<DOC>
[106th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:62262.wais]
RETALIATION AT THE DEPARTMENTS OF DEFENSE AND ENERGY: DO ADVOCATES OF
TIGHTER SECURITY FOR U.S. TECHNOLOGY FACE INTIMIDATION?
=======================================================================
HEARING
before the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
JUNE 24, 1999
__________
Serial No. 106-74
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.house.gov/reform
__________
U.S. GOVERNMENT PRINTING OFFICE
62-262 WASHINGTON : 2000
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
JOHN T. DOOLITTLE, California (Independent)
HELEN CHENOWETH, Idaho
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
David A. Kass, Deputy Counsel and Parliamentarian
Carla J. Martin, Chief Clerk
Phil Schiliro, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on June 24, 1999.................................... 1
Statement of:
McCallum, Lt. Col. Edward, Director of the Office of
Safeguards and Security, U.S. Department of Energy,
accompanied by William L. Bransford, Esq., Shaw, Bransford,
Veilleux & Roth, Washington, DC; Peter Leitner, Senior
Strategic Trade Adviser, Defense Threat Reduction Agency;
Michael Maloof, Chief of Technology Security Operations,
Defense Threat Reduction Agency; and Jonathan Fox, Esq.,
Arms Control Specialist, Defense Special Weapons Agency.... 53
Weldon, Hon. Curt, a Representative in Congress from the
State of Pennsylvania...................................... 25
Letters, statements, etc., submitted for the record by:
Burton, Hon. Dan, a Representative in Congress from the State
of Indiana:
Letter dated May 28, 1999................................ 167
Prepared statement of.................................... 6
Fox, Jonathan, Esq., Arms Control Specialist, Defense Special
Weapons Agency, prepared statement of...................... 137
Horn, Hon. Stephen, a Representative in Congress from the
State of California, examples of security incidents........ 205
Leitner, Peter, Senior Strategic Trade Adviser, Defense
Threat Reduction Agency, prepared statement of............. 78
Maloof, Michael, Chief of Technology Security Operations,
Defense Threat Reduction Agency, prepared statement of..... 123
McCallum, Lt. Col. Edward, Director of the Office of
Safeguards and Security, U.S. Department of Energy,
prepared statement of...................................... 60
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut:
Memo from Johnathan Fox.................................. 142
Memo from Dr. Leitner.................................... 197
Souder, Hon. Mark E., a Representative in Congress from the
State of Indiana:
Information concerning part of the Cox report............ 209
Letter dated May 25, 1999................................ 182
Weldon, Hon. Curt, a Representative in Congress from the
State of Pennsylvania:
E-mail from Mr. Trulock.................................. 42
Information concerning part of the Cox report............ 44
Prepared statement of.................................... 35
RETALIATION AT THE DEPARTMENTS OF DEFENSE AND ENERGY: DO ADVOCATES OF
TIGHTER SECURITY FOR U.S. TECHNOLOGY FACE INTIMIDATION?
----------
THURSDAY, JUNE 24, 1999
House of Representatives,
Committee on Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 10:30 a.m., in
room 2154, Rayburn House Office Building, Hon. Dan Burton
(chairman of the committee) presiding.
Present: Representatives Burton, Gilman, Morella, Shays,
Ros-Lehtinen, McHugh, Horn, Davis of Virginia, McIntosh,
Souder, Scarborough, LaTourette, Barr, Miller, Terry, Biggert,
Ose, Ryan, Chenoweth, Waxman, Lantos, Wise, Owens, Mink,
Maloney, Norton, Cummings, Kucinich, Tierney, Ford, and
Schakowsky.
Staff present: Kevin Binger, staff director; Barbara
Comstock, chief counsel; David A. Kass, deputy counsel and
parliamentarian; Corinne Zaccagnini, systems administrator;
Carla J. Martin, chief clerk; Lisa Smith Arafune, deputy chief
clerk; Scott Feeney, professional staff member; James Wilson,
chief investigative counsel; Michelle White, counsel; Phil
Schiliro, minority staff director; Phil Barnett, minority chief
counsel; Kenneth Ballen, minority chief investigative counsel;
Michael Raphael, Michael Yang, and Michael Yeager, minority
counsels; Ellen Rayner, minority chief clerk; Earley Green,
minority staff assistant; and Andrew Su, minority research
assistant.
Mr. Burton. Good morning. A quorum being present, the
committee will come to order. Over the past 2\1/2\ years, this
committee has focused a lot on the People's Republic of China.
We have looked long and hard at millions of dollars in illegal
contributions that flowed from China to the Democratic National
Committee. One month ago we heard Johnny Chung testify that the
head of the Chinese military intelligence agency gave him
$300,000, which he said could be given to the President's
campaign, and we heard testimony that others were involved. If
anyone ever had any doubts, it has now become crystal clear
that there was a Chinese Government plan to illegally influence
our elections.
This is a very serious issue. We have received no
cooperation whatsoever from the Chinese Government. We asked
them to let us travel to China to interview witnesses. They
turned us down flat. They told us they would arrest us if we
came over to China. We asked them to give us bank records from
the Bank of China to show where the money came from. They gave
us nothing. We asked the Clinton administration to help us
through diplomatic channels, but they haven't lifted a finger.
The President has had three summit meetings with Chinese
leaders over the past 2 years, and he has yet to put any
pressure on them to explain what they did.
But this isn't the only issue that we have with China. We
have some very difficult national security problems as well. A
few weeks ago, the Cox committee report came out. It revealed
for the first time how extensive China's espionage has been
against our nuclear weapons labs. China's thirst for our
technology is not limited to nuclear bombs. They have also
engaged in a massive effort to acquire sophisticated U.S.
technology to modernize their military, everything from
supercomputers to milling machines to aircraft technology.
Sometimes they do it in an above the board manner; just as
often they do it illegally through front companies and with
phony end users.
It is pretty obvious that China has taken a very
adversarial approach toward the United States. The question now
is, what have we done about it? Unfortunately, when you look
behind all of the spin and the PR, the answer is, not very
much.
Today we have three witnesses from the Department of
Defense and two from the Department of Energy. They have
several things in common. First, they are all career civil
servants. They are not political appointees. Second, they have
all served across more than one administration, both Republican
and Democrat. Third, they have all worked very hard to try to
safeguard sensitive U.S. technology from foreign adversaries or
potential adversaries.
Fourth, they have all had to fight with entrenched
bureaucracies to do their jobs. Finally, they have all suffered
retaliation and damage to their careers for trying to do the
right thing.
Two of our witnesses, who brought serious problems in their
agencies to light, have been accused of violating security
rules. In my opinion, this appears to be harassment, pure and
simple. One of them is Lt. Colonel Edward McCallum of the
Energy Department. Colonel McCallum is the Director of the
Office of Safeguards and Security. He is in charge of security
at all of the Energy Department's nuclear facilities. He has
held that position for 10 years. He has worked on security
within the Department of Energy for over 20 years. He is a
decorated Vietnam war veteran.
I think the record will show that nobody has fought harder
to try to improve security at the Department of Energy labs
than Colonel McCallum. He has written report after report
pointing out the weaknesses. Year after year, he has fought
internal battles to try to fix the problems. During the Bush
administration there were security problems. Colonel McCallum
testified before the Dingell committee in 1989. He criticized
the Department. After he testified, he was called into the
Under Secretary's office. Was he punished? Was he threatened?
No. They put him in charge of the Safeguards and Security
Office and told him to fix the problems that he brought up. He
was told to meet with the Under Secretary every week to keep
him up-to-date. There was still bureaucratic resistance, but at
least he was getting high level support.
During the Clinton administration, things changed.
Secretary O'Leary decided to open up the labs and make them
more accessible. The number of foreign visitors doubled.
Security then took a back seat. Colonel McCallum's office lost
any semblance of control over foreign scientists at the labs.
Secretary O'Leary placed a new level of bureaucracy between
McCallum's office and the high level decisionmakers he used to
report to. According to Colonel McCallum, his relationship with
upper management became adversarial.
On April 16, Colonel McCallum was invited to testify before
the Rudman Commission about the problems at the labs. Three
days later, he was handed a memo by the Assistant Secretary of
Energy putting him on administrative leave. She accused him of
disclosing classified information, which is a devastating
accusation when you have to work with classified information
every day. It is a career ender.
Now I am not going to get into the substance of what he is
accused of disclosing. I am going to ask other Members to do
the same thing. Until this dispute is resolved, I think it
would be prudent to stay away from the substance of the issue.
However, in my view, this smells rotten.
This looks like retaliation against someone who has been a
tough critic of the Department for years. I want to just list a
few reasons why this looks so fishy to me.
First, there is a long history at the Energy Department of
retaliating against whistleblowers by threatening their
security clearances. John Dingell, when he was chairman, held a
number of hearings on this when he was the chairman of the
Commerce Committee. Let me quote you what he said way back in
1984 on this very subject. This is Chairman Dingell speaking.
This is an insidious time of harassment because it
threatens the very livelihood of an employee. It also dampens
the will of the employee to be honest with their supervisors
and to be honest with the Congress of the United States. It is
clear that without a Q clearance, you are out of a job in
defense programs at the Department of Energy.
Second, if someone is suspected of revealing classified
information, there is a procedure that has to be followed. It
must be followed. It is spelled out in great detail in the Code
of Federal Regulations. The employee has a right to a hearing.
He has a right to a lawyer and to present evidence. The
Department would not do this. They broke their own rules, so
Colonel McCallum could not get a fair hearing.
Third, the first thing the Department is supposed to do is
ask the Office of Classification to review the material and
determine whether it is classified or not. Again, they did not
do this.
Fourth, we asked the Department of Energy to cooperate with
us as we looked into this. They haven't. We asked to meet with
the two people who met with Colonel McCallum and put him on
administrative leave. The Secretary has refused to let them
meet with us. We sent them a subpoena for documents. It was due
over a week ago. They have not complied. This is unacceptable.
Although the Secretary of Energy is a friend of many of us in
Congress, I am seriously considering moving a contempt citation
against him if we don't get the documents we asked for and to
which we are legally entitled.
