Justice may yet prevail for Wen Ho Lee. After spending eight months in solitary confinement for allegedly mishandling classified information, the former Los Alamos laboratory scientist has been tentatively granted bail. While Lee's case still awaits a November trial, he has raised disturbing allegations that the government uses a racial profile when investigating espionage.
The legal standards for pursuing a racial profile claim are difficult to meet. Yet this week, U.S. District Court Judge James A. Parker ordered the government to turn over documents that are related to Lee's allegations of selective prosecution. Parker is right to scrutinize the government's actions. Its own investigators have provided the strongest evidence that Lee is a victim of racial profiling.
Contrary to initial sensationalized reports about his being a "Chinese spy," Lee, 60, hasn't been charged with espionage, and government prosecutors admit they have no evidence Lee provided secrets to foreign countries. Yet their aggressive pursuit of Lee has led to charges of misconduct. The recent bail hearings revealed the government used deception to persuade Parker to previously deny bail for Lee. Even more disturbing are charges that the government routinely singled out Asian Americans, including Lee, in espionage investigations.
The former chief counterintelligence officer at Los Alamos has stated that "ethnic Chinese" laboratory employees were singled out in a joint FBI and Department of Energy investigation aimed at identifying possible spies for China. Robert Vrooman has submitted a sworn affidavit declaring "that racial profiling was a crucial component in the FBI's identifying Lee as a suspect." Others have been open in admitting their bias. Notra Trulock, a former senior Energy Department official responsible for counterintelligence, has said ethnic Chinese shouldn't be allowed to work on classified projects, Lee's attorney said in court.
Former FBI deputy director Paul Moore confirmed on national television that the government's use of racial profiling isn't limited to Lee. In explaining how the FBI investigates espionage, Moore stated, "The FBI . . . applies a profile; so do other agencies who do counterintelligence investigations." Moore justified this practice on grounds that foreign countries tend to target ethnic Americans with ancestry ties.
Confronted with Moore's statements in court, Lee's prosecutors have continued to argue that federal law enforcement agencies should be allowed to consider race as a factor in identifying espionage suspects. Their rationale is that China seeks to recruit spies among Chinese Americans.
But even that's true, we shouldn't allow foreign governments by their unilateral actions to deprive American citizens of their civil rights. Otherwise, every "ethnic" American becomes a potential spy suspect. At the moment, China is perceived as an espionage threat, but this rationalization could justify racial profiling against any number of ethnic groups in the future.
The government has also failed to provide any proof that Chinese Americans are more likely to spy for China. When pressed, counterintelligence officials cannot cite any studies, statistics or examples, leaving the impression that their practice may be based on a racial stereotype. Furthermore, Lee's case illustrates that law enforcement based on racial profiling is also ineffective. The targeting of Chinese Americans led to the neglect of other leads. If there is a "Chinese" spy, he is still at large whatever his ethnicity.
The Clinton administration, to its credit, has taken a strong stand against racial profiling in other contexts, especially in opposing the selective prosecution of African-American motorists for "driving while black." It shouldn't carve out an exception for espionage cases. Rather than continuing to defend the FBI and Energy Department practices that led to Lee's indictment, the administration should acknowledge the mistakes that were made and make a strong statement that racial profiling by federal agencies won't be tolerated.
Theodore Hsien Wang is policy director of Chinese for Affirmative Action in San Francisco. Frank H. Wu is an associate professor of law at Howard University.