by David Wise
At the time of the trip, Lee was working at Los Alamos. For eight years before that, however, he had been at the Livermore lab as a research physicist specializing in inertial confinement fusion, or ICF, the use of lasers to attempt to trigger what amounted to miniature, tabletop thermonuclear explosions. In these experiments, powerful lasers are focused on a hohlraum, a small gold cylinder no bigger than a paper clip that holds a tiny capsule containing deuterium and tritium. The goal is to cause the fuel inside the capsule to ignite, creating for a fraction of a second a miniature star and producing new energy by fusion, the way the sun does. The process, if successful, could be used to produce nuclear energy to generate electricity, but it is also similar to what happens in a thermonuclear bomb.
The dance had begun on January 9, 1985, when Lee met with Chen Nengkuan of the China Academy of Engineering Physics, the agency that designed and developed the country's nuclear weapons. In Chen's hotel room in Beijing, Lee was asked questions by him that involved classified information. Chen told Lee he did not need to speak, he could just nod yes or no.
That would foil any eavesdroppers. But it would also allow Lee to claim that he never "talked" to Chen about any US secrets.
Chen, one of China's top scientists in its nuclear weapons program, had earned a PhD in physics at Yale in 1950. He drew for Lee a diagram of a hohlraum, and asked a series of questions about it. The business of just nodding yes or no was soon forgotten, and Lee answered questions about the dimensions of the cylinder and where the capsule was located inside it.
The next day, Lee was picked up at his hotel by Chen and driven to another hotel where a group of Chinese scientists was waiting in a small conference room. For two hours, Lee answered questions and drew several diagrams, including sketches of hohlraums. He also discussed problems the United States was having in its simulated nuclear weapons tests.
On the face of it, the government appeared to have an airtight case against Peter Lee. By his own admission, he had revealed classified information in 1985 on the laser program and in 1997 on the ocean-imaging project and its application to detecting submarines. He had lied about the purpose of his trip in 1997 and in denying he had discussed technical subjects in China. He then tried to deceive the FBI with phony travel vouchers to prove he had paid for the trip himself.
The case was assigned to Jonathan Shapiro, a young, gung-ho federal prosecutor in Los Angeles, a Harvard graduate with a law degree from the University of California at Berkeley and a Rhodes scholar. Shapiro, as he later testified to a Senate judiciary subcommittee chaired by Senator Arlen Specter, had "what I thought was a dead-bang case."
But Shapiro soon found himself at loggerheads with the Department of Justice in Washington. "It is no secret that in the Peter Lee prosecution," he testified, "I strongly advocated for the most aggressive approach in pursuing Mr. Lee on charges of espionage. It is also no secret that I had disagreements with my supervisors at the U.S. Attorney's Office and with the Department of Justice about how the case should be investigated and charged."
On hundreds of other cases that Shapiro had prosecuted, he did not need approval from Washington. But espionage was different. No spy case could move forward without a green light from the attorneys in the internal security section of the department.
And the lawyers in Washington quickly came to regard the ROYAL TOURIST case as a quagmire. The problem was that the information Lee had revealed in China on both occasions was classified at the time he had disclosed it, but later declassified and discussed publicly by US officials.
There is considerable misunderstanding about the classification system both in and outside the government. Documents are classified by executive order, not by law. Indeed, although the military classified documents starting in World War I, there was no civilian document-classification system until President Harry S. Truman issued the first presidential order on classification in 1951. Later chief executives have issued similar orders, providing that documents may be marked CONFIDENTIAL, SECRET, or TOP SECRET, depending on how much damage to national security their disclosure might cause.
But a whole superstructure of special intelligence classifications above TOP SECRET has sprung up, exotic code names like DINAR, UMBRA, or SPOKE, usually assigned to protect the methods used to gather intelligence, such as spy satellites or electronic intercepts.