One of the things I have learned is that when people refuse
to cooperate with a congressional investigation, there is
usually a reason, and it is usually not a good one. I find this
all very disturbing. This is a Department that left Wen Ho Lee
on his job with his security clearance for 18 months, after the
FBI said there was no reason to do so. But Colonel McCallum has
been fighting for tougher security for years, and he is getting
pushed out of his job without so much as a hearing. We are
going to hear from Colonel McCallum today and we are going to
continue to try to get to the bottom of this.
We also are going to hear from three witnesses from the
Defense Department. They have been involved in the review of
export licenses for dual-use technologies; that is,
technologies that are controlled because they have a military
use as well as civilian use. They are not political appointees.
They are career civil servants. They are nonpartisan experts in
their fields. They will each testify that they have tried to
stop the export of sensitive technology to Communist China and
other countries. They will describe how they have been run over
rough-shod by a system geared to get licenses approved with as
little opposition as possible.
Dr. Peter Leitner is one of these experts. Dr. Leitner will
testify that he opposed the export of sophisticated computers
to India that they could use in their nuclear program. He was
overruled. He opposed the export of aircraft engines to
Communist China, engines that could be modified for using in
their Silkworm missiles. He was overruled. He opposed the sale
of machine tools from a McDonnell Douglas plant to China
because he was afraid they would be diverted to a military
facility. He was overruled. He learned later that the machine
tools did wind up in a military facility. There is now a
criminal investigation under way regarding that.
According to Dr. Leitner, every time he opposed a license,
his bosses grew more and more frustrated with him. Then earlier
this year, he too was accused of a security violation under
very questionable circumstances. Does this sound familiar? Dr.
Leitner has filed a whistleblower complaint to defend his
reputation.
One of Dr. Leitner's colleagues will also testify. Michael
Maloof also has been swimming against the tide trying to stop
sensitive technology exports to Communist China. His career has
also suffered. We will also hear from Jonathan Fox. He is an
attorney in the Defense Special Weapons Agency. He was asked to
write a position paper on whether China should be certified as
a nuclear nonproliferator. That means not giving nuclear
weaponry to other countries. This decision had important
consequences. If China was certified, they would be eligible to
receive civilian technology from the United States, technology
that also had military uses.
There was also a lot of pressure because this was happening
1 week before the President's first summit meeting with Chinese
President Jiang Zemin. Mr. Fox is an expert in this area. He
certified that China is a nuclear proliferator, giving weapons
to other countries. He wrote a memo that said they were giving
these weapons to other countries. He was forced to rewrite his
memo under duress to say just the opposite. He testified that
he felt his job was threatened. I want to have a copy of the
memo put up on the screen, because I think it is important that
my colleagues see what happened.
You will note in the margins some handwritten notes which
directed him about what things to take out of that memo so that
it would look like China was not involved in the proliferation
of nuclear weapons. You can see there the big line drawn
through it. The material that was slashed out showed very
clearly that China was involved in the proliferation of nuclear
weaponry.
Now, the facts are the facts. If China is a proliferator,
then no one in the civil service should be told they have to
write a position paper saying that they are not. There is
absolutely no reason for Congress to pass a law requiring the
administration to make a certification if they are going to
just ignore the facts. If experts in their fields are going to
have their careers threatened for telling the truth, then there
is something seriously wrong. That is what we are here to find
out about.
We are going to have one final witness from the Energy
Department, Mr. Robert Henson. We are going to hear him in
closed session at the end of the hearing because of some
security concerns. But, again, he is another witness who
believes that he was punished because of what he said.
There are two very serious things going wrong here. First,
experts in their fields are being ignored on some very serious
issues and our national security is being threatened as a
result.
Second, the experts who are fighting to do the right thing
are being punished for their efforts to try to protect this
country. These five people who are going to testify today are
risking a lot. They are already unpopular at their agencies.
Their careers have already suffered. I am going to be watching
what happens after this hearing very closely. If there is even
a hint of retaliation because they came here today and told the
truth, this committee will not stand idly by. People will get
subpoenas, they will be called before the committee, and they
will be put under oath to explain if there was any retaliation
and why it happened.
People who have followed this committee's work know I have
not been shy about issuing subpoenas in the past and I shall
not be in the future. What we are talking about here is
defending ourselves against Chinese espionage and stopping the
transfer of military technology to a Communist regime that is
very unpredictable. We don't know what the future holds, so
that is why this is important. I won't stand for people being
punished and intimidated for coming before the committee and
telling us what they know.
I ask unanimous consent that all Members and witnesses'
opening statements be included in the record. Without
objection, so ordered. I ask unanimous consent that questioning
in this matter proceed under clause 2(j)(2) of House rule XI
and committee rule XIV in which the chairman and ranking
minority member allocate time to Members as they deem
appropriate for extended questioning, not to exceed 60 minutes,
equally divided between the majority and minority.
Without objection, so ordered.
With that, I yield to my colleague from California, Mr.
Waxman.
[The prepared statement of Hon. Dan Burton follows:]
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Mr. Waxman. Thank you very much, Mr. Chairman. I have
especially strong feelings about the rights and proper
treatment of whistleblowers. Government and corporate
whistleblowers are often courageous individuals who risk
everything they have, simply because they want to do the right
thing, and they have been responsible for providing key
information in many important recent investigations. We have a
responsibility to protect these brave men and women.
There have been, of course, whistleblowers who amounted to
little more than malcontents, cranks, or employees who were
incapable of doing a competent job. In other cases, the
seemingly scandalous story a whistleblower initially tells
turns out not to involve corruption or cover-ups, but simply an
honest policy disagreement between subordinate and supervisor.
Since reputations can instantly be destroyed in these fights,
most Members of Congress tend to be very careful in these
situations and painstakingly sort through all the facts before
reaching conclusions.
I think Members of Congress should be especially sensitive
to the details in these cases, because we all inevitably face
situations in which we disagree with our staff's
recommendations. We have all had to choose between our staffs'
conflicting recommendations. I recall many circumstances where
I have had staff people come in, argue opposing points of view,
and I have to make a judgment. I wouldn't want those with whom
I eventually disagreed to then go out and say that there was
some wrong motive on my part because I disagreed with them.
In all of these cases, it would be easy for one disgruntled
staff member to accuse any of us of making a decision for the
wrong reasons and for our integrity to be questioned.
So our job today is to sift through the testimony we
receive and reserve judgment until we have all of the facts.
I do want to note, however, that based on what I know so
far, I am particularly troubled by the treatment Mr. McCallum
has received. If it turns out that he or any of the other
witnesses have been the target of retaliation intended to
intimidate them from doing their job competently and honestly,
I will ask the chairman to join me in putting an immediate stop
to those tactics and to take whatever steps are necessary to
make sure it doesn't happen to others.
I want to welcome our witnesses to the committee. I look
forward to listening to their testimony. Thank you, Mr.
Chairman. I yield back my time.
Mr. Burton. Thank you, Mr. Waxman. I would ask any other
Members that have opening statements to put them in the record,
with the exception of the chairman of the International
Relations Committee, who has a brief statement.
Mr. Gilman. Mr. Chairman, I want to thank you for holding
this timely hearing today dealing with both the reluctance of
the Department of Defense and the Department of Energy, to hear
the truth from career professionals about possible nuclear
espionage and current concerns about the lax security in their
procedures. I am gratified and saddened by the report of the
Cox Select Committee on United States National Security and
Military Commercial Concerns with the People's Republic of
China and the courage of our Nation's career professionals
working at both the Departments of Defense and Energy.
The advances in nuclear weapons and ballistic missiles that
China will reap from their acquisition of American science and
technology directly undermines our fundamental national
security. Regrettably, the administration's response to this
threat to our national interest has been at best anemic. The
Congress has a great deal of work to do to rectify those
problems that have been identified by the Cox committee.
Moreover, we are extremely concerned with the retaliation
which has been allowed to take place in both the Departments of
Defense and Energy upon our career professionals. If it were
not for these professionals, we may never have known the truth
about nuclear espionage and the current lax security that still
exists today.
I look forward to working with our colleagues on this
committee and with the gentleman from Pennsylvania, Mr. Weldon,
on legislation to protect our career professionals, working to
protect our Nation's national security. Hopefully the
administration will fully cooperate with the Congress in
addressing this most distressing and regrettable chapter in our
Nation's history.
Thank you, Mr. Chairman.
Mr. Burton. Thank you, Mr. Chairman. We will now ask our
first witness, Representative Curt Weldon, who served on the
Cox committee and who has done yeoman's service for this
country, to come forward. Congressman Weldon, we appreciate
your hard work, your diligence, and your concern about our
national security. We welcome you here today. You are
recognized for an opening statement.
STATEMENT OF HON. CURT WELDON, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF PENNSYLVANIA
Mr. Weldon. Thank you, Mr. Chairman. I would ask unanimous
consent to put my statement in the record.
Mr. Burton. Without objection, so ordered.
Mr. Weldon. I would just like to speak to my colleagues and
friends from the heart, because I have been involved with each
of the cases you are going to hear today in one way or another
over the past several years. I think it is most important that
I convey to you in a very personal way my concerns.
I appreciate the comments of the distinguished ranking
member, Mr. Waxman. I know his integrity, and I share his
concerns that before we draw conclusions we should get to the
bottom of each individual case and see what the true facts are.
I share that sentiment totally.
Mr. Chairman, let me say at the outset that I have been in
Congress for 13 years and have served on the National Security
and Armed Services Committee. It has been an area I have tried
to specialize in. Defense and security in this Congress has
been and is a bipartisan issue. I am proud of the fact that in
the 5 years I have chaired one of the two most aggressive
National Security subcommittees, Military Research and
Development--with 28 Members of Congress, we have never had a
dissenting vote in 5 years. I take great pride in the fact that
when we do things on security issues, they are bipartisan. We
look at these issues in a way of working together.
As you will hear me explain today, two of the cases you are
going to be confronted with are in fact being worked in a
bipartisan way by Members of both parties. These issues are
serious issues and they reflect national security concerns and
must be looked at.
I want to make one other comment, Mr. Chairman. The whole
issue of whistleblowers coming forward is not new. It is not
something that just suddenly arose in the past several years. I
can remember in the first several terms that I served in
Congress, there were people in the Pentagon who came to us both
quietly and before congressional committeess to tell us about
illegal expenditures, inappropriate activities, and
investigations that were not properly dealt with. That was as
serious then as it is today. So this hearing should not be
looked at as something that just occurred.
