Over the next couple of days we can expect to be bombarded with the claim that the FISA probable cause standard was too high to get a warrant in the Wen Ho Lee Los Alomos nuclear secrets leak investigation. This claim is made
HERE in a Weekly Standard article by American Enterprise Institute fellow Gary Schmitt.
Schmitt's account is woefully incomplete, however. The facts, recounted
HERE in the findings of the Senate Government Affairs Committee, paint a very different picture of an investigation bungled by the FBI.
First, the FBI probably would not have needed a FISC order in the fist place had they followed up on a waiver signed by Lee in 1995:
Craig's failure to supply the FBI with accurate information was critical. It is still unclear whether Lee's computer waiver actually would have permitted the FBI searches desired. This said, however, if the Bureau had known of the 1995 waiver, it might have been possible to access Lee's computer much earlier. In turn, had investigators thus discovered the classified file transfers that Lee was actually undertaking with his computer, there would likely have been little dispute with the Department of Justice over the existence of probable cause for FISA surveillance of the Lees.
Second, FISC never received a request. Efforts by agents to get a FISC order were rejected by the DoJ's Office of Intelligence Policy and Review because of FBI agents' failure to persue leads in the case, not because they considered the FISA standard of probable cause to be too high:
Most importantly, however, OIPR viewed the FBI's case as being flawed from the outset, and "the central reason" for that, OIPR Attorney Allan Kornblum explained, "had to do with the fact that the DOE and Bureau had [multiple] suspects, and only two were investigated. That is the principal flaw which ha[d] repercussions like dominoes throughout all of the other probable cause." There being no evidence directly linking the Lees to the compromise of the W-88 warhead, the FBI's case for probable cause rested upon the Lees standing out amongst the other potential suspects. At least some of the other suspects, however, also had access to the information and had traveled to China, and many of them shared some of the additional elements put forward by the FBI in its probable cause showing: they all worked at LANL and had access to information desired by Beijing, a number were ethnic Chinese, some presumably had contact with visiting Chinese delegations, and the elements related to PRC intelligence tradecraft applied to many of them as potential targets of Chinese espionage. In OIPR's view, the failure of DOE and FBI investigators to look into the other suspects who satisfied the matrix criteria -- that is, to assess whether these others were not for some reason equally suspicious -- meant that it was impossible to be sure that the Lees really did stand out as the prime suspects.
The record on the Lee case actually indicates that a FISC order could have been octained by meeting a pretty low threshold. Agents merely had to show that Lee stood out from other suspects and didn't have to give evidence "directly linking," in the words of Governmental Affairs Committee Chair Fred Thompson (R-TN) and ranking Monority member Joe Lieberman (D-CT), Lee to the lost information.
I'll not get into the details rest of the story (you can read it yourself), but lack of follow-through on the part of the FBI is a recurring theme. For example, the FBI failed to follow-up with OIPR when new information surfaced in 1998 that might have supported a FISC order. The Thompson-Lieberman statement bears out that it wasn't high standards that stood in the way of the Lee investigation, but rather agents that failed to follow up on key aspects of the investigation, from the Lee waiver signed in 95 to the suspects that were not investigated to failure to follow up with OIPR.