An executive order, in short, is not a law. The classification system was not established by Congress. Created by the president, it applies only to employees of the federal government. Only Congress can pass laws. A president can instruct federal employees about how to mark a document TOP SECRET. But disclosing a classified document does not necessarily break any law.
The espionage statutes date back to 1917 and World War I, long before President Truman invented the classification system. With a narrow exception dealing with codes and communications intelligence, the statutes do not penalize disclosure of classified documents as such but of information "relating to the national defense." This is a crucial distinction, since many documents that should never have been classified in the first place are marked SECRET or TOP SECRET by overzealous bureaucrats. Sometimes officials wield the secrecy stamp on a document to feel important or because they know that otherwise their superiors may not even bother to read it.
To criminalize leaks of government information simply because the information is marked classified would be absurd: in 2008 the government classified 23,421,098 documents, a total that had more than doubled in six years. It is hardly likely that the government has that many real secrets to withhold from its citizens. Unnecessary classification is a fact of life in Washington. During World War II, the Army actually classified the bow and arrow as a "silent flashless weapon." One government agency classified the fact that water does not flow uphill. In the early years of the space program, the Pentagon classified the fact that it was sending monkeys into space, although a plaque on the cage of a macaque at the National Zoo announced to visitors that this particular monkey had been sent up two hundred thousand feet on an Air Force rocket.
When the government tries to invoke the espionage laws to prosecute someone, it must prove that a particular classified document fits the statutory definition of "relating to the national defense." It is not enough for prosecutors simply to show that a document is classified, since it may have been improperly classified. Otherwise, if publication or disclosure of classified information were illegal per se, the government would have total control over information and the First Amendment would become meaningless.
As a practical matter, however, prosecutors are usually reluctant to bring a case before a jury unless they can show that a defendant has revealed classified information. If the information is not classified, jurors might well wonder how the government can claim that the documents relate to the nation's defense and that their disclosure would harm national security.
And that was precisely the problem that the prosecutors faced in the ROYAL TOURIST case. A document that Lee had written in 1982, which he discussed in China in 1985, was classified. But scientists the world over were working on inertial confinement fusion, and by 1993 the ICF experiments that Lee spoke about had been declassified.
Moreover, by 1993 the Energy Department was encouraging other countries to simulate nuclear explosions in the laboratory—the ICF work that Lee was engaged in—in order to discourage other nations from conducting atmospheric nuclear tests. Michael Liebman, the Justice Department attorney responsible for the Lee case, worried that if Lee was prosecuted for his lectures in 1985, he could claim he was only trying to help persuade China not to conduct tests of nuclear weapons in the air.
The scientist's discussion about the ocean-imaging project and the use of radar to track ships and subs presented an even greater hurdle, in Liebman's view. But Lee had admitted telling the Chinese in 1997 that the radars could also be used to detect submarines. Liebman thought he could use that indiscretion to build an espionage case against Lee. Then Liebman was
dismayed to discover a March 1995 article on the Livermore website, a date that was two years before Lee's trip to China.
Headlined "Radar Ocean Imaging," the article discussed Livermore's role in the joint US/UK program: "This project focuses on the detection by radars of surface manifestations of moving, submerged submarines." Oops.
It got worse. A few days later, Liebman found that in April 1994 Dr. Richard E. Twogood, who managed the ocean-imaging project at Livermore, boasted in an open session of the House Armed Services Committee that the program "has made important progress in the development of methods to detect submarine signatures with remote sensing radars" that could measure "surface effects produced by undersea disturbances."
When he testified before the Senate Subcommittee on Department of Justice Oversight in 2000, Twogood had difficulty deciding on the level of classification of the data about submarine tracking that Lee had disclosed in China. He had reviewed Lee's confession to the FBI. "When I saw the videotape and the audio tape, my immediate response was that it is at least confidential, and I thought it was likely ... secret." Twogood said he told Bill Cleveland, then in charge of security at Livermore, that "it probably was secret." A document introduced at the hearing indicated that Twogood thought the information about detecting submarines was classified "Secret/Crimson Stage."