This an issue that needs to be dealt with. You are going to
hear stories today from the witnesses and others that I will
discuss that involve people with classified status. I want you
to keep in mind the protections available to employees of the
Federal Government who are not in classified status, are not
necessarily available to those employees who serve in a
classified position. That is extremely unfortunate. I would ask
this committee, because it is your oversight, to look at ways
that we can protect these employees.
The stories you are about to hear I think are from great
Americans. They are from people who are dedicated
professionals. I don't know whether they are Democrats or
Republicans or even registered. But I know the quality of their
work. In fact, in my job as the chairman of the Subcommittee on
Military Research and Development where I have to be able to
assess the emerging threats to us, and then allocate where the
dollars are going to meet those future threats. We work in a
bipartisan way with the professionals in the CIA, the DIA, DOE
intelligence, the NSA and all the other security operations to
make sure that we are getting the best information to be able
to assess accurately whether or not we are putting dollars in
the right place, whether the emerging threats are in fact where
we are putting the dollars we have. That is especially
important in this day and age when defense dollars are
shrinking so rapidly. So it is critically important that we
understand that people need to be able to give us honest,
professional assessments without fear of retaliation, without
feeling that their examination and professional judgments must
fit with some predetermined policy conclusion. I don't care
whether that policy conclusion is from a Republican President
or a Democrat President. Unfortunately, you are going to hear
some stories today, and some others I am going to ask you to
followup on, that I think present some very real challenges for
us. We need to understand the concerns that people have.
You are only seeing the tip of the iceberg. I will give you
the outline of perhaps 8 or 10 cases. I can tell you there are
scores more. I will tell you of some of the attempts that we
made on the Cox committee to talk to other employees with
similar concerns. As you know, I also served as one of the nine
members of the Cox committee, another totally bipartisan
effort. We worked hard. The Democrat members who worked on that
committee were absolutely totally effective, equally effective
to the Republicans, because national security was at stake. But
there were some concerns raised during our investigation that
you need to be aware of, that we couldn't deal with in the Cox
committee that this committee perhaps can deal with.
Let me just go through several of the examples, Mr.
Chairman, before you call up your expert witnesses.
I want to talk first of all about how this whole process
came about. Five years ago, when I took over the R&D
subcommittee, I felt we would work in a strong bipartisan way
to assess emerging threats. I involved my ranking members, Owen
Pickett and John Spratt, in every meeting, threat assessment
briefing we had. A couple of patterns started emerging relative
to Russia, and the threats that we saw increasing in Russia
because of the instability within Russia.
I came to meet a DOE career employee whose name is Jay
Stewart. Jay is in the audience today, Mr. Chairman. He is not
a witness, but he will make himself available to come in. His
career has been basically, I don't know whether he will agree
with this, but I think ruined because of simply doing his job.
Now, Jay served as a professional in the Department of
Energy intelligence operation for 16 years. He was given the
highest award that is given by this Government to a career
intelligence employee, the highest award. He was recognized for
his expertise as a foreign intelligence officer in assessing
the stability of Russia's nuclear stockpile, of assessing
Russia's nuclear program, and whether or not the internal
turmoil in Russia should cause us to be concerned because that
increasing threat might eventually be used against us or that
technology might be transferred to a rogue state or a nation
that perhaps is not necessarily a friend of ours.
Jay headed up a program called Russian Fission. In December
1992, he led a classified conference on this subject matter
which was widely attended by military intelligence and policy
communities. In fact, when Hazel O'Leary came in in 1993, he
briefed her in February. He was asked then to go over to NATO
and to personally brief the Secretary General of NATO, Manfred
Woerner, which he did. Manfred Woerner was so concerned, but
impressed, with what Jay's briefing was about, that he sent a
classified cable back to the State Department which this
committee can access. It is available, I will give you the
citation, which shows Manfred Woerner's concern as the head of
NATO about what Jay Stewart's operation was telling him.
A short time after Jay briefed Manfred Woerner, he was
approached by a new appointed Director of DOE's Office of
Intelligence and Arms Control, Jack Keliher. This was a
political appointee. All papers, briefings, agendas, conference
video and audiotapes from that conference involving Jim
Schlesinger and intelligence agents from the CIA, DIA, and
intelligence community were seized, locked up, and shredded. We
have the name of the person who shredded them, who said that
publicly. Keliher said the Secretary told him, the program
Russian Fission was ``politically sensitive'' and could
``embarrass the President.'' He further went on to say, ``If
any materials from the National Defense University Conference
which Jay Stewart ran were ever leaked to the press, somebody
would be fired.'' He then said Jay Stewart's work was ``ill
informed,'' contained ``inaccurate assumptions and
conclusions,'' and could not be referred to because it ``gave
the wrong impression of the situation in Russia.''
That may be the case, as Mr. Waxman said, but somebody
needs to look at why Jay Stewart's materials were shredded, why
information relative to this classified conference were
basically taken away so that a proper analysis could not occur.
Jay was an outstanding career employee of Energy. He
eventually lost his job, he was shifted over, in spite of
having been given the National Intelligence Meritorious Unit
Citation, the Presidential Meritorious Executive Rank Award,
and ultimately the National Intelligence Distinguished Service
Medal, the highest award an intelligence officer serving this
country can get.
I tried to get an Armed Services investigation of this
several years ago when Jay first approached me. Unfortunately,
the Department of Energy found out about that, in my own
opinion and in comments brought to me by some employees. There
was a meeting within DOE to kind of circle the wagons and get a
uniform response, which may have been the correct response, I
don't know that. I can tell you three brave DOE employees, and
I will give you their names, who corroborated everything Jay
Stewart said.
If you have read the book ``One Point Safe'' by Andrew and
Leslie Cockburn, one of the chapters in there documents the
work by Jessica Stern, one of our key nuclear experts in this
administration and previous administrations. She too documents
what Jay Stewart has said.
Mr. Chairman, someone needs to get to the bottom of the Jay
Stewart case. I want to publicly acknowledge Jay Stewart. He is
in the back of this room, if any of you would like to meet him.
He is not testifying today because your focus is on China, I
understand that, but I would ask you to followup on Jay's case
because it is something worthy of consideration by this
committee.
I followed up in my own committee by having Russians come
in. I first of all had Brookings scholar Bruce Blair. I had a
leading Russian environmental activist, Alexi Yablokov, a
personal friend of mine, testify in Congress. I had General
Alexander Lebed, who is currently the Governor of Krasnoyarsk,
and former KGB agent Stanislav Lunev, each come in before my
committee and testify. They all corroborate the concerns in
Russia that Jay Stewart was trying to warn us about before his
operation Russian Fission was basically eliminated and done
away with. By the way, one of Jay's assistants during that
early process was none other than Notra Trulock.
Mr. Chairman, the second case I would like to talk about is
a national intelligence estimate which focused the debate of
this country on emerging missile threats to America in 1995.
You may remember there was a lot of contention about whether or
not we faced a threat to our own security at home by a rogue
nation such as North Korea. I asked for an intelligence
estimate, along with at that point the head of BMDO, General
Malcolm O'Neill. For a year, we pressed the CIA to give us that
assessment.
For the first time we know of, and this was documented by
the General Accounting Office in a study we had done, the CIA
did not go through its normal pattern of releasing a national
intelligence estimate. They leaked the result to two Members of
the Senate for use in debate on the Senate floor before the
report was complete. Those two Senators, who are opposed to
missile defense, used that report as the basis for voting
against the national defense authorization that year, which was
1995. The President then directly referred to that report when
he vetoed the national defense authorization in 1995. For 3
years that report became the basis of the assessment of threats
to the United States in terms of long-range ballistic missiles.
We were livid, Democrats and Republicans on the committee,
because we knew that the CIA was not looking at the instability
in Russia and we called into question the process they used.
The GAO confirmed in a written report that the process they
used for that NIE was not like any other process that had been
used for an intelligence estimate. Certainly the way they
released it, in a political forum, we never release NIEs. That
is a classified document. In this case it was released.
We then as a Congress in a bipartisan vote convened the
Rumsfeld Commission, 5 appointees of the Republicans, 4
appointees of the Democrats, including the former CIA Director
under Bill Clinton, Jim Woolsey. They met for a year. They
analyzed what the CIA had done. Their conclusion was unanimous.
Just like the Cox committee, it wasn't 5 to 4, 7 to 2, it was 9
to 0, including opponents of missile defense on that panel.
They all said the CIA was way off base, that that report was
incorrect, that the threat from North Korea was here today. We
saw that verified last August 31 when North Korea shot off the
Taepo Dong I three stage rocket over Japan, which now the CIA
publicly acknowledges can hit America, right now today. The
CIA, in an unprecedented event, Mr. Chairman, reversed
themselves.
This was the basis of the debate in this country for 3
years over whether or not missiles were a threat to our
security. This NIE, the CIA now admits that what was said in
1995 was incorrect. Bob Walpole, who heads strategic services
on ICBMs for the CIA, now publicly acknowledged the threat is
here today.
Because of that challenge of the CIA national intelligence
estimates, the flood gates opened. People started to come to us
on the Armed Services Committee expressing their frustration
with the lack of ability of giving honest, open professional
judgments about emerging threats.
One example: I focused on Russia, as many of you know,
starting from the days that I graduated with a degree in
Russian studies. I have been there many times.
I heard about a brief that was available through the
Department of Energy intelligence services by a scientist at
Lawrence Livermore Laboratory on continuing research work being
done by the Russians on five technologies that they could break
out with that could harm our security. So as the chairman of
the R&D committee, I thought I better get this brief. I called
the person working on this project for 7 or 8 years, in fact I
will give you his name.
This individual, who is a scientist at Lawrence Livermore,
had been working on this brief called Silver Bullets for a
number of years. His focus was on emerging Russian technologies
that we needed to be aware of.
When I called him, he said, ``Congressman, I would love to
come back and brief Members of Congress.'' I said, ``It is
going to be bipartisan.'' He said, ``No problem, I would love
to do it.'' That was in July 1996. He said, ``I will go through
my chain of command to come back and brief you and let them
know there is a formal request.''
