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Congress clarifies spy warrant legislation

No more Wen-Ho Lees, Senators hope

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Internet Security Threat Report 2014

US Attorney General Janet Reno's failure to consider an FBI request for surveillance of Los Alamos nuclear scientist Wen-Ho Lee may well jeopardise his prosecution, and has moved Congress to amend the Foreign Intelligence Surveillance Act (FISA) of 1978. Lee, who moved highly classified data concerning the design and testing of US nuclear weapons to an insecure computer, is suspected of giving nuclear secrets to China. Whether he is guilty or not, the prosecution is in tatters because of a communications and process fiasco involving the FBI, the Department of Justice (DoJ) and the Department of Energy (DoE), which is responsible for security at the Los Alamos facility. The Senate Judiciary Subcommittee on Administrative Oversight convened Tuesday to consider what went wrong in the Lee case, and what might be done to prevent future fiascoes of its type. As things stand now, if Lee is guilty, he may never be prosecuted successfully and brought to justice; if he is innocent, his reputation has already been ruined by speculation. At issue is a request by FBI Director Louis Freeh in June 1997 to seek a warrant under FISA to watch Lee and gather evidence secretly. He sent the request directly to Reno, but it mysteriously ended up in the hands of an inexperienced underling who rejected it. It is normal for the Attorney General to handle such requests. Reno's motivation in passing on this particular one may well be connected to political pressure, or expected political pressure, from the White House, which obsessively promotes any and all measures to accommodate China regardless of consequence. Reno may have smelt an embarrassment for China looming in the Lee case, anticipated President Clinton's inevitable displeasure with it, and sought refuge in a bit of deniability. Committee Chairman Arlen Specter (Republican, Pennsylvania) would like to eliminate such convenient head-in-the-sand dodges, and proposes to amend the act to require the Attorney General to reply in writing whenever a request to seek a FISA warrant is submitted to DoJ. The FBI Director, the CIA Director, the Secretary of State and the Secretary of Defence are the only members of government permitted to make a FISA warrant request. It is a serious step which certainly deserves to receive the Attorney General's personal attention; and, except in the curious case of Wen-Ho Lee, it always has. A further proposed amendment would clarify the difference between seeking a FISA warrant and seeking an arrest warrant, where evidence of present criminal activity must exist. A FISA warrant, by contrast, is based on the likelihood that a person might divert sensitive information to a foreign government. Present criminal activity need not be evident. Regardless of why an inexperienced DoJ reviewer ended up receiving the Lee case -- and we certainly have our suspicions -- it is believed that he chose not to seek a FISA warrant because he mistakenly looked for evidence of present criminal activity, as one would normally do if an arrest warrant were being sought. Both FBI Director Louis Freeh and DoJ Intelligence and Policy reviewer Frances Townsend agreed that Specter's proposed amendments would be appropriate. As for Reno, she will be called into the hot seat later this month, at which time she will have adequate opportunity to explain her actions to the Committee, and the nation. ®

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