[ISN] Prosecuting Lee Is Problematic

From: cult hero (jerichoat_private)
Date: Tue May 25 1999 - 23:05:43 PDT

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    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
    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
    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
    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
    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
    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. 
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