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Caveat lector

15 June 1999

Our current howler: Evidence later

Synopsis: The New York Times has finally acknowledged the weakness of the case against Lee.

Suspect in Loss of Nuclear Secrets Unlikely to Face Spying Charges
David Johnston, The New York Times, 6/15/99

China’s new hostages
Angelo M. Codevilla, The Washington Times, 6/7/99

Official Confirms Security Breach
Vernon Loeb and Walter Pincus, The Washington Post, 4/29/99

Here at THE HOWLER, we have no way of knowing how China obtained U.S. nuclear secrets. In particular, we have no way of knowing whether Wen Ho Lee passed on secrets to the Chinese.

But last month, we pointed out the risible state of the “evidence” that had been published against Lee (see THE DAILY HOWLER, 5/26/99). And this morning, the New York Times--which hyped the Lee story--starts to acknowledge what we told you then.

David Johnston’s admission is slightly grudging. But here’s where Johnston lists the problems with the evidence against Lee:

JOHNSTON: Over all, officials said, the evidence [against Lee] is a mosaic of fact and conclusions that suggests why counterintelligence cases are frustrating and often fail to result in prosecutions. These are some of the points:

  • There are no witnesses who saw Mr. Lee engage in espionage.
  • There is no evidence of a motive in the form of unexplained income...
  • Nor are there indications that Mr. Lee...was ideologically allied with Beijing.
  • Even the evidence that a theft occurred is circumstantial.
Why do espionage cases “often fail to result in prosecutions?” Because sometimes there’s no direct evidence that a theft has occurred! And how’s this passage for understatement:

JOHNSTON: One critical component is missing [in the case for an indictment]. There is no direct evidence that Mr. Lee ever passed on or tried to pass on to China any classified national security information.

Oh, that! We have no way of knowing whether Lee transferred data. But the list of problems with the evidence is daunting, telling us Lee had no apparent motive--and that the alleged theft may not even have occurred.

But if these cases sometimes don’t produce prosecutions, this case produced a pile of bad journalism--starting with the original Times stories, which failed to stress the evidentiary problems that Johnston details today. Chris Matthews, of course, quickly informed viewers that Lee had “given away the entire nuclear capacity of the United States”--a howling misstatement of the known facts about Lee (see THE DAILY HOWLER, 5/27/99).

It would be hard to compile a full list of misstatements that flowed from the original Times reporting. But we have selected one notable example--an op-ed in the Washington Times by Boston University professor Anthony Codevilla.

Codevilla wasted no time in overturning due process:

CODEVILLA: In what may be the most obvious indicator of the administration’s priorities, Wen Ho Lee and Peter Lee, who reportedly passed the most clamorous secrets, are not even in jail.

To Codevilla, a scientist should be put in jail if he is “reported” to have passed on secrets. But then, you can hardly blame him for his concern, based on the volume of material he said Lee had passed:

CODEVILLA: As for warheads, through the efforts of Wen Ho Lee at Los Alamos, China apparently got the entire dump on design and manufacturing of all our major nukes, including the W-88 warhead.

A gross misstatement of what is known, as we’ll see below. Codevilla seems to be referring to the alleged downloading of “legacy codes.” He has a strange take on that, too:

CODEVILLA: The administration’s formal explanation for not even bringing charges against Wen Ho Lee is that evidence shows only that he downloaded the information onto a nonsecure computer site, which was then accessed by persons unknown. By this logic no one could be prosecuted for espionage for putting stolen documents into dead drop such as a hollow tree, for later pickup by foreign agents.

But logic is not Codevilla’s strong suit. There are no valid reasons for dropping data in a tree, but it has been clearly explained that downloading of the type alleged by Lee is often done for innocent reasons. And all stories on the downloading, including the original Times story (4/28), have stressed that it is not known that foreign agents actually accessed these files. In his 4/28 story, Jeff Gerth cited American officials, who did say “there was evidence that the files were accessed by someone after they were placed in the unclassified network.” But is it possible that the “someone” was Lee himself? None of the New York Times stories denies the possibility, and the Washington Post said this the next day:

LOEB AND PINCUS: Another high-ranking official reported no indication that the information was compromised. He denied a published report of evidence showing a password had been misused to gain access.

In short, it is not clear that Lee’s downloading was done with bad intent, or that it actually produced data loss. Prosecution for leaving blueprints in trees remains alive and well to this day.

What is the truth about Wen Ho Lee? At THE HOWLER, we have no way of knowing. But Johnston details the shaky state of the evidence--and highlights the volumes of overstatement that flowed from the original reporting. Are counterintelligence cases uniquely frustrating? Hardly. Lack of evidence stops prosecutions all the time. But lack of evidence is normally taken as a sign the alleged offence may not have occurred. Many who have written about Wen Ho Lee have refused to take “we don’t know” as an answer--and have filled the discourse with excited assertions that go far beyond the known facts.

Conviction first: From today’s article:

JOHNSTON: Mr. Lee emerged as a suspect because he was one of the few researchers in the area that is thought to have been compromised, computational fluid dynamics. Many people at the Energy Department were aware of the information. But officials said Mr. Lee was the sole scientist with full access who had also visited Chinese counterparts in Beijing. [Our emphasis]

Let’s understand this: “Many people” at the Energy Department could have been the source of a theft. Rationally, Lee’s visit to China formed the basis for a probe. It did not form a rational basis for articles which assert that Lee committed the alleged crime.