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How Not to Combat Chinese Espionage

July 04, 1999|Steven Aftergood | Steven Aftergood is director of the Project on Government Secrecy at the Federation of American Scientists

WASHINGTON — The controversy over Chinese espionage at U.S. nuclear labs has largely receded, but exactly who did what to whom, and whether or how much it matters, remains unsettled. The lack of clarity, however, has not impeded the advancement of several "reforms" to close security holes. Unfortunately, some of these solutions will create more problems than they solve.

Despite millions of dollars spent on multiple independent investigations, there is a remarkable absence of consensus concerning the significance of Chinese espionage over the last two decades. China stole "the crown jewels of our nuclear arsenal," proclaimed Rep. Christopher Cox (R-Newport Beach), chairman of a select committee that issued a three-volume report on the subject in May. The situation "confirms my worst fears," said Sen. Richard C. Shelby (R-Ala.), chairman of the Senate Intelligence Committee.

Yet, a panel convened by the Central Intelligence Agency, and chaired by retired Adm. David Jeremiah, reported that "We do not know whether any weapon-design documentation or blueprints were acquired." While espionage did occur, the panel added, "the aggressive Chinese collection effort has not resulted in any apparent modernization of their deployed strategic force or any new nuclear-weapons deployment." A report by the president's Foreign Intelligence Advisory Board concurred, noting that "The classified and unclassified evidence available to the panel, while pointing out systemic security vulnerabilities, fall short of being conclusive."

Still, the investigations have had some salutary effects. For one, they have concentrated policymakers' attention on the distinctly unglamorous field of counterintelligence, resulting in the development of a more effective organizational structure and the prompt correction of some evident security flaws. They also have given a public voice to some internal critics whose views had been muffled by bureaucrats.

But the confusion and innuendo swirling around Chinese espionage have engendered some extraordinarily ill-considered proposals that could infringe upon the constitutional rights of Americans, divert security resources into a mindless spy hunt and leave government increasingly unaccountable to its citizens.

After the New York Times reported that Los Alamos scientist Wen Ho Lee had committed security infractions involving the transfer of classified information to an unclassified computer system, a strong presumption was created in the media and elsewhere that Lee was, in fact, a spy. Never mind that he was cooperating with the FBI and that he had not been arrested or indicted on any charge.

Why, some congressional critics wondered, had the Department of Justice refused to forward an application, under the Foreign Intelligence Surveillance Act (FISA), for a wiretap on Lee or a physical search of his home and office? The Justice Department's explanation--that it had no "probable cause" to violate Lee's constitutional rights--was brushed aside in a disturbingly cavalier way.

In the past, the 1978 surveillance act had been criticized for making it too easy for government agencies to violate the privacy rights of Americans. Specifically, critics pointed to the seemingly automatic approval of applications--796 in 1998--for clandestine search and surveillance. But with the media's virtual "conviction" of Lee, the dominant criticism today is that the law makes it too difficult to spy on Americans suspected of espionage.

Accordingly, pressure is building in Congress to modify the law to make wiretaps easier to obtain. "With the passage of more than 20 years since the enactment of the [FISA], it may no longer be adequate to address the counterintelligence threats of the new millennium," the president's Foreign Intelligence Advisory Board suggested. Inflamed by the media coverage of the Lee case, some would diminish one of the last fragile checks against arbitrary government search and surveillance.

One predictable response to the espionage scandal is an expanded polygraph testing program. The Department of Energy recently announced that 5,000 scientists and others will be subjected to a polygraph as part of an upgraded security program at national laboratories.

As a matter of security policy, this is a questionable allocation of resources since none of the affected employees is likely to be a spy. (A 1993 Department of Energy contractor study estimated, somewhat fancifully, that only one of every 100,000 U.S. citizens who hold security clearances is a foreign spy.)

But an expanded polygraph program will be worse than simply useless because the new tests will inevitably generate "false positives," necessitating intensive but pointless security investigations, derailing careers and creating a work environment increasingly inhospitable to the scientific and technological innovation that supports national security.

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