http://www.washingtonpost.com/wp-srv/WPlate/1999-05/24/080l-052499-idx.html
Prosecuting Lee Is Problematic
Physicist's Mishandling of Computer Data May Not Be Crime
By Vernon Loeb and Walter Pincus
Washington Post Staff Writers
Monday, May 24, 1999; Page A05
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.
-o-
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Received on Fri May 28 15:51:53 1999