Mr. Chairman, I never heard anything. August 20, 1996, I
got this letter. This is the envelope it came in. Postmarked 21
August 1996. Can I read the memo?
Mr. Burton. Yes, sir.
Mr. Weldon [reads]:
Congressman Curt Weldon, 2452 Rayburn Building, House
Office Building, Washington, D.C. Dear Congressman, as a
concerned citizen, I hope that you will pursue the briefing
with Dale Darling. Dale has been pressured to cancel the
briefing. I would appreciate it if this note was kept
confidential to your office. Thank you.
August 20, 1996.
I eventually got the brief, but you know how I got the
brief? I had to hold this letter up in a hearing when Secretary
of Defense Perry came before our committee and I had my 5-
minute question time. I said Secretary Perry, I respect you,
you are a good and decent man. Do you agree with Members of
Congress being denied briefings on emerging threats coming from
Russia? He said absolutely not, Congressman. I went on to
explain this. Secretary Perry got us the approval 7 months
after I requested it to have Dale Darling come in and brief
Democrat and Republican Members of the House.
Dale Darling has been back several times since. We continue
to engage him. We didn't use that material to go out and create
some scare tactic with Russia, but it was important to the
process of us understanding what is happening in Russia, that
all is not rosy, that there are problems there.
Let me talk about a couple of CIA cases. These individuals
are not here. One will not show because his career is still in
jeopardy. He is a lifetime CIA agent, one of our experts.
He came to me because he has a relative that worked for me.
He is an expert assigned to monitor our policy involving the
U.S. involvement in peacekeeping missions. He was assigned to
the panel that drafted the Presidential Decision Directive 25
dealing with the use of force in peacekeeping efforts. This
analyst revealed to his superiors that an intelligence leak was
occurring in Somalia that compromised United States security.
So he did what he was supposed to do. He said we have got
to watch and be careful that we are not giving classified
capability to the NATO countries that could eventually be
leaked out and used against us. He was doing his job. He
objected to what was being done, and instead of being praised
for what happened, he was asked to submit to a drug test, a
medical exam for brain tumors, and a psychiatric evaluation.
Mr. Chairman, I have heard of that kind of activity in
Russia, where they used to charge people with crimes against
the state and commit them to psychiatric institutions. I have
never heard of a professional intelligence analyst in this
country being asked to undergo a psychiatric examination.
Ultimately it took a group of seasoned attorneys, whom I
have met with several times, to bring an abrupt end to his
harassment and ensure his exoneration, which has occurred
today. This individual will come before your committee, but
only under the conditions of his attorneys. I have given your
committee staff his name and you know the process that this
gentleman needs to go through. I want it to be bipartisan. This
is not a partisan issue.
Another example, and this is something that every member of
this committee understands. Remember when Benjamin Netanyahu
told us that he had evidence that Israel had documents linking
up the Russian Space Agency headed by Yuri Koptev and the
Iranians on building medium range missiles? That was a major
national headline in this country.
Well, we had been briefed in the Congress by the then
Director of the CIA Nonproliferation Center, Dr. Gordon Oehler.
He came over and briefed members of the Intelligence Committee,
the International Affairs Committee, and the Armed Services
Committee about Russia's involvement with Iran. He told us that
this is a concern, because Iran is going to build a medium
range missile that is going to threaten Israel. The Israelis
were absolutely outraged over this, and so was Congress.
The distinguished gentleman from New York, Ben Gilman,
along with Jane Harman, introduced a bipartisan Iran missile
sanction bill. We went down to the White House twice. I was
invited by Al Gore twice, once before the House vote and once
before the Senate vote. There were 11 Members of Congress
there, Senators and House Members. He pleaded with us not to
have this vote come up on the floor. When he finished, I said
Mr. Vice President, it is too late. The Congress feels we are
not doing enough to stop the proliferation from Russia which
Netanyahu and Gordon Oehler told us about.
The House voted 396 in favor of that bill, the Senate voted
96 to 4 in favor of it. The President's veto could have been
overridden, but Speaker Gingrich didn't want to bring the bill
to the floor in the September before the elections. A little
known fact, but I was there with AIPAC when AIPAC was talking
to the Speaker about the veto override. It was his choice not
to bring the bill up.
But the point is Gordon Oehler had no intention of
retiring. But when he told Congress about the cooperation
between Russia and their space agency with Iran on the Shahab
3, which was supported by the Israeli Government publicly,
which they knew about, he felt so much pressure that he took
early retirement. Again, you might want to talk to Gordon
Oehler, recognized in both parties, recognized by liberal arms
control groups as an outstanding expert on proliferation. He
felt the pressure because he was simply telling us in a private
way about problems that were occurring with Russian technology
transfers.
Mr. Chairman, let me get to Jack Daly. I work with the
military all the time, I know my colleagues and friends have a
high regard for our military personnel. Lieutenant Jack Daly
has served a distinguished career in the Navy for 16 years. He
is a Navy intelligence officer.
On April 4, 1997, he was flying in a helicopter on an
intelligence mission with a Canadian pilot. They were
monitoring Russian trawlers off the coast of Seattle that we
felt were tracking our nuclear submarine fleet, and they knew
these trawlers were not bringing cargo into ports or taking
cargo out, so they were highly suspected of being there for
intelligence gathering purposes for Russia.
In one of their missions on April 4, while flying over this
one trawler, there was a flash of light from the trawler which
was later found out to be a laser. Lieutenant Daly and the
Canadian officer's eyes were damaged by a laser device being
pointed at them in the helicopter. We don't know whether that
laser was being used to detect the capabilities of that
helicopter, and Lieutenant Daly can give you the reason, and he
is willing to come before this committee, by the way. I met
with him yesterday again. But the fact is we had a military
officer who was personally harmed by a Russian vessel. I can
tell you following Lieutenant Daly's incident there was an
inspection. The inspection only took place in the public parts
of that ship. Up until now and recently, we haven't been able
to see the classified documents relative to what we did as a
Nation to respond to Lieutenant Daly's problem.
If you read the book ``Betrayal'' by Bill Gertz, in the
back of that book, and this is unfortunate that he did it, but
Members need to understand he has released classified
documents. The first four or five classified documents are the
internal memoranda from Strobe Talbott and the current
Ambassador for the United States in Moscow, Ambassador Collins,
relative to Jack Daly's case. The highest level of our
government knew the severity of the Jack Daly incident. What
did we do? We went after Jack Daly.
Prior to this incident, he had received the highest
commendation a Navy officer can receive in serving his country.
On the following evaluation after this incident, he received
one of the lowest commendation levels that can be garnered by a
Navy officer.
Let me give you the quote of what his direct superior
officer said to him in the course of following up on this laser
incident, ``You don't know the pressure I am under to sweep
this under the rug.''
Mr. Chairman, if that is true, that is not America. It is
not America, if Navy personnel doing their job and protecting
our people feel that when they come forward and they are
injured personally, that they are going to be the scapegoat
because of some larger policy issue.
Mr. Chairman, I can tell you that Jack Daly and the Navy
officer who has never been talked to, never, are willing to
come before your committee, and I would ask you to bring both
of them in.
Mr. Chairman, in terms of the other witnesses you are going
to have today, just a couple of comments, because I know their
cases, a couple of them I am working with personally. I want to
first of all acknowledge the distinguished work of our friends,
both Fred Upton and from the State of Pennsylvania, my good
friend Ron Klink. They have taken up the McCallum case, they
have written Dear Colleague letters, they have written to Bill
Richardson in a bipartisan way. They have asked, as Mr. Waxman
has, for a full explanation of why Mr. McCallum has been
treated the way he has.
I did a special order on Mr. McCallum several weeks ago,
and something came to me through e-mail that kind of surprised
me. I didn't ask for this, it just came to me. I know the
fellow who wrote it, but it is surprising, because of all the
pressure he has been under and the fact that he has really come
out as a champion for the administration on cleaning up our
labs. I would like to read the very brief e-mail to you.
This is about Ed McCallum's case.
Thank you for bringing attention to this miscarriage. I
have worked with Ed for several years and have always found him
to be professional in every way. The allegations against him by
the Department are inexplicable. I have little doubt that the
Department's actions are part of the broader pattern of
harassment and retaliation against any and all whistleblowers
concerned about national security issues. Sincerely, Notra
Trulock.
Mr. Chairman, the McCallum case is an example of a system
gone wrong. You are going to follow that up with the witnesses
from DTSA, two outstanding people, Mike Maloof and Dr. Peter
Leitner. These two individuals are career technical experts.
Again, they are not partisan, they are not in favor of any one
point of view. Their job is to assess technologies that come
back to harm us.
If you question them, I ask you to ask Dr. Leitner, and
they both testified before the Cox committee, if he ever had an
incident where a recommendation he made in his computer was
changed by someone above him while he was on vacation from a no
recommendation to either a positive recommendation or another
recommendation.
Ask him about the changes within the agency and the
pressures brought to bear on them as professionals. Both Mike
Maloof and Peter Leitner are outstanding employees.
Now, I can't verify all the accuracy of what they are going
to say, but that is what this committee can do. I implore my
friends on both sides of the aisle, this is not a partisan
issue. These are security concerns. These need to be issues
that we deal with because I don't care if the next President is
a Republican or a Democrat. We need to have good solid
intelligence information to deal with threats that we see
emerging.
The other cases, I think, are of equal concern, the cases
involving Livermore and the cases involving Los Alamos and the
case involving Mr. Fox.
Mr. Chairman, I would just ask you and I would implore the
distinguished ranking member and all of the members of the
committee to work with us. I think there is some need for some
legislative change. I will make two suggestions, and I am not a
policy expert in this area. I will let you all decide how to
handle it.
My understanding is that today, a Federal employee who has
classified status, cannot take advantage of the Merit Systems
Protection Board. They are specifically excluded because they
are in a classified position.
One of the things I would suggest that you might look at is
to ask the Merit Systems Protection Board to set up a separate
process just for those employees who have classified
intelligence status, to give them a means of going through a
process to protect their rights.
Second, I would ask you to consider whether or not it is
worthwhile that we put into place legislation requiring every
Inspector General to establish an office of employee advocacy
so there can be a separate office within the IG's office that
would be an advocate for the employees. I can tell you, if you
talk to the employees I mentioned here today, and the ones that
are not here, they are going to tell you in some cases the IG's
office do not and cannot do the job. Maybe it is time to put
into place a separate internal entity in each IG's office just
for employee's advocacy, especially for those who have
classified status.
