JANET RENO FACED A DILEMMA in August 1997. A senior FBI official named John Lewis informed her that her Office of Intelligence Policy and Review had rejected three FBI requests to tap the phone and computer of a government scientist accused of nuclear espionage. Reno knew little about the case, but given the FBI’s persistence and her respect for Lewis, she agreed the request merited further review.
This time, she referred it to a Justice Department national security office, which, if it deemed the matter worthy, would forward it to a panel of judges for a final decision. In 1996, this panel had approved every one of the 839 warrant requests it had received from Justice.
The matter landed in the lap of Daniel Seikaly, a former assistant U.S. attorney. Seikaly read the requests, as well as the statute governing such matters, and ruled against the FBI. This wouldn’t be attracting any attention, except for two facts that came out later. First, the request for a warrant was aimed at Wen Ho Lee, who now stands accused of masterminding the greatest theft of U.S. nuclear secrets in history. And second, under private questioning from senators on May 20, Seikaly acknowledged that the Lee case was the first and last warrant request he ever ruled on.
Reno is now under pressure to explain her department’s obstinacy. The chairman of the Senate Intelligence Committe has said she should resign, a Democratic senator has said almost as much, and there’s been criticism from both parties of Justice’s decision not to put the warrant request before the judges. Through it all, Reno maintains that while the matter “should have been brought to my attention . . . the decision [to deny the warrant] was correct.”
Will this latest controversy be the straw that breaks Reno? Washington was buzzing last week that the White House wanted to offer up her scalp so as to protect that of Sandy Berger, the national security adviser whose actions in the espionage case are even more suspicious. But at the end of the week, Reno announced she’d spoken to Charles Ruff, the White House counsel, who told her she had the White House’s confidence. It was beginning to look like she’d survive.
She may wish she hadn’t. As Congress investigates the espionage, there’s sure to be a laser beam on Reno, with people asking whether aides kept her in the dark about the spying probe or she remained willfully ignorant. Either way, much will be made of the fact that Justice was denying the warrant at the very time Congress was investigating Bill Clinton’s use of Chinese money in the 1996 presidential campaign and Republicans were agitating for the appointment of an independent counsel.
Reno’s May 27 briefing with reporters may have been a sign of things to come. Sixty-four questions were asked, and 63 of them related to Justice’s handling of the espionage.
With good reason. Justice’s actions under Reno won’t be easy to defend. The Cox report, for example, describes how the department stymied congressional investigators’ efforts to obtain information about the transfer of sensitive technology to China by companies like Loral and Hughes. At a May 26 Senate hearing, Christopher Cox, chairman of the select committe looking into the issue, said Justice officials “took the view they could interpose themselves between us and all the other parts of the executive branch.” Even Norm Dicks, the committee’s senior Democrat, admitted at the hearing. “We got very good cooperation overall, and the Justice Department was the one area where we had some difficulty.”
One explanation for this resistance is that Justice didn’t want its bungling of the espionage investigation to be revealed. Consider:
In 1996, officials of the Los Alamos labs, where Lee worked, wanted to search his computer for classified files. Lee had already signed a waiver allowing the government to “audit or access” his computer at any time without his knowledge. But according to John Browne, the director at Los Alamos, Justice officials told lab officials they should back off, as any information gathered wouldn’t be admissible in court. The lab complied.
Justice’s denial of repeated FBI warrant requests in 1997 rested on equally dubious reasoning. Even though Lee had been identified to the department as a prime suspect in a criminal espionage investigation one year earlier and his classified computer privileges had been revoked, Justice’s Office of Intelligence Policy and Review still decided not to ask the judicial panel to consider the FBI’s warrant request.
Fast forward to February 1999. The FBI, though still without a warrant, was able to administer a polygraph on Lee. He didn’t perform well, and according to the New York Times, he deleted as many as 2,000 files from his computer two days later. In March, FBI officials resorted to simply asking Lee if they could search his computer. Aware by now he was a target of the espionage investigation, Lee agreed to the search. It didn’t take the FBI long to find material transferred from classified files and to recreate the deleted files. On March 8, Lee was fired.
What followed raised even more questions about Justice’s judgement. FBI agents wanted to search Lee’s home, but Justice still refused to provide a warrant. So while the file transfers were confirmed in March, the FBI didn’t win permission to search Lee’s home until April 10.
“This is her Waco in the counterinteligence area,” says a former Clinton Justice official, adding that espionage has never been a Reno priority. “She distanced herself from the issue and delegated to the wrong people.” Indeed, the current head of Justice’s Office of Intelligency Policy and Review, Frances Fragos Townsend, is viewed within the department as a Reno crony who’s light on substance.
What is painfully obvious is that in the investigation of Lee, Justice operated from a flawed position. As Victoria Toensing, a former chief counsel to the Senate Intelligence Committe, points out, the investigation “was treated as a criminal matter in which the goal was convicting someone, when it should have been treated as a national security matter in which the goal was protecting America’s nuclear secrets.”
This is but one of many issues Reno will be asked about in coming weeks. In the meantime, her suggestion last week that Louis Freeh, the FBI director, should have personally brought the warrant requests to her attention signals she’s not prepared to shoulder all the blame. She’s also formed a task force to provide an “administrative” review of the decision-making process that led to the denial of the warrants. The question, she says, is whether “everything was done right.” Some, however, would regard it as more urgent to know why the wrong decision was made.
Matthew Rees is a staff writer at THE WEEKLY STANDARD.
