FBI Director Louis Freeh got my attention when he tried to explain why the Department of Justice dropped 58 of 59 charges against suspected nuclear spy Wen Ho Lee. "The Department of Justice and the FBI stand by each and every one of the 59 counts in the indictment of Dr. Lee," Freeh told the Senate Judiciary and Select Intelligence committees. "Each of those counts could be proven in December 1999 [when Lee was indicted], and each of them could be proven today." Justice agreed to a deal of a guilty plea on one count (and a sentence of time served) to secure Lee's cooperation in locating the missing files he had stolen from the nation's top nuclear weapons lab. But the real reason for the cave-in was that the rules of a trial "posed serious obstacles to proving those facts without revealing nuclear secrets in open courts." It was that statement that got my attention.
These were the same words, almost verbatim, that a Harvard law professor had said to me in 1972. Not coincidentally, he was advising me on how to get away with violating the same U.S. espionage code that Lee had been accused of breaking.
The professor's name was Charles Nesson, and I was, at the time, one of the editors of Ramparts, the largest magazine of the New Left. I had called Nesson in Los Angeles, where he was serving as part of the defense team for Daniel Ellsberg, a Pentagon official who had copied a classified history of U.S. Vietnam policy (subsequently known as the "Pentagon Papers") and illegally delivered them to the New York Times. I had been delegated to make the call by my fellow editors to seek advice from a man who was one of the leading constitutional law experts in the country, because of a story we were about to publish.
The story had been brought unsolicited to us by a man who told us his name was "Winslow Peck." (This later was shown to be an alias.) He had come to the Ramparts office with a tale about a secret U.S. spy agency called the National Security Agency, which was tasked with all U.S. electronic intelligence operations. He himself had been an intelligence operative stationed in Turkey, but had become disaffected because of the Vietnam War. Now he wanted to reveal to the world -- including America's enemies -- the secrets to which he had been privy.
When we sat down with him, tape recorders running, "Peck" told us how the National Security Agency operated and what America's intelligence professionals knew. He gave us the code words that they used to describe their operations. (One of our staffers, Bob Fitch, who had served in intelligence in the 82nd Airborne Division during the Cuban missile crisis, was so shaken at recognizing these codes that he refused to work on the article. He was that sure he would be sent to jail.)
"Peck" told us many incredible things. He said he had listened in on the last-minute telephone conversation that Soviet premier Aleksei Kosygin had with a doomed cosmonaut whose rocket was not going to make it back to Earth. He told us he had intercepted the communications between the Israeli command center in Tel Aviv and Gen. Moshe Dayan that relieved Dayan of his post. He told us that the United States knew the name of every Russian pilot and the destination of every Russian airplane, around the clock.
But the real secret that "Peck" was revealing to us (which I did not even realize at the time) was the fact that U.S. intelligence had cracked the codes of both the Soviet Union and Israel, and was able to read all their electronic communications. This information would have been among the most guarded intelligence secrets of all. By making public to both ally and enemy that the U.S. had broken their codes, our informant was in fact alerting the intelligence agencies of both countries to change them. Thus the information "Peck" gave us was, or might have been (we had no way of knowing), a major blow to U.S. national security in the midst of the Vietnam War.
As New Leftists, my fellow editors and I may have been arrogant, irresponsible and reckless, but we were not crazy. We understood that we had skated onto dangerously thin ice, with consequences we could only dimly imagine, and we wanted to know as clearly as possible what we might be facing if we decided to publish the story that "Peck" had brought us. I was delegated by my fellow editors to put in a call to the Ellsberg defense team to see just what risks we might be taking. That is how I happened to be talking to Nesson. I have reported the conversation that took place in my autobiography, "Radical Son":
"After I had outlined the situation, Nesson explained the law. Technically, he said, we would be violating the Espionage Act. But, he added, the act had been written in such a way that it applied to classified papers removed from government offices, or material copied from government files. The government was able to indict Ellsberg because he had reproduced actual papers. It was important for us, in insulating ourselves from possible prosecution, not to acknowledge that any papers existed." If any did exist, he added, destroying them would be helpful.
I now cannot help asking myself whether this same calculation might have been behind Lee's destruction of 310 of the classified computer files he had illegally removed from the Los Alamos, N.M., lab after finding out that the FBI was on his tail.
But to continue my story:
"If we took his advice, Nesson suggested, we might get away with publishing [Peck's] article. To make its case in a court of law, the government would have to establish that we had indeed damaged national security. To do so, it would be necessary to reveal more than the government might want the other side to know. In fact, the legal process would certainly force more information to light than the government would want anybody to know. On balance, there was a good chance that we would not be prosecuted."
Reading my account of this incident, I am struck by the fact that Nesson's strategy (which columnist William Safire has called "graymail") of daring government prosecutors to go into open court and reveal their hand is precisely the reasoning that Freeh volunteered to the congressional committees to explain the prosecution's decision not to proceed with its case against Lee. To prove in a court of law that a defendant has endangered national security requires a prosecution to reveal far more information about a nation's national security systems than any government may want to reveal. In concluding my account of the conversation with Nesson in "Radical Son," I observed: "I had just been given advice by a famous constitutional law professor on how to commit treason and get away with it."