Mr. Chairman and Mr. Ranking Member, I thank you for your
time. I appreciate the sincerity with which you are taking this
hearing. I have tried to make this as bipartisan and
nonpartisan as I can, because I want to continue to work with
friends on both sides of the aisle to solve these problems. I
say again, these problems have existed in previous
administrations. Chairman Dingell did a fantastic job in
previous years in exposing problems involving whistleblowers,
and I have applauded him publicly for that. I would ask this
committee to do the same. Thank you.
[The prepared statement of Hon. Curt Weldon follows:]
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Mr. Burton. Thank you very much, Mr. Weldon, for a very
thorough analysis of many problems. You may rest assured that
our legal staff will contact those people and have them come
in, and we will undoubtedly have more hearings on this.
Mr. Weldon. I forgot one other point.
Mr. Burton. I would ask you to request to put the memo or
e-mail from Mr. Trulock into the record.
Mr. Weldon. I ask unanimous consent to put it in the
record.
Mr. Burton. Without objection.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T2262.025
Mr. Weldon. When you bring up Mr. Maloof and Dr. Leitner,
let me mention this point to you. The bipartisan Cox committee
recognized that we had serious problems within DTSA, and wanted
to talk to the employees in that agency. We asked as a
bipartisan committee that we thought maybe these two were just
exceptions and maybe the other employees would discount what
they were saying, which is the point Mr. Waxman raised. Maybe
they are examples. So I recommended to the full committee,
these are all in private sessions, that we ask the Department
to allow us to bring in DTSA employees. They said no. I then
came back and said can we do a random selection? Just randomly
pick employees and bring them in for the committee in a
classified way to talk to them. They said no.
On page 213 of the Cox committee report, which all of you
got, I would like to make sure this is in the record, there is
a separate paragraph, and I would like to read just the title
of it to you. It is entitled, ``Inability to Survey Defense
Technology Security Administration Employees Regarding Agency
Management Issues.''
We were denied the opportunity to talk to any other DTSA
employees besides these two.
Mr. Burton. Well, we will ask unanimous consent that that
part of the Cox report be included in the record, because it is
relevant. Without objection, so ordered.
[The information referred to follows:]
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Mr. Burton. I think you covered this, and I will not
belabor it because you covered this very, very thoroughly, but
why do you think, as a person who has analyzed this, why do you
think these kinds of patterns are emerging in these agencies?
Mr. Weldon. Mr. Chairman, I don't have the long-term answer
to that, but let me just say as a student of Russia who
probably is Russia's toughest critic but their best friend, who
wants Russia to succeed, and supports every program the
administration has, they call me to get the votes for this and
I deliver on this every year, to support all their initiatives,
I want the same objective that Bill Clinton and Strobe Talbott
wants with Russia and China, but I think there is a fundamental
problem here. I think the fear has been we don't want to do
anything that might be perceived to be an embarrassment of
President Yeltsin or President Jiang Zemin.
Let me give you another example. I was going to mention
this in my testimony, but didn't. During the last several
years, and it started under the Bush administration, we didn't
want to embarrass Yeltsin with the reforms. So when we caught
Russia violating arms control agreements, which all of us have
voted on and supported, we didn't call into question those
violations.
I did a floor speech last July where I documented 37
violations of arms control agreements by China and Russia. This
wasn't prepared by me, it was prepared by the Congressional
Research Service. These were cases where Russia and China were
sending off chemical, biological, nuclear, machine tooling, and
other technologies to Iran, Iraq, Libya, Syria, North Korea,
India, and Pakistan. Out of the 37 times, we only imposed the
required sanctions twice. We waived the sanctions each time.
I was in Moscow in January the year President Yeltsin was
going to be reelected and was meeting with Ambassador
Pickering. The Washington Post had just reported a front page
story about the illegal transfer of Russian guidance systems to
Iraq. So I asked the Ambassador, what was the response when you
asked the Russians about the transfer of accelerometers and
gyroscopes? He said Congressman, I can't ask that question.
That has got to come from Washington.
I came back and wrote to the President at the end of
January. He wrote me a three-page letter in March. He said,
Dear Congressman Weldon, these allegations that the Post has
raised are serious. If they are true, they would be a violation
of the MTCR and we will take aggressive action. But we have to
have proof. We have to know it took place.
Now, the Israelis knew it took place, and we knew it took
place. I didn't know at the time. Our intelligence community
had 120 sets of these devices. Here are two of them. One is an
accelerometer and one is a gyroscope. You want to examine them?
They have Russian markings on them. They were clipped off of
Russian SSN-19 missiles. They are long-range missiles that were
used in their submarines aimed at American cities. We caught
Russia three times sending these to Iraq. We never imposed the
required sanctions.
We were given the assurances, and I can tell you that Gary
Ackerman and Tom Lantos and a bunch of Democrats were very
aggressively involved in this transfer. We were assured that
there will be an internal investigation done in Russia that
will result in criminal prosecutions. That never happened. So
Russia transferred three times these devices that we know of to
Saddam Hussein to improve the accuracy of their missiles.
Mr. Chairman, I just think that we didn't want to raise
that issue that year because Yeltsin was running for
reelection. We were so concerned over the past 8 years of not
embarrassing Boris Yeltsin that we didn't call into question
when Russia was in violation. We didn't want issues to surface
that would maybe embarrass Russia.
Mr. Chairman, I am a friend of Russia, and I will go to the
wall with Russia for anybody, but you can't ignore reality and
you can't punish innocent Federal employees for doing their job
because what they are saying we don't want to hear.
That is not the way you base your security policy. Yes,
Russia has problems. It doesn't mean we want Russia to be the
evil empire. China has problems. I am going to vote for MFN for
the President. I am going to be opposed by many of my
colleagues on our side. I want to engage China. But our
Government has got to set the tone. We have to understand it is
not wrong to be strong and consistent and transparent with
these two countries. I think you get weaker when you ignore
that.
So my bottom line feeling is that we have just been so
preoccupied with not wanting to embarrass each country, that we
don't allow issues to rise that we think may cause problems.
Mr. Burton. Let me just ask you a real quick question about
these two devices that you have there on the table, because
those are objects that can maybe make the point.
These were given by Russia, sold by Russia, to Iraq?
Mr. Weldon. Given or sold, we don't know.
Mr. Burton. Given or sold. But on three separate occasions
you said?
Mr. Weldon. Twice we found them in the Tigres River Basin.
Once with the help of our allies in that area that I can't
name, they were given to us.
Mr. Burton. The point is, these were more accurately
targeted missiles----
Mr. Weldon. Against Israel.
Mr. Burton. And could they be used beyond Israel?
Mr. Weldon. Absolutely. These are long-range guidance
systems. Iraq does not have the capability to build these
systems. Neither does Iran. They have to get this technology
from either the United States, Russia, or now China, even
though China got some of its technology from us. So here you
have Russia giving this kind of sophisticated technology out,
and we catch them, and we don't want to ask them about it. We
want to pretend it didn't happen. You can't do that. I am not
an enemy of Russia. I am a friend of theirs.
Mr. Burton. I think you made the point, and I appreciate
that.
Mr. Waxman.
Mr. Waxman. Thank you, Mr. Chairman. Mr. Weldon, what you
had to say was very interesting. I think it is unprecedented,
however, that you were given 20 minutes to make an opening
statement. I have never seen that happen before, and I hope the
chairman will allow all the witnesses to speak as long as they
feel they want to, because otherwise what we will be doing is
showing favoritism to a Member of Congress and telling
witnesses they have to be restricted in what they want to say.
Mr. Weldon. I apologize. As a teacher I tend to talk too
long.
Mr. Waxman. But on the other hand, it is impossible, as a
former chairman, to have a hearing where everybody gets to talk
as long as they want to talk. Usually there are time
constraints.
You have raised a lot of issues. I have no knowledge about
these cases, and you feel very passionately about them. I hope
the chairman will look into them, because if there are
situations where people are being retaliated against because
they have information that ought to be made public or ought to
be given to the Congress, then I think that it is of great
concern to us. But I just want to raise some skepticism about
an issue, just to point out there may be two sides to the
question.
You said you are going to vote for MFN. Many of your
colleagues, even on the Republican side, may not. Suppose I sat
down with my staff and I said, well, let's talk about this
issue. Should I vote to continue trade relations with China, as
we have had it in the past, or should I vote to withhold that
kind of privilege as a way to protest China's human rights,
China's activities in proliferation of weapons, and China's
spying on the United States? How else can I as a Member of
Congress express myself?
I go back and forth with my staff, and one of my staffers
decides when I reach the conclusion that he ought to go public,
she ought to go public, and say I am doing it for the wrong
motives? That perhaps I am voting for MFN for China because I
don't care about human rights, or I am voting against MFN for
China because I don't care about the economic interests of
businesses in the United States?
Do you think your staff should be allowed to do that?
Mr. Weldon. My staff I hire, and I want them to have their
own opinions. I don't hire the people in our intelligence
community and they don't change from administration to
administration. I would assume their loyalty to their job and
their professionalism is giving us their best judgments.
Mr. Waxman. I don't disagree with you. The point also has
to be, how do you run an agency? How do you make any kind of
decisions in an agency on policy matters if everyone is free to
go out and express their opinion and accuse those who reach a
different opinion of being disloyal?
Mr. Weldon. You make an excellent point. They shouldn't do
that and shouldn't go public, but they shouldn't be harassed,
have their job ended, be demoted, have their documentation
shredded. I agree with the gentleman.
Mr. Waxman. We are obviously arguing on a theoretical
level. I don't know fully about the individual cases we may
hear from today. But in my mind, there have to be some
situations where people, whether they are career or political
appointees, when the policy is articulated, can't go out on
their own, to criticize it and then try to have it portrayed as
someone being disloyal. I assume all the points you raised are
not just unique to the Clinton administration.
Mr. Weldon. I think I made that point fairly clear in my
statement.
Mr. Waxman. People have been criticized by their superiors,
in fact discharged by their superiors, both in the Bush
administration as well as the Clinton administration and the
Reagan administration and at other times as well, for the same
reasons you have outlined.