Shapiro was unhappy that Twogood was the only government witness provided to him who could testify that Lee had disclosed classified information. But Twogood waffled on the level of classification.
The prosecutor kept asking the Navy for someone who could clarify just how secret the submarine-tracking data was. Twogood, Shapiro told the judiciary panel, was "the best I could come up with." But, he added, "Nevertheless I had Twogood and I was going to use Twogood." The problem was that "Dr. Twogood's opinion evolved." As a witness, Shapiro fretted, Twogood was not too good. "Dr. Twogood, in my view, would have gone down in blue flames on cross-examination."
Shapiro also testified that he had wanted to arrest Lee when he confessed, but that the Justice Department vetoed him, saying it wanted more time to study the evidence. Shapiro said he wanted "to put the cuffs on him and let him taste incarceration.... My frustrations in this case began when I wasn't allowed to hook Mr. Lee up."
But the biggest blow to the prosecution came from an unexpected quarter—the United States Navy. John G. Schuster, head of the Navy's submarine security branch, wrote a memo evaluating the damage caused by Lee's disclosures to the Chinese. Although the memo purported to give "classification guidance," it was all over the lot. The memo said the radar techniques were unclassified unless applied to "submarine wake signatures," in which case they were SECRET. But it also said that, on the other hand, Lee's discussion was taken from a document marked CONFIDENTIAL. And since the subject had been discussed in unclassified briefings and publications, "it is difficult to make a case that significant damage has occurred."
Then came the kicker: "Further, bringing attention to our sensitivity concerning this subject in a public forum could cause more damage to national security than the original disclosure." For that reason, Schuster urged that Lee not be prosecuted for talking about radar to track subs. Or, as Schuster testified, he opposed "a prosecution that might risk exposure of other non-acoustic ASW [antisubmarine warfare] information."
If Shapiro thought that Twogood was a problem, the Schuster memorandum was an exponentially bigger obstacle. The Navy was saying, in effect, yes, ROYAL TOURIST disclosed SECRET information, but we don't want any court trial that advertises how to track subs.
In an interview, Shapiro confirmed that "the Navy's reluctance was a problem." It was, in fact, a huge obstacle, although only one among the many he faced.
The two principal espionage statutes are contained in Title 18 of the US Code. The penalties for each are very different.
Section 793, "Gathering, transmitting or losing defense information," is aimed at anyone who obtains defense information with the intent or reason to believe that it is to be used to injure the United States or help a foreign nation. It applies as well to anyone who has either lawful or unauthorized possession of such information and passes it to someone not entitled to receive it, or through "gross negligence" allows the data to be removed or lost. For violators, it provides fines or a ten-year prison sentence, or both.
Section 794, "Gathering or delivering defense information to aid foreign government," is much more draconian. It is aimed at anyone who, with intent or reason to believe that it is to be used to injure the United States or help a foreign nation, transmits to a foreign government information "relating to the national defense." Depending on the type of information passed, the penalty is either death or imprisonment up to and including life.
Shapiro believed he could convict Lee under 794. He reasoned that even though the secrets revealed in China by Lee were later declassified, he had broken the espionage law at the time he lectured to the Chinese scientists both in 1985 and 1997. But Shapiro's superiors at the Justice Department did not authorize him to move under that law. He was allowed only to threaten to use 794 for leverage in obtaining a plea bargain. If he failed to obtain a guilty plea, he was told he could come back to the department and the matter would be reconsidered.
On top of that, the FBI made it clear to the prosecutor that the bureau was more concerned with its counterintelligence mission than in convicting Peter Lee. Michael P. Dorris, a senior FBI official, said exactly that in a memo he wrote on November 25, 1997.
The memo emphasized that "the FBI is much more interested in the intel yet to be garnered than in punishing felons. Therefore, any plea agreement must contain language permitting a thorough consensual search and complete cooperation by RT [ROYAL TOURIST]. He must also agree to tell all. Maybe even submit to a polygraph, who knows. Anyway, I think you get the idea."
