Step Back, Take a Breath Before Reacting to Lee Case

Until last week, Wen Ho Lee was described as the man who had unlawfully taken America’s “crown jewels�--its national security secrets--which the government claimed he intended to sell to a foreign power. On Sunday, the government signaled that it would drop those allegations, indeed drop almost its entire case, in return for Lee’s agreement to plead guilty to a single felony charge that he had improperly downloaded classified material onto an unsecure computer. A court hearing on the plea agreement is scheduled for today.

The Lee case is a good example of how government secrets may not be as important in reality as they appear to be in theory. Indeed, in Lee’s recent bail hearings, U.S. District Judge James A. Parker handed Lee’s prosecutors a string of blows as each of the government’s allegations, when put to the light, simply did not make the case against Lee. Facing the likelihood that it would have to hand over thousands of classified documents about why it had singled out Lee, the government was prepared last weekend to simply walk away.

No one will know, apparently, what kind of case the government actually has against Lee. Well before Lee faced the possibility of a trial, however, all sorts of blame and accusation occurred both within and outside the government about how someone whom they strongly believed might reveal national security secrets to a foreign power might have slipped through our fingers. Congress and the Department of Justice sought to learn lessons from the Lee case well before any lessons were worth learning.

One good example of this is the controversy over the Foreign Intelligence Surveillance Act, or FISA, a statute that permits secret electronic surveillance in the United States based on a probable cause finding that the target of the surveillance is a foreign power or an agent of a foreign power.

There has been, by the very nature of their roles, historic friction between the FBI and Justice Department lawyers about how much information is needed to make a probable-cause finding. Probable cause, as most lawyers know, is hardly a definitive standard and relies much on context and factual determinations. The FISA statute, passed as a way to control FBI abuses by requiring court approval of surveillance, contemplated--indeed reinforced--this tension because the FBI is required to make the case for espionage before surveillance is even allowed.

In the case of Lee, Justice Department attorneys refused to approve a FISA application against the Los Alamos scientist early on in the FBI’s investigation, either because the FBI information was not strong enough or the attorneys feared that the court would deny the request. When the public was being told that Lee might be the newest Benedict Arnold, the Justice Department’s “cautiousness� seemed dangerous--how could the department be so soft on spying?

In light of the Lee case, then, Justice Department lawyers have been the subject of extensive pressure and criticism about their apparent cautiousness. Amendments to FISA have been proposed that would loosen what are, to some, FISA’s already loose standards. Congressional hearings have been held. An internal department report, based on the Lee case, criticized department lawyers for not being aggressive enough. The FBI, the agency that certainly will most need to explain its role in the Lee case, lost little time in defending its own actions (a “he would have been caught years ago but for the lawyers� excuse), though the agency failed to mention that it had, at one point, ceased to consider Lee as a prime suspect.

The Lee case politicized what should not be a political decision: the appropriate constitutional standards that should apply in surveillance cases. Whether in cases of espionage, terrorism or the national defense, illegally obtained information cannot be used in criminal courts, so careful legal analysis is required before we can let the FBI loose. The near 100% success rate of the Justice attorneys in obtaining court approval of FISA surveillance requests may not simply be attributable to the fact that courts are exceptionally deferential to law enforcement in the national security realm. It may also be true that these lawyers--at least prior to the political name-calling that followed the Lee indictment--have been historically willing to abide by their constitutional obligations. To call the lawyers too cautious, or to seek legislation that weakens their authority, defies the reality that there is more FISA surveillance today than ever before in our history.

The FBI may never have had a good case against Lee; it is possible that a more vigilant examination of the facts would have shown that well before Lee’s incarceration. But lawyers for the department should not now be criticized for seeking information that would ensure constitutional and statutory protections. And Congress should now abandon its premature assessment that the FBI needs to be given more freedom.

As a lawyer in the national security arena, specifically counter-terrorism, I hear the too-common sentiment that the law--whether it be the 4th Amendment’s prohibition against unreasonable search and seizure or regulations against racial profiling--makes Americans more susceptible to danger. We could be free from terrorism, or spying, or drug trafficking--if only the lawyers would stop being so lawyerly. The failure of good and sound intelligence, however, should not be mistaken for a failure of the law.

In the end, there may have been many mistakes made in the Lee case. Only time will tell what they may have been. Until then, we owe it to our liberties, and certainly to Wen Ho Lee, to ensure that we do not overreact to this case.