SECRECY NEWS
from the FAS Project on Government Secrecy
August 15, 2001

BELLOWS REPORT FAULTS DOE, FBI

The Justice Department on Monday released two heavily censored chapters of the so-called "Bellows Report" on the investigation of alleged Chinese nuclear espionage at Los Alamos National Laboratory that purported to identify Wen Ho Lee as a suspected spy.

The report, authored by federal prosecutor Randy Bellows and submitted to Attorney General Reno in May 2000, is a case study in how not to conduct a counterintelligence investigation.

It describes, step by step, how initial indications of possible Chinese espionage led to a misdirected spy hunt that wasted "years investigating the wrong crime" (page 236).

The report found that DOE officials set things off on the wrong foot by mischaracterizing the alleged compromise of nuclear information, and then the FBI made them worse.

"To say that DOE misled the FBI as to the predicate, and to say that DOE improperly focused its conclusion only on Wen Ho Lee, is only to describe half the problem. The other half was the FBI's unfortunate and unwarranted acceptance of DOE's description of the predicate, and its unhesitating and unquestioning acceptance of DOE's identification of Lee as 'the most logical suspect'." (page 380)

"It is not that Wen Ho Lee should not have been *a* suspect. It was that Wen Ho Lee should not have been the *only* suspect. After all, the case against Wen Ho Lee could hardly be termed overwhelming" (page 376).

The Bellows report, which is generally scrupulous in its assessments, seems weak in its discussion of allegations of racial bias against Lee (pp. 381-88). Bellows does not appear to have interviewed those who have made such allegations, responding instead to second-hand reports in the press. If the accusers had any evidence to support their claims, Bellows apparently did not obtain it.

The scope of Bellows' inquiry is limited to the early investigative phase of the Lee case, ending in March 1999, when Wen Ho Lee was fired from Los Alamos. It does not encompass the decision to prosecute him nine months later, the manner of his confinement, or the government's conduct of his prosecution -- all matters of continuing controversy.

The full (declassified) text of Chapter 7 of the Bellows Report is posted here:

Excerpts from Chapter 6, which was censored to the point that portions of the remaining text are unintelligible, are posted here:

"IT'S NOT AN OFFICIAL SECRETS ACT"

One estimable reader objected to Secrecy News' (8/10/01) use of the term "official secrets act" to refer to the proposed legislation to criminalize unauthorized disclosures of classified information. Such legislation was vetoed last year by President Clinton and is again under consideration by the Senate Select Committee on Intelligence.

"The reference to an 'Official Secrets Act' clearly alludes to the long-time UK law that, in part, makes it a crime for anyone, including a journalist, to publish classified information," the reader wrote.

In contrast, he noted, "The legislation that President Clinton vetoed last year clearly could not be used to prosecute the uncleared receiver of classified information (such as a journalist). The legislation only targeted the cleared holder of classified information who, without authority, deliberately discloses such information to someone who is not authorized to have access to it. Even then, the legislation and other provisions of law provide safeguards and mechanisms for whistleblowers when it is believed that the information reveals violations of law, waste, fraud or abuse."

"Prosecuting someone who deliberately violates his/her agreed upon trust to safeguard classified information is a far cry from prosecuting journalists," the reader argued sensibly.

"Finally, we cannot legitimately purport to support the broadest possible implementation of declassification if we are unwilling to support the safeguarding of information that is still classified under existing provisions of law," he wrote.

But classified information can be, and long has been, effectively safeguarded without making any and all leaks a felony.

The "anti-leak" legislation was defeated last year not because of opposition to protecting classified information. Rather, opponents argued successfully that the measure would have a chilling effect on legitimate interactions between government officials and members of the public; that it would hinder diplomats and press officers in the performance of their duties; and that the executive branch's classification system should not be indiscriminately fortified with a felony statute.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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