Mr. Weldon. In fact, I praised Chairman Dingell for his
work.
Mr. Waxman. Well, as I said in my opening statement, which
was all too brief in comparison to you and the chairman, I had
to say what I had to say and I said it, and that is we need to
be protective of whistleblowers, because whistleblowers do give
us information that ought to get out, and in many cases they
are very courageous, and I fully support that concern. On the
other hand, I just want, as you do, a way to be sure that we
are dealing with truth and not criticizing people because they
have taken different policy positions or are acting improperly
as people disagree.
Mr. Weldon. I agree.
Mr. Waxman. Thank you, Mr. Chairman. I am not using my full
5 minutes.
Mr. Burton. Thank you, Mr. Waxman. Mr. Shays.
Mr. Shays. I just want to publicly say, Curt, I thought
your presentation was really outstanding. What I take
particular satisfaction in, is you have been someone who has
labored in the vineyard year in and year out, not just issued
press releases, done really substantive work, and we are seeing
the fruit of your labor. It is extraordinary in so many areas.
You are, for instance, a strong supporter of an alliance, good
working relationship with the former Soviet Union. You have
more contacts in the Soviet States than most people in the
administration. So as one Congressman to another, I just want
to say to you, I am really in awe of how long you have labored
in this area, how you have kept it to yourself for so long, not
issued press releases, not made an issue of this, just done
your homework like no one else has.
As a result, you know a heck of a lot more than almost
anyone that I know on these issues. So your testimony was very
valued.
Mr. Weldon. Thank you, Mr. Shays. If you will yield to me
or if you will give me time to respond and just say that Steny
Hoyer, who is my co-chair on the Russian initiative, has been
laboring long before I was in Russian relations. It is a
bipartisan effort.
We supported the administration. I was proud to go over to
Moscow to help the administration convince the Russians that
our policy in Iraq was the right one, and the administration
knew what I was doing because I felt it was the right thing.
What we are doing is right for the country and it is not
meant to try to create any undue embarrassment for anybody, but
I appreciate your good comments, Mr. Shays.
Mr. Burton. Does the gentleman yield back his time?
Mr. Shays. Yes, sir.
Mr. Burton. The gentleman yields back his time.
Mr. Wise.
Mr. Wise. Thank you, Mr. Chairman.
Mr. Weldon, I was interested in your presentation because I
often tell groups at home that the Congress is like a giant
university, in the sense that you can't come here and
specialize in everything but you have got to specialize in a
few things, and then you develop expertise and people come to
respect you. And you certainly have done that in the national
security area, and I think that is very important.
It is just like I learned a long time ago, since most of us
have to stand uphill in West Virginia, I learned not to spend a
lot of time on agriculture and I leaned to others, and by the
same token on national security I look to you and to others on
both sides of the aisle; whereas, I hope to focus on
transportation and matters that are important. But I want to
thank you very much for your presentation.
There was one point that you made that I think points out
some complexities, and I wanted to take it up with you for just
a second, if I could. You spoke about, a number of times, where
it was observed that Russia is probably involved in selling to
Iraq, and the United States didn't take action, didn't impose
sanctions.
I, like you, have been a supporter of MFN. I am wondering
about it at this time, because I keep saying each year that I
am waiting to see further progress be made. So I am wondering
about MFN for China.
But it is also the case that I think there are a number of
incidents where China clearly, and even some of the
investigations that the chairman and this committee have done,
where China makes you wonder about whether we ought to say no
to get their attention, but we haven't. And you voted the way
you have and I have voted with you, incidentally, in that area,
because we felt that the complexity was such that while this
was bad and we had to call attention, whether it was human
rights or missile proliferation or whatever it was, that we
needed to stay engaged. So that could also be the
administration's rationale on the Russian situation as well.
Mr. Weldon. No, I understand. As I said, Mr. Wise, I have
supported the administration's engagement with Russia. In fact,
I have encouraged them to do more. I am trying to get them to
help establish a Russian mortgage housing financing system for
the Russian people. I have been working on that for 2\1/2\
years.
I think we have to--I think many of our problems in dealing
with Russia and China are of our own creation. We think we
can't talk to them--when things occur that they shouldn't be
doing, we should be confronting them with that; not walking
away and pretending it didn't happen. I think they lose respect
for us.
You know, Russians understand when you are honest and open
and tell them what they are doing wrong. They respect you for
that. But when you don't tell them and when you pretend it
didn't happen, I think they lose respect. So I support the
administration's engagement policy. I think it is the right
policy. I think in many cases our own government has failed
itself, and I say the Congress with it. I am not just trying to
blame the administration. There are some times where Members of
Congress in both parties have pressured the administration in
the case of China to lower the export controls, you know, but I
mean there is a problem here that we have to understand. As Mr.
Waxman said and you said, it is very complex, it is not easy,
but I am convinced that we need to continue to engage both
countries.
They are not going to go away and it is not going to get
better if we ignore them. I think it will get worse. But we
should engage them on our terms and we should engage them
around people like the two professionals sitting behind me, or
the five, to basically tell us what we can transfer and what we
can't, and when they try to get stuff that they shouldn't get,
then we hold them accountable, and when they sell this kind of
stuff, we slap their hand.
Mr. Waxman. Will the gentleman yield to me?
Mr. Wise. Sure.
Mr. Waxman. Let's look at Russia as an example. The United
States could have determined, and probably should have
determined, we were better off with Yeltsin winning that
election than Zyuganov winning the election.
Mr. Weldon. Absolutely.
Mr. Waxman. And having restoration of the Communist party.
Mr. Weldon. Absolutely.
Mr. Waxman. So if the administration sees that there is
information, if it is presented in a certain way, could have
consequences in Russia----
Mr. Weldon. Absolutely.
Mr. Waxman [continuing]. Aren't they responsible, as the
ones running our foreign policy, to make sure that we don't do
harm in Russia? Let's say someone within the Department, a
career person, wanted to hold Russia accountable, which is
proper, but hold them accountable in a time and in a manner
that could have adverse consequences. He may not/she may not be
thinking of the bigger foreign policy picture and the U.S.
policy, which is not set by career people in the Department,
but by the Secretary of State acting under the President of the
United States?
Mr. Weldon. No, I agree with the gentleman. I would say
that is the prerogative of the President and the administration
and the State Department, but this was 4 years ago. The
election took place 4 years ago. We never followed through, and
the Israelis know this. We never followed through to hold this
agency, these entities, accountable for what they did.
Mr. Wise. Can I get my time back so I can just close up?
Thank you.
Mr. Weldon, I just want to thank you again and just say
that I agree in the case of both Russia and China, they need to
be held accountable. I think what we have both been saying is,
maybe in roundabout ways, there are often other factors that
determine how you hold them accountable and when.
Mr. Weldon. Yes.
Mr. Wise. I appreciate that. Thank you.
Mr. Burton. The gentleman's time has expired.
Mr. Horn.
Mr. Horn. Thank you very much, Mr. Chairman.
I want to say you have done a brilliant job, as you usually
do, Curt. I have learned in the last 7 years in the House of
Representatives where the experts are, and you are truly on the
list of the top three or four, we all know that, and you do
operate on a bipartisan basis, and those are the people around
here that get respect and get things done, and I think you have
proved this morning you have both.
I think, Mr. Chairman, it is outrageous when professional
career servants who are doing their duty, as they see the right
to do that duty, are squashed by any administration, and I
would hope this committee would treat a Republican
administration like they would treat a Democratic
administration.
If the Congress cannot get the information it needs in
executive session or whichever way, then we have got a major
problem in this country. We cannot base our decisions on simply
propaganda from either a Republican or a Democrat
administration.
I realize that often there are people more loyal than the
king, shall we say, and that is true. We have seen that over
the years, but we need that information to make judgments. And
if we let that fail and people do get harassed, driven out and
even sent off to what I think the FBI used to do, Boise, ID or
Montana or someplace, that is just plain wrong and we have got
to make sure that doesn't happen.
Thank you very much for coming.
Mr. Burton. Mrs. Mink.
Mrs. Mink. Thank you, Mr. Chairman.
I too want to join my colleagues in commending you, Mr.
Weldon, for your expertise and knowledge that you have brought
to this committee. I think you have raised some very
interesting questions that this Committee on Government Reform
must look into.
Saying that, I think I have to concur with the ranking
member, Mr. Waxman, in saying that there is a big difference
between a disagreement on policy and the way in which an
executive agency deals with those disagreements in terms of
harassment and intimidation and demotions and all sorts of
matters that--or manners in which they can deal with these
individuals. And I think that that is really within the
prerogative of this committee to investigate and correct, if
necessary, if these behaviors are a part of the systematic
procedure to try to coerce their experts and their specialists
into a political--a politically correct kind of recommendation
or a management decision. Then we would be denying the
opportunity to gain and benefit from expertise if we are
conditioning their expertise to following a particular line
that may be the policy line of a current administration.
So I think that the issues that you bring before us are
very important, and I would hope that the committee would
pursue those from that vantage point than an inquiry as to
whether the policy was correct or incorrect.
Mr. Weldon. No, I understand. And I agree.
Mrs. Mink. Thank you very much, Mr. Chairman.
Mr. Burton. Thank you, Mrs. Mink.
Is there further questioning of the witness?
If not, thank you very much, Mr. Weldon, for your
testimony.
Mr. Weldon. Sorry I took so long.
Mr. Burton. It has been very, very helpful. We really
appreciate it.
Mr. Weldon. I owe you one, Henry.
Mr. Burton. We have a vote on the floor. Since we have a
vote on, rather than start with the next panel I think we will
go vote and come right back and we will start with the next
panel as soon as we return. So please excuse us. We stand in
recess until the fall of the gavel.
[Recess.]
Mr. Burton. The committee will reconvene. We have members
that will be drifting back in because the vote has just
concluded on the floor on the final passage of the flag burning
amendment.
So I would like to have the five witnesses, Mr. Bransford,
Lieutenant Colonel McCallum, Dr. Leitner, Mr. Maloof, and Mr.
Fox come forward.
Is Mr. Fox here?
Mr. Maloof. Yes.
