Dr. Lee was convicted, of course, but not of espionage — in fact, he was never even charged with espionage, and the 59-count indictment for allegedly downloading the "crown jewels" of U.S. nuclear secrets with the intention to share these with a foreign power was reduced, in the plea agreement, to single felony count of mishandling classified information. Still, his case is unlikely to get much attention this election season, and not only because President Clinton has preemptively joined the ranks of government critics.
Embarrassing Failure
To be sure, there are many loose ends and unexplained factors in Lee's case, such as the fate of the seven missing tapes and his motivations for allegedly refusing to cooperate with investigators last year. But it's also plain, now, that the pursuit of Lee, which began in a climate of political hysteria over allegations of Chinese nuclear espionage, has been an embarrassing failure for a government that appears to have been forced to accept a plea agreement to avoid further humiliation. After all, the deal came days before the deadline on which the government would have been forced to hand over thousand of pages of documents explaining why Lee had been arrested. And in his ire, the judge expressed regret Wednesday that the government hadn't been forced to account for itself in this way.
Judge Parker's anger is surely understandable, given that the government had convinced him it was essential to keep Lee in solitary confinement to avoid endangering hundreds of thousands of American lives, and then had simply walked away from its case once the scientist signed an agreement to cooperate with investigators.
Still, while Judge Parker may be a widely respected Reagan appointee, his charges against the government are unlikely to get either the Bush campaign or the media up in arms. After all, for much of the last year, many Republicans have attacked the government for ineptitude in failing to prove Lee guilty of espionage, while the national media conducted its own tribunal last spring, in which most national media outlets solemnly reported at face value off-the-record testimony by unnamed security officials — testimony the government never dared test in court — which painted a damning picture of Lee. The views of the guardians of the nation's security obviously carry great authority when reported in publications of record, creating the impression that it was a "known" fact in the corridors of power that the Los Alamos scientist had handed over the crown jewels of U.S. nuclear secrets to China — treachery on a scale comparable to that of Julius and Ethel Rosenberg, they said — even if the sources of this information were also warning that the government might not be able to make the espionage charges stick.
A Rush to Publish
It's easy to say, in retrospect, that the admission that the authorities lacked the evidence to convict should have served as an alarm bell to editors, but the rush to publish — and the implication by the guardians of the nation's security that the national interest had been imperiled — may have drowned those out. So the net effect of the initial reporting of the case throughout the national press was to create a separate media courtroom in which hooded accusers were free to damn Lee without fear, even, of rigorous cross-examination.
Now that the government has surrendered almost all its case against Lee, having been forced along the way to drop many of its most basic claims — the "crown jewels" claim, for example, looks more than a little alarmist when viewed in the light of the fact that, as Lee's attorneys pointed out, the data he downloaded was classified "restricted" rather than "secret" — it's worth examining how the media deals with off-the-record information from highly placed sources who demand to remain anonymous.
"Leaks" and off-the-record briefings are almost always deliberate attempts to use the media to the advantage of those releasing the information. And that requires that journalists and editors maintain a healthy skepticism of whatever is gleaned from such sources, always assessing the motive for its release. Of course, such sources are the very lifeblood of the profession, but serving the public means that there is a need to filter and question, even when the intimidating notion of "national interest" is brought to bear.
It's So Soviet
As Harvard law professor Alan Dershowitz noted on Sunday, the resolution of the Wen Ho Lee case leaves leaves little cause for satisfaction. "This case stinks," said Dershowitz. "And the resolution doesn't make it smell any better. It only makes the contestants happy, but it shouldn't make the public happy." After all, he argues, if Lee was guilty of the original charges, then he shouldn't have been released, but if he's guilty only of the felony cited in the plea agreement, then he should never have been denied bail in the first place — in other words, Dershowitz accused the Justice Department of denying Lee bail as a means of pressuring him into a guilty plea.
"If he pleaded innocent, he had to remain in jail, but if he pleads guilty, he gets out of jail — it's so Soviet," said Dershowitz. "It's un-American."
Many months later, it turns out that the media, collectively, may have allowed itself to be as badly misled as Judge Parker was by the FBI agent who later admitted playing fast and loose with the truth. Unlike Judge Parker, we ought to know better.