In his testimony to the judiciary subcommittee, Shapiro made no secret of his frustration in trying to move the case forward. Part of the problem, he said, was that "there were individuals who weren't interested in prosecuting Peter Lee so much as they were interested in garnering intel, getting intelligence. I'm a one-trick pony. I do one thing. I prosecute cases. They bring them to me. I prosecute them, I investigate them. I'm not an intelligence-gatherer."
Although in 1997 the ten-year statute of limitations on Section 793 had run out on his disclosures in 1985 Lee, perhaps to avoid a more drastic espionage charge, agreed to plead guilty to violating the lesser statute by having "willfully communicated" to China "information relating to the national defense" and having done so "with reason to believe that the information could be used to the advantage of the People's Republic of China." He also pleaded guilty to making a false statement on his travel form about his contacts with foreign officials during his 1997 trip. On the two charges combined, which the government recommended run concurrently, Lee faced ten years in prison and a fine of $250,000.
Lee thus was pleading guilty to revealing information in 1985 about his work with lasers on inertial confinement fusion. There was no mention in the plea bargain of the data he had revealed in 1997 about detecting submarines by radar. The Navy had prevailed; there would be no trial and courtroom discussion about tracking subs.
The Navy, however, wanted to have it both ways. Two years later, as the draft of the Cox Report on Chinese espionage was circulating behind the scenes to government agencies, senior Navy officials became alarmed at what they had wrought. The Cox draft, as well as the published version, said that the information Lee disclosed on detecting subs underwater could enable China's military "to threaten previously invulnerable U.S. nuclear submarines."
It seemed a reasonable conclusion; if radar could be used to peer beneath the ocean waves to find subs, they would no longer be invulnerable. From the Navy's viewpoint, however, it would not do at all if the public thought that nuclear-armed submarines, one leg of the triad of America's nuclear deterrent, were no longer safe.
Stephen W. Preston, the Navy's general counse
l, wrote to Cox and Norm Dicks, the ranking Democrat on the committee, objecting to the language of the report. As Preston put it to the judiciary subcommittee, the Cox Report "had the potential of creating a widespread misperception that by virtue of Lee's disclosures the submarine force had been rendered vulnerable to adversaries."
As part of Lee's plea bargain, he had to agree to be debriefed by the FBI and answer all questions. In turn, the government said it would "recommend a short period of incarceration."
The deal was wrapped up by James D. Henderson, Lee's attorney, a former federal prosecutor in Los Angeles, and Shapiro. On the morning of March 26, 1998, Lee, Shapiro, and Henderson appeared before Judge Terry J. Hatter, in the federal district court in Los Angeles.
Henderson was at bat first. He did his best to try to persuade the judge not to send Lee to prison. "Not everybody needs to go to jail," he said. Lee, he argued, was "not the kind of person that belongs in a jail cell."
When Lee disclosed information in China, Henderson argued, he was in a teaching mode, just trying to aid other scientists and "was overcome by his desire to help them." It was just "a scientific thing." Lee's "ego got the best of him."
Shapiro wasn't buying it. "He lied," he said. "He compromised the security of projects he worked on.... Rather than serving the United States as he swore he would, he tried to help China." Shapiro said Lee had engaged in "a pattern of deception." In a dramatic flourish, the prosecutor displayed a hohlraum in court, linking it to "the design of nuclear weapons."
Finally it was Peter Lee's moment to speak. He admitted to an "egregious mistake" and added, "I got carried away with professional camaraderie.... I admit I violated a sacred oath not to discuss secrets. I am deeply sorry and regretful for my actions ... and I would like to beg for leniency. Please, your honor, don't put me in jail."
Hatter was skeptical of Lee's explanation that he got "carried away" in speaking to the Chinese scientists. "Well, let me stop you for a moment," the judge said. "It isn't just an activity of thirteen years ago, but there is the other count, the false statement much more recently."