Mr. Burton. I guess we don't have it in order here. Where
is Mr. Maloof? Where is Mr. Fox?
Mr. Maloof. I think he stepped out for a minute, Mr.
Chairman.
Mr. Burton. We probably ought to wait for Mr. Fox because I
need to have you sworn in.
Everybody run and check the men's room, or wherever he
might be.
Would you all please stand and raise your right hands,
please.
[Witnesses sworn.]
Mr. Burton. Be seated.
Lieutenant Colonel McCallum, we will start with you. I
understand that we are going to allow each one of you 10
minutes because your story is going to take a little bit more
time than normal. So you have 10 minutes to testify.
Mr. Bransford. Mr. Chairman.
Mr. Burton. Yes.
Mr. Bransford. My name is William Bransford. I am Colonel
McCallum's attorney and I would request permission to make just
a very brief statement before Colonel McCallum talks.
Mr. Burton. Proceed.
STATEMENTS OF LT. COL. EDWARD McCALLUM, DIRECTOR OF THE OFFICE
OF SAFEGUARDS AND SECURITY, U.S. DEPARTMENT OF ENERGY,
ACCOMPANIED BY WILLIAM L. BRANSFORD, ESQ., SHAW, BRANSFORD,
VEILLEUX & ROTH, WASHINGTON, DC; PETER LEITNER, SENIOR
STRATEGIC TRADE ADVISER, DEFENSE THREAT REDUCTION AGENCY;
MICHAEL MALOOF, CHIEF OF TECHNOLOGY SECURITY OPERATIONS,
DEFENSE THREAT REDUCTION AGENCY; AND JONATHAN FOX, ESQ. ARMS
CONTROL SPECIALIST, DEFENSE SPECIAL WEAPONS AGENCY
Mr. Bransford. Thank you, Mr. Chairman.
Yesterday afternoon, I received a surprising fax from Mary
Anne Sullivan, General Counsel to the Department of Energy, a
copy of which I provided to committee staff. I received this
fax in the afternoon, even though I had previously notified the
General Counsel that Colonel McCallum's written testimony was
due to the committee before 10 o'clock yesterday morning.
General counsel's letter limits Colonel McCallum's ability
to respond to the Department of Energy's charges against him.
We interpret the letter as allowing Colonel McCallum to make a
general denial about his disclosure of classified information,
but not to reinforce his position by any specific information,
even if he can do so with reference to unclassified guides and
procedures. We hope the committee understands Colonel
McCallum's situation.
He has been placed in an untenable position. He is being
told he cannot defend himself; he cannot tell this committee
why the Department of Energy is wrong, even though the
Department of Energy did not itself follow its own procedures.
Under current law, the Department has unbridled power to
make classification decisions without review and then use that
authority to retaliate against executives like Colonel McCallum
who tell them about specific threats to the health or safety of
the American public.
For these reasons, we have drafted a legislative change to
5 U.S.C. section 7532 that would allow for interagency review
of classification issues like those affecting Colonel McCallum.
We offer it for the committee's consideration.
We hope the committee understands that Colonel McCallum may
have to limit his answers because of the threats in the General
Counsel's letter, and I would request that the letter from the
General Counsel to me yesterday and the draft legislation that
we have prepared be admitted in the record.
Mr. Burton. Without objection, so ordered.
But let me make sure I understand this. There have been
threats issued in this letter, and I have not yet read it, that
will limit the testimony that is not classified pertaining to
what Lieutenant Colonel McCallum is going to tell us?
Mr. Bransford. The letter to me, Mr. Chairman, states that
Colonel McCallum is not at liberty to describe in his testimony
his views of the correct classification of the information in
dispute, even if he can do so by reference to unclassified
information. So he is very much limited in what he can say and
we are very much concerned that if he doesn't limit his
testimony, the Department could take action against him based
upon his actions in that regard.
Mr. Burton. Can he give this information to us in a closed
hearing?
Mr. Bransford. Mr. Chairman, I don't know. It is hard to
say whether he could or couldn't.
I would think that he could. It is my interpretation of the
letter that he can make a general denial, and I think that is
sufficient. I think the written testimony we provided the
committee yesterday----
Mr. Burton. All right. We will let him go as far as he can,
but I just want to say that the Department of Energy and Mr.
Richardson, the head of the Department of Energy, has done
everything possible in his power to try to stop this hearing
today. I have never seen any kind of pressure exerted like
this. I mean, they have gone to the leadership of the House and
everything else to try to stop this hearing, and now we are
getting a letter from the Department of Energy trying to
harness what Lieutenant Colonel McCallum says. I think it is
despicable and I just want the Department of Energy to know
this isn't the end of it. Whoever is here from the Department
of Energy, this isn't the end of it. We are going to pursue
this. This is baloney.
The Congress of the United States has a right to know these
things, and so do the people of the United States, if our
national security has been imperiled because of actions that
they have taken or nonactions that they have taken.
Lieutenant Colonel McCallum, you are recognized for 10
minutes.
Colonel McCallum. Mr. Chairman, Congressmen, Congresswomen,
thank you for the opportunity today to speak with the committee
about lapses in the Department of Energy's Nuclear Safeguards
and Security Program and the Department's long history of
suppression and reprisal against individuals attempting to do
their jobs.
Mr. Burton. Would you pull the mic a little bit closer? We
want to make sure we hear everything you say.
Colonel McCallum. DOE's arrogant disregard for national
security is clearly described in the recent report on security
at the Department of Energy by the President's Foreign
Intelligence Advisory Board and Congressman Cox's committee
report on espionage in our national laboratories.
It is clear today that the DOE has sacrificed nuclear
security for other budget priorities and has jeopardized
national security by failing to protect its laboratories
against widespread espionage or against the possibility of
terrorist attack.
Over the last 9 years, I have served as the Director of
DOE's Office of Safeguards and Security. In this capacity, I
have been responsible for developing the policy that governs
the protection of the Nation's nuclear assets, including
weapons, nuclear materials from which nuclear weapons are made,
highly classified information, and personnel security
clearances. My office is also charged with investigating
security incidents involving the possible loss of nuclear
materials and the unauthorized disclosure of classified
information.
You will note that these authorities did not include
implementation at our sites or an oversight responsibility,
which are a significant organizational flaw which I describe in
my more extensive written testimony and in some of the reports
that have been written for the Department.
As you may know, or as you know now, the Department of
Energy placed me on administrative leave on April 19th. Some
DOE officials allege that I committed a security infraction.
They claim that I disclosed classified information during a
discussion with a whistleblower from a DOE site.
This is not true. Based on the Department's published
classification procedures and guides, these allegations are
completely unfounded. I have released no classified
information. I have been an authorized classifier in the
Department of Energy for over 25 years, and helped develop the
first classification guide in the safeguards and security area
in the mid-1970's. I am also the Department's subject matter
expert on the areas of tactics, use of forces and protection of
our facilities.
Yet, it is strange that the Department did not consult my
staff, nor me, before taking this action. They failed to follow
their own procedures in investigating this incident and,
indeed, in following up with an appeal before I was placed on
administrative leave. In fact, the office that is designated by
regulation in the Department to adjudicate these issues, the
Office of Declassification, was directed not to do their duties
and provide the review.
This is incomprehensible. Instead, the Assistant Secretary
for Defense Programs, an organization which my office has been
extremely critical of in recent years because of incidents that
have become public in recent months, was tasked to do the job.
The outcome was not a surprise. Their approach was sophomoric,
based on speculation and supposition and a clear lack of
tactical technical expertise. I believe this action to be a
clear and obvious act of retaliation against myself and the
office that has tried to bring forward an increasingly
distressing message of failed security at the DOE laboratories.
The timing of these charges shows a clear attempt to
discredit and intimidate me immediately before I was to testify
before the PFIAB, and most certainly before the Congress,
relative to the recent espionage issues at the Department labs.
I informed DOE that I had been asked to appear before Senator
Rudman's panel to discuss DOE security on April 16. I was
placed on administrative leave on April 19th; then called the
next day and asked to delay my appearance before the panel
until after Secretary Richardson could speak to them first.
What is most disturbing, although doubtlessly ironic, is
the Department's defense of its action by invoking the mantra
of national security. The Department has adopted this position
and the position that the content of the so-called security
infraction is so secret that neither congressional staffs nor
my attorneys can review the information in question. It is a
variation on the old adage, ``I could tell you all about it but
then I would have to kill you.''
The fact that I must discuss this allegation in such a
public forum is personally and professionally distressing.
However, I feel compelled to do so because this action is one
in a long history of suppression and reprisal against others
and myself and, as such, I feel constitutes a serious and
continuing abuse of power. I speak out in the trust that this
committee and other Members of Congress will take the
legislative steps necessary to protect individuals who continue
to fulfill their responsibilities.
Many career civil servants and contractors carry on their
mission despite the likelihood that should they become the
bearers of bad tidings they face harassment, open threats, and
the loss of their careers and certainly their reputations.
These men and women are sometimes all that stand between
callous risk to the Nation's welfare and individuals who choose
to say whatever will deliver the most favorable spin at the
moment.
I am here to tell you that these civil servants and
Government contractors are watching what is happening to me and
the other men at this table today. They are watching because
they already know what has happened to others. Men such as John
Hnatio, Jeff Hodges, Dave Leary, Jeff Peters, and Mark Graff
have all had their careers ruined for coming forward and
addressing serious lapses of security at DOE facilities. Can we
continue to allow such intimidation, neglect and indifference
regarding these serious matters? I tell you, the message that
our employees have received thus far is, do your duty but do so
at the risk of being smeared, fired, or both.
This year, one of our best and longest-serving field
Security Directors suddenly retired after attempting to take
action against a contractor employee who willfully violated
security procedures and admitted a Russian visitor with an
untested computer to a security area at one of our facilities.
In January 1997, David Reidenour, head of security for one
of our sites, retired in disgust after only 90 days on the job.
Mr. Reidenour said, ``In my professional life as a military
officer, as a registered professional engineer and as a
technologist, I have never before experienced a major conflict
between loyalty to my supervision and duty to my country and
the public. I feel that conflict today.'' Men like Rich
Levernier, Gary Morgan, Don McIntyre, and Jay Stewart are
joined by contractor Security Directors like Bernie Muerrens
and Link White who tried to do the right thing for their
country but were rewarded by replacement or reprisal.
