from the FAS Project on Government Secrecy
Volume 2003, Issue No. 47
June 2, 2003


The Justice Department Office of Professional Responsibility is refusing to release a new report on the Wen Ho Lee case despite earlier promises that it would be made public.

Wen Ho Lee was a Los Alamos scientist who became the object of frenzied allegations, uncritically reported in the press, that he had stolen the "crown jewels" of the U.S. nuclear weapons program and transferred them to China. Lee was indicted in December 1999 on 59 felony counts and held for nine months of pre-trial detention under particularly harsh conditions. In the end, the government was unable to sustain its nuclear espionage case, and Lee was convicted in September 2000 of one felony count involving computer security violations.

In an extraordinary turn of events, the judge hearing the case actually apologized to Lee and criticized the Justice Department and Energy Department officials who, he said, "have embarrassed our entire nation and each of us who is a citizen of it."

"Dr. Lee, I tell you with great sadness that I feel I was led astray last December by the Executive Branch of our government through its Department of Justice, by its Federal Bureau of Investigation and by its United States Attorney for the District of New Mexico, who held the office at that time," said Judge James A. Parker at a September 13, 2000 hearing.

In response to Judge Parker's rebuke and the larger controversy surrounding the case, the Justice Department initiated an investigation by its Office of Professional Responsibility (OPR).

The White House announced the OPR review at a September 22, 2000 press briefing and promised public accountability.

"The American public should look forward to an accounting there and I think that will be done," said White House press spokesman Joe Lockhart.

The OPR report on the Wen Ho Lee case was finally completed this year. But contrary to official promises, the Justice Department indicated there would be no public accounting.

In response to a request under the Freedom of Information Act from the Federation of American Scientists, Marlene W. Wahowiak, assistant counsel for freedom of information at the Justice Department, wrote on May 29 that "I have determined that this report should be withheld in its entirety." She cited FOIA exemptions involving national security, personal privacy and law enforcement records. The denial of the request will be appealed.


President Bush hailed the discovery in Iraq of trailer-mounted biological agent production facilities as concrete evidence of a clandestine Iraqi biological weapons program. But the closer one looks at the Central Intelligence Agency report on the mobile facilities, the more ambiguous the case appears.

In its report last week, the CIA said that the mobile plants could only be used for illicit production of biological weapons.

"We have investigated what other industrial processes may require such equipment -- a fermentor, refrigeration, and a gas capture system -- and agree with the experts that BW agent production is the only consistent, logical purpose for these vehicles," the CIA report said.

But this seems to be an overly hasty conclusion.

"Mobile pilot plant fermentation facilities are not uncommon," observed chemist George C. Smith. In fact, they have a sufficient number of conventional applications, he noted, that they are commercially marketed. One such mobile fermentor is described here:

The CIA report said the Iraqi plant design could be specifically identified as a banned weapons system because of its device for capturing exhaust gases: "The capability of the system to capture and compress exhaust gases produced during fermentation is not required for legitimate biological processes and strongly indicates attempts to conceal production activity."

But that's not necessarily so either, said Smith, a senior fellow at

Thus, a design for a mobile bioreactor that is used to decontaminate soil at the U.S. Department of Energy Savannah River site features an optional "noxious gas adsorber" that has nothing to do with biological weapons production. See the schematic diagram on this page:

"Perhaps the CIA analysts are correct when they claim the fermentors in Iraq are part of a biological weapons program," Dr. Smith said. But "a vapor trap is no smoking gun indicating the labs must be for bioweapons production."

Furthermore, "it is not that difficult to think of legitimate reasons for the generation and uses of microbial products in Iraq." He cited the production of Bacillus thuringiensis for pest control as one illustrative hypothesis.

In short, the CIA report does not conclusively prove the case that it asserts.

Nevertheless, President Bush said last week that the mobile production facilities were unambiguously intended for biological weapons.

"For those who say we haven't found the banned manufacturing devices or banned weapons, they're wrong. We found them," Bush said May 30, referring to the trailers.


In a remarkable reinterpretation of the legal framework governing the Central Intelligence Agency's relations with persons who have defected to the United States, a federal appeals panel of judges ruled last week that two purported defectors are entitled to sue the CIA for compensation allegedly owed them.

The CIA had contended that a civil war-era case known as Totten v. United States barred any such suit. The Totten doctrine, which lies near the root of the "state secrets" privilege, has previously been invoked to preclude litigation by espionage agents claiming breach of contract.

But the court found that the case should proceed, at least for now, notwithstanding Totten.

"We should not precipitously close the courthouse doors to colorable claims of the denial of constitutional rights," according to the May 29 ruling from the U.S. Court of Appeals for the Ninth Circuit.

A vigorous dissent from one member of the appeals panel argued that the court had no authority to reinterpret Totten. The 55 page ruling includes dense technical discussion on the laws of state secrets, with some quotable asides, such as:

"Although a district court must almost always defer to the government's evaluation of what constitutes a state secret and why, a district court cannot simply rubber stamp the government's conclusions."

A copy of the appeals court ruling in Doe v. Tenet, which was first reported in the Los Angeles Times on May 30, is posted here:


A report by the Department of Justice Inspector General on "The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the Septmber 11 Attacks" was released last week. A copy of the 239 page report, dated April 2003, is posted here:

See also this June 2 Justice Department press release:


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

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