Is Lee guilty of treason? He illegally removed 400,000 files from the nation's top nuclear weapons lab during a period of years when he had repeated contacts with Chinese government scientists, and at a time when the Chinese Communist dictatorship was systematically stealing the secrets of America's most sophisticated nuclear arsenal. His response to the FBI investigation was that of a seemingly guilty man, as he destroyed files in his possession and repeatedly tried to break into the lab after his access was denied.
Yet Lee has acquired an almost martyrlike status as a victim of government persecution, even of government "racism." The presiding judge roundly condemned the ineptitude of Lee's prosecution and his "punitive" treatment, in particular the fact that he was held in solitary confinement for months and was threatened by his interrogators with the specter of the Rosenbergs, who were executed for a crime similar to the one of which he was accused. President Clinton has apologized for his own Justice Department's handling of the case. And the nation's editorial rooms have resounded with outrage at the entire affair.
Yet it is all very unconvincing. Begin with Clinton's peculiar apology (without explanation) for a prosecution he himself was responsible for. The U.S. attorney who handled the Lee case in the beginning, John Kelly, the attorney who sought the harsh restrictions on Lee, is Clinton's friend and former college buddy. Within a week of Clinton's apology, the president was in New Mexico to raise money for that same prosecutor's run for a state office. The argument of some of Lee's supporters that an anti-Chinese bias was behind an intemperate Justice Department prosecution is hard to square with the fact that the current deputy attorney general in charge of civil rights is Chinese himself.
Safire and others have suggested a more plausible explanation. The zealous pursuit of Lee followed the release of the bipartisan Cox Report detailing the theft of America's nuclear arsenal by the Chinese government. Much of this theft took place during Clinton's watch. Moreover, the Clinton administration had been aggressive in lifting security controls on satellite, missile and computer technologies, particularly those instrumental in developing nuclear-tipped ballistic weaponry, and it had even sold some of those technologies to the Chinese.
The Cox Report had come on the heels of investigations by congressional oversight committees into the unprecedented access given by the Clinton-Gore administration to Chinese military and intelligence officials and their agents, possibly in exchange for illegal contributions to the Democratic National Committee and the Clinton-Gore campaign. Sen. Fred Thompson, R-Tenn., had opened his hearings with the charge -- based on CIA testimony -- that the Chinese government had systematically set out to influence the presidential elections of 1996, which put Clinton and Gore in the White House. More than 100 witnesses called to testify about these facts took the Fifth Amendment or fled the country.
Finally, among the charges leveled was that the administration routinely authorized electronic surveillance of U.S. citizens (some 700 wiretaps were approved) but that the administration had turned down the FBI's request for a tap on Lee. In fact, this was virtually the only tap the Clinton Justice Department refused.
In sum, the zealous prosecution of Lee, according to this theory, took place only after a period of endless foot-dragging and dangerous laxity on security issues, followed by the sensational revelations of the Cox Report. At this juncture, Clinton's personal political interest dictated a vigorous effort to establish his vigilance, particularly in relation to the security threat from the Chinese. Only when his personal political jeopardy was over (for example, now) was he able to resume the posture of minimizing the problem itself.
The support for Lee and the view that he is an innocent victim of overzealous government security concerns are a familiar trope in American politics. The same attitude can be seen as a dominant feature of American liberalism in its approach to the Alger Hiss case over half a century, and even to the Rosenbergs. It is not insignificant that the Rosenbergs were actually the last spies executed in America.
Nesson, the law professor who counseled me on how to commit treason, is still a highly respected faculty member at Harvard and thus a legal lion of the establishment culture. In fact, the culture of Harvard is completely comfortable with Nesson, who has never, so far as I know, expressed regret for his subversive advice in the '60s. At the same time, the political culture of Harvard is completely uncomfortable with someone like me, who has expressed such regret.
This is not an anomaly in academia. The most prominent scholars to have used the newly opened Soviet archives to establish the guilt of Hiss, the Rosenbergs and other American spies are without exception conservative intellectuals, and they are shunned outsiders to the university culture. On the other hand, the most prominent scholars of American communism in that same culture are almost without exception apologists for American communism and partisans of the political left. The defining argument of their historical perspective, in fact, is to deny either treasonous activity or treasonous intent by actual Communist Party activists in the 1940s and '50s. These are but two indicators of a phenomenon that is well-known but rarely discussed.
A large swath of the American intelligentsia that is shaping opinion toward the Lee case is what is often euphemistically called the "adversarial" culture. It is a community that is indifferent at best to perceived American interests, including national security. Since World War II, this community has never been persuaded that America has enemies it does not deserve. The adversary culture can find a moral equivalency between American democracy and virtually any oppressive regime. I have a vivid memory of the late conductor Leonard Bernstein being interviewed on television during the election of 1988, which was one year before the fall of the Berlin Wall and a time when the Soviet dictatorship was still intact. Bernstein practically spit into a television news camera the following comment: "I infinitely prefer Mr. Gorbachev to Mr. Bush."