Today, men and women of conscience within the Department of
Energy are falling silent because they do not see support from
the top at a national level, and some simply cannot afford to
go without the income they need to support their families. Mr.
Chairman, these people shouldn't have to choose between doing
the right thing and supporting their families.
As the Director of the Office of Safeguards and Security,
my team has provided senior DOE management with sound judgment
regarding security at our Nation's most critical strategic
nuclear facilities. We have provided specific action plans to
correct shortcomings, sometimes even though much of what we
have recommended has not been welcomed nor considered
politically correct now that the cold war is over.
However, the steady decline in resources available to the
DOE Safeguards and Security Programs, as well as a lack of
priority, or indeed in many cases no priority, have allowed the
Department's security posture to deteriorate to a point where
its effectiveness is highly questionable.
I have included in my written testimony some references to
unclassified reports from the Office of Safeguards and Security
issued between 1994 and 1999, which document the reduction in
the Department's nuclear security readiness. These reports are
supported by hundreds of classified reports which provide
detailed analysis of our sites. The information presented in
the testimony I submit today is not new. The message of lax
security has been repeated consistently over the last decade in
reports prepared by my office, such as the Annual Reports to
the Secretary in 1995, 1996, and 1997. In fact, these reports
were frequently referenced and footnoted in the PFIAB report.
They cite a litany of failed efforts, such as a computer
security regulation that was rejected in 1995 by the
laboratories and their DOE program Assistant Secretaries as too
expensive. This change, which would have only required simple
firewalls, passwords, and prudent business practices, may have
prevented many of the losses of classified information which we
have reported recently and, in fact, would have been less
costly than the several days of shutdowns at our national
laboratories, which we have already seen executed this year, to
try to react to those losses.
The 1997 Annual Report to the Secretary points out that
most of our facilities by that time were no longer capable of
recapturing a nuclear weapon or a nuclear facility if it were
lost to an adversary, and describes the DOE security force as a
hollow force because of excessive reductions in personnel and
in training to our security police officers. Storage facilities
are seen as aging and inadequate, and security alarm systems
increasingly obsolete. These serious deficiencies are described
and contrasted against the backdrop of increased openness to
our sites, increased openness to our data, increased foreign
visitation to both the sites and the security areas within the
sites; increased declassification of information, while at the
same time facing a 30 percent increase in the amount of special
nuclear material which we were required to store, and a 40
percent decrease in our budget.
External reviews such as the earlier report to the
Secretary by General James Freeze, or the Nuclear Command and
Control Staff Oversight cite similar concerns. There have also
been numerous GAO reports. However, the Department has not
chosen to resolve these serious and longstanding problems.
Secretary Richardson recently announced the selection of a
new security czar. Based on the Secretary's announcement, many
of these ongoing concerns could be answered. However, the
Secretary's statements and the actual events occurring within
the Department are strikingly different. A disturbing document
entitled, ``Safeguards and Security Roles and
Responsibilities'' has been circulated by the Under Secretary
and some laboratory proponents that would give the security
czar less authority than I had in the Department for the last
10 years. Specifically, in the proposed structure, critical
approvals would be delegated from the headquarters to the very
laboratories that have allowed critical losses. Important
security plans, as well as exceptions to national and
departmental regulations, would be delegated to the field. And
finally, oversight inspections would be conducted only ``for
cause.''
Based on initial reviews, ladies and gentlemen, this
devolution of the few authorities reserved to the Department is
in direct conflict with the serious negligence identified in
both Congressman Cox's report and that of the PFIAB. It is the
organizational equivalent of sending the fox in to count the
hens. The head of such an eviscerated organization could hardly
be called a czar. This proposal developed by the labs at a cost
of almost $2 million is a perfect example of the organizational
and policy interference by the labs that is well documented, I
believe, also in the PFIAB report. It begs the question, who is
in charge?
May I have 30 seconds to close, sir?
Mr. Burton. Yes.
Colonel McCallum. Mr. Chairman, although the DOE security
policy is carefully coordinated with the interagency through
the U.S. Security Policy Board and is consistent with the DOE
and other high security agencies, it has never been fully or
successfully implemented in the DOE.
The arrogant disregard for regulations and contract
requirements and the long history of denial by the laboratories
and DOE program Assistant Secretaries, have resulted in an
ineffective program of protection and the loss of our Nation's
most critical secrets.
External oversight and separate line item funding--and I
would like to underscore that--external oversight, such as
proposed by the Senate, and separate line item funding for
security are essential if the reform which the Department is
talking about is to be effective.
Meanwhile, the Department's history of harassment and
reprisal has sent a clear warning that the government does not
want to keep or attract its best and brightest. Despite current
legislation, gaps exist in protections where classified
information may be part of the issue. Willful negligence has
flourished in the Department and will continue to do so as long
as officials can hide behind capricious and sometimes malicious
acts under the mantra of national security.
While I place no higher value than duty to my country, some
forum must be identified or chartered to assure that everyone
has a fair and impartial hearing when they bring out
wrongdoing. All of us must have the same right to due process
which we expect as citizens and as provided for by our
Constitution.
Mr. Chairman, career civil servants are charged foremost
with ensuring the public health and safety and the protection
of our environment. However, if civil service is based solely
on a personal or political whim, then the public will be
protected and served only as long as it is politically
expedient to do so.
It is time to accept the responsibility that we have for
nuclear and national security, correct past failures and
rebuild our programs. Thank you, sir.
Mr. Burton. Thank you, Lieutenant Colonel McCallum.
[The prepared statement of Colonel McCallum follows:]
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Mr. Burton. Dr. Leitner.
Dr. Leitner. Mr. Chairman, members of the committee, I
would like to express my appreciation for your collective
concern over the mistreatment of career civil servants
essentially for speaking ``truth to power'' concerning the
systematic pillaging of the United States Defense industrial
base and our Nation's most precious military and nuclear
secrets by the People's Republic of China.
Appearing before you today is both an honor and a rather
dubious distinction. To be victimized by my own government,
particularly the Defense Department, for consistently putting
the near- and long-term national security interests of the
United States ahead of all other considerations, is something
which I still find astounding to this day. I believe that a
deadly combination of corruption, greed, careerism, indolence
and possibly darker motives have brought us to this sad turning
point in the nature of the military threats to the United
States and countries along the Chinese periphery, extending
from the Central Asian republics through the Indian Ocean and
along the Pacific Rim.
My particular story revolves around my documenting evolving
military threats to the United States spurred by reckless
transfers of advanced Western technology, technology capable of
allowing potential military rivals such as the PRC to leapfrog
generations of technological development and trillions of
dollars of expenditures and to field advanced weapons systems
faster than our experts have predicted. I have been
systematically penalized for my initiative and efforts.
From 1986 through 1990, I was consistently praised by DOD
officials for my effectiveness in documenting and persuasively
defending American technology security interests around the
world in international negotiations, but all that changed in
1990. That is when I authored the memo and charts presented as
attachment A to my written testimony. That memo pointed out
dangerous flaws in the methodology DOD was using in determining
which technology to drop from international export control
lists. For the mere act of composing this message for my chain
of command, I was summarily recalled from Paris and ordered to
get on the next flight home, where I was confronted by the
first in a series of DTSA managers who place their personal
interests and career advancement ahead of all else. I was told,
``You are to be placed in a position of least trust in this
organization: licensing.'' A remarkable statement as export
licensing is the raison d'etre for the organization.
After my being banished into licensing, I began to detect a
disturbing pattern of Indian acquisition of United States and
British parts and components for their attempt to build a so-
called indigenous supercomputer. I wrote a paper on this issue
that received the support of the Defense Intelligence Agency
and numerous technical experts. The DOD response: I was barred
from looking at export licenses involving India.
After these two incidents, my performance appraisal dropped
from outstanding to an entire grade lower. My supervisor at the
time told me he was ordered by the Director and Deputy Director
of DSIA not to give me an outstanding rating. He then advised
me that he would lower my written communication category
because, after all, it was my memos that resulted in all of
this.
Earlier that year, I had been told I would be given a
quality step increase as a result of my outstanding
performance. This was quickly scrapped and I was denied a
$2,600 pay raise. This was to be the first in a series of
retaliatory financial sanctions which, in my reckoning, has
cost my family between $75,000 to $100,000 to date, and over
the course of my lifetime, certainly much more. The loss of
income punishes not only me, but also my wife and four
children.
In May 1991, I authored a technical paper entitled,
``Garrett Engines to the PRC: Enabling Its Long-range Cruise
Missile Program.'' The controversy generated by this paper ran
well into 1992 but eventually stopped a potentially disastrous
technology transfer from taking place. The new administration
was fighting tooth and nail to approve the transfer of cruise
missile manufacturing technology to the PRC. While the
technology transfer was prevented and the potential threat to
the United States mitigated, I was nonetheless punished for my
having been right.
In 1994, I wrote a technical paper entitled, ``McDonnell-
Douglas Machine Tool Sales to the PRC: Implications for U.S.
Policy,'' and refused a direct order to change my denial of the
transfer of the Columbus, OH, B-1 bomber/MX missile/C-17 plant
to China. The incident was the subject of a recent 60 Minutes
broadcast.
Later, I co-authored a study entitled, ``Transferring
Stealth Technology to the PRC: Three Pieces to the Chinese
Puzzle.'' This paper revealed how the PRC was targeting United
States companies for technology acquisition with surgical
precision.
Late in 1995, a series of events heralded a new round of
internal retaliation against me. First was the publication of
my first book, ``Decontrolling Strategic Technology, 1990-1992:
Creating the Strategic Threats of the 21st Century.'' The
reaction of DTSA management, after desperate attempts to
prevent publication of the book, was to artificially lower my
performance appraisal and insert all manner of political
language into my civil service rating. I appealed the rating,
and while the score was raised somewhat, the political language
was allowed to stand and I was again penalized financially.
In 1997, reprisals began to intensify upon the publication
of my second book and my being invited to appear before the
Joint Economic Committee to discuss Chinese economic espionage
and strategic technology transfer. Just before the hearing was
to convene, DTSA management held a Directors meeting, where it
was announced that no DTSA employees would be permitted to
attend that hearing, and if any applied for annