized removal and retention of classified documents or material" at one's home a misdemeanor punishable by a maximum $1,000 fine and one-year prison sentence. The measure was enacted to safeguard classified materials against careless handling, not espionage.
Two former National Security Agency employees, a husband and wife, were the first to be prosecuted under the law last year, pleading guilty to having retained classified documents at their home after leaving government service.
But the lawyers specializing in national security cases say they do not believe the statute could be used against Lee, because he apparently did not remove the programs from government property.
They said in two recent cases involving computer transfers of classified information, one involving another Los Alamos scientist and the other, former CIA director John M. Deutch, the Justice Department declined prosecution.
The scientist at Los Alamos, who has not been publicly identified, moved classified nuclear weapons data last year from the laboratory's classified to its unclassified network in a transfer analogous to that performed by Lee.
But the transfer was ultimately determined to have been "inadvertent," according to a senior Energy Department official. The FBI found no criminal intent and closed the case, the official said.
Deutch was investigated by the Justice Department for transferring more than 30 classified documents to his personal, unsecured laptop during his tenure as CIA director from May 1995 to December 1996. The security breach was discovered when CIA specialists went to his Washington home to remove a classified computer and safe and discovered the classified files on his personal computer.
Under CIA policy, Deutch's security violation was forwarded to Justice for review, but officials there declined prosecution. The case was recently recently returned to the CIA for review by Inspector General Britt Snider, who is expected to complete a report on the matter soon.
Deutch, who does government consulting and teaches at Massachusetts Institute of Technology, could have his security clearance lifted for a period of time, one government source said.
© Copyright 1999 The Washington Post Company