The adversarial culture assumes that America is so powerful as to be invulnerable to any foreign threat. Former Energy Secretary Hazel O'Leary's pronouncement at the outset of the Clinton administration typifies this attitude: O'Leary declassified 11 million pages of nuclear information, including the records of all American nuclear tests, saying that nuclear secrecy was part of a "bomb-building culture" that it was necessary to end. It would be ended, in her view, by sharing America's national secrets with everyone, and thus "leveling the playing field." This was precisely the attitude that inspired me and the other editors of Ramparts to divulge the secrets of America's electronic intelligence agency to the world. We viewed it as an effort to level the military playing field so that America would no longer be the superpower that was able to lord it over everyone else.
In retrospect, the most important lesson of my '60s encounter with a defector from our own intelligence service was the tolerance, sympathy and even support for treason that can be found in mainstream liberalism itself. Even though we thought of ourselves as radicals, the mainstream culture that we despised was so tolerant and even supportive of our radical postures that we were never prosecuted for the crime we had committed. Instead, we were given a kind of hero status for our "journalistic coup" in printing the revelations of "Winslow Peck." The New York Times gave our story front-page coverage.
It is obvious to me now that the adversarial attitude that inspired me in the '60s (and that I have since rejected) lies behind the sympathy for Lee and the preposterous belief that his activities were "innocent." This attitude is both typified and given ominous expression in the role played by an old comrade of mine who preceded me at Ramparts, and who later became a national correspondent and then a powerful columnist at the Los Angeles Times -- the very paper that led the attack on the Cox Report and also the defense of Lee.
There is perhaps no more outspoken champion of Lee in American journalism than L.A. Times pundit Robert Scheer, who has authored more than a dozen columns on Lee (including one filed from Albuquerque, where Lee was indicted and held). Scheer has even called Lee "an American Dreyfus," after the French Jew who was falsely accused by anti-Semites of treason in the 19th century: "In a case that parallels the frame-up of Alfred Dreyfus, a Jewish captain in the French army a century ago," Scheer wrote at the time of Lee's arrest, "the U.S. government is hellbent on destroying Wen Ho Lee, a naturalized American citizen and former Los Alamos nuclear weapons scientist ... In both cases, the 'foreignness' of the suspect was used by officials and the media to stoke fears of betrayal of the nation's security to a dangerous enemy."
The idea that the Clinton administration singled out Lee for ethnic persecution is laughable. The notion that Dreyfus and Lee are parallel cases is simply ludicrous.
Even before taking up Lee's cause, Scheer had led the attacks on the bipartisan Cox Report, released in the spring of 1999, which documented the theft of America's nuclear arsenal, including the miniaturized W-88 warhead suited for placement on cruise-type ballistic missiles. Attacking Cox, and the Democrats who supported him, as "fear-mongers" and national security hysterics, Scheer actually asserted that there were no nuclear secrets to begin with, so the Chinese couldn't have stolen them.
"The dirty secret of the nuclear weapons business is that there are no secrets," Scheer wrote in the Times on Aug. 3, 1999. "Nothing has happened since Hiroshima and Nagasaki to render these weapons any more plausibly useful as weapons. A crude nuclear weapon dropped from a propeller-driven plane or carried in a suitcase does the job of terrorizing civilian populations -- the only function of nuclear weapons -- as effectively as the modernized warheads, whose technology some claim Beijing has stolen."
The statement betrays an astounding ignorance of modern nuclear strategy for a columnist at the Los Angeles Times. But as though even this howling claim was not sufficient to make Scheer's point, he also invoked O'Leary's "level playing field." Whatever weapons the Chinese Communist dictatorship did not already have, Scheer wrote, the United States should provide to it, in the interests of peace! "It would be in our national security interest to supply the Chinese with a Trident-class sub that works, as opposed to their lone sub contender that leaks radiation so badly that it isn't operational. And, heresy of heresies, we should give the Chinese some submarine-suitable missiles armed with the miniaturized W-88 warhead that they are supposed to have stolen. That way, even if they thought a nuclear weapon was en route to them, they would not have to instantly respond, being secure in the knowledge that they possessed survivable retaliatory power."
Where do such bizarre, alienated and delusional attitudes come from? As I have already mentioned, Scheer preceded me as the editor of the radical-left magazine Ramparts. In fact, my co-editors and I fired him in 1969, less than three years before we published the revelations of national security agent "Peck." Although our firing of Scheer was not political, it turned out that he subsequently veered farther to the left than any of us were ever tempted to go.
Unlike me and others who have had second thoughts (but just like Nesson), Scheer has never had second thoughts. He has probably changed some of the beliefs he held in the '60s and has probably reconsidered some of the actions he took. But he has never repudiated them, never acknowledged how wrong he had been and never relinquished the adversarial attitudes that led him astray in the first place. That is the real national security problem that the latest turn in the Wen Ho Lee case reveals.
Shares