Gov't Honors Plea Agreement with "non-cooperative" Spy for China

Feds Made Premature Plea Deal with Peter Lee

USA TODAY - May 21 2000

Justice4JP Prefacing Note:

Chinese-American spy, Peter Lee, was "deceptive" and "non-coperative" during his debriefing by the US Justice Department. Even though Lee did not cooperate and he failed a polygraph test - indicating that he did not fully disclose information as he was required to under the terms of his plea agreement, the US Government nevertheless honored the plea agreement. Lee was ultimately found to have "directly enhanced Beijing's weapons program", but received no prison time. Compare and contrast the treatment of Peter Lee to that of Jonathan Pollard.

Pollard, unlike Lee, cooperated fully with the Justice Department and successfully underwent 9 months of intensive polygraph testing. [SEE legal text: Extent and Value of Cooperation. In spite of Pollard"s cooperation, the Government violated the plea agreement it signed with Pollard and gave him an unprecedented life sentence.

The documents, gathered by Senate investigators, detail weeks of miscommunication between prosecutors, defense officials and the FBI that led up to the December 1997 plea bargain for former U.S. nuclear labs scientist Peter H. Lee.

The miscommunication left the Justice Department official with final authority for the case unaware that his prosecutor would seek minimal prison time for Lee. As it turned out, the judge gave Lee no prison time even though he was informed Lee had been deceptive in his cooperation.

"Had this been our opening position in plea negotiations, I doubt that I would have approved it, particularly the short period of incarceration," Deputy Assistant Attorney General John Keeney told a Senate Judiciary subcommittee recently.

Lee's case has fallen in the shadows of the Wen Ho Lee spy case at the Los Alamos lab that dominated headlines for months.

But testimony, government documents, and a draft Senate report reviewed by The Associated Press detail missteps by the government that mirror those that already criticized in Wen Ho Lee's case.

The problems included the unexpected appearance of a Navy memo that raised questions about the quality of Peter Lee's case and would have been available to defense lawyers at trial.

"As our prior testimony reflected, the conclusions drawn by this draft report are contrary to fact," said Justice Department spokesman Myron Marlin. "The government secured two felony convictions in a difficult case. It was a case where questions were raised by the Defense Department and government scientists about the classification of information disclosed and concerns were raised about national security disclosures that might result from trial."

Law enforcement officials say they wanted to avoid a trial to protect sensitive counterintelligence information that would have divulged some of the methods and sources used to detect Lee's activities for China.

Instead, officials sought to press Lee into a plea bargain, secure his cooperation, put him in prison for a short time and hope he would help on other China espionage matters, officials said.

The plan backfired, however, when Lee was found to be deceptive during his cooperation. Prosecutors also were surprised by the judge's leniency.

There were other complications.

Prosecutors decided not to wait for an analysis of how much Lee damaged national security and proceeded with the plea bargain just weeks after obtaining his confession.

Michael Liebman, a prosecutor, told senators he thought it was "impractical" to wait for a damage assessment because he believed it would take a year to complete.

But within two months, the Energy Department had completed an impact analysis of Lee's disclosures.

Lee's classified information "was of significant material assistance to the PRC in their nuclear weapons development program," the department concluded in February 1998.

"This analysis indicates that Dr. Lee's activities have directly enhanced the PRC nuclear weapons program to the detriment of U.S. national security," the memo stated.

PRC is the People's Republic of China.

Sen. Arlen Specter, R-Pa., who led the Senate's review, sharply criticized the rush to the plea bargain.

"That was just atrocious," Specter said. "I think it was indifference to the severity of the issue and a traditional interest in chalking up a conviction, which is meaningless when there is no substantial jail time as warranted by the infraction."

Specter's draft report concludes prosecutors should have brought more severe espionage charges against Lee, or at least tried to break the plea bargain when he did not fully cooperate.

Justice officials counter that to do so would have forced them to disclose the sensitive counterintelligence they wanted protected.

Lee worked at the Energy Department's Lawrence Livermore and Los Alamos nuclear labs and was a federal contractor for more than two decades.

In October 1997, he admitted to the FBI he shared classified information with Chinese nuclear scientists both in 1985 and 1997 - some of it involving a secret $100 million joint U.S.-British project on radar detection of nuclear submarines.

Since the plea bargain, which required Lee's cooperation, the scientist failed an FBI lie detector test and left U.S. officials convinced he has not disclosed the full extent of his activities for China, a draft Senate report states.

There were other miscommunications, the report shows.

Prosecutors did not give defense officials a copy of Lee's videotaped confession, instead providing them a more limited affidavit. As a result, Navy officials were confused about whether the information Lee shared with China was in 1997 was classified. Defense officials knew about the tape, but did not ask for it.

The latter miscommunication resulted in what Justice officials called a "body blow" to their case. A month after Lee's confession, the Navy produced a memo suggesting it was not worth prosecuting Lee for disclosing information about the submarine project.

"It is difficult to make the case that significant damage has occurred," the Nov. 14, 1997, Navy memo stated, citing questions about whether the information passed to China was unclassified, confidential or secret.

Prosecutors were stung by the memo, and worried Lee's lawyers would use it to create doubt with jurors. Earlier this year, defense officials finally watched Lee's confession video and concluded the information he passed the Chinese was indeed classified.

There also was confusion about whether Lee could have been charged with espionage instead of the lesser charges of attempting to communicate national defense information and making false statements.

Liebman said he did not think he could prove an espionage charge even though the information Lee admitted giving to China in 1985 was classified as secret. By the time the case emerged, some of the information had been declassified, he noted. Another prosecutor said he was told to accept the lesser charge "or nothing."

But memos show FBI and Defense officials expected Lee to be charged with the "heftier charge" if the deal fell through.

Senate investigators also cite a failure to renew an electronic surveillance warrant in fall 1997 that would have allowed the FBI to gather more information about Lee's contacts.

Law enforcement officials question whether their information was too stale, whether it was worth renewing the warrant because Lee had recently discovered an FBI bug and whether they were legally allowed to obtain a warrant when the case became overtly criminal.

But Specter disclosed the FBI intercepted an incriminating e-mail in August 1997 - after Lee had found the bug - and said that provided ample reason for renewal. "The loss of electronic surveillance on Dr. Lee occurred at a critical juncture that may have seriously hampered the government's ability to collect counterintelligence information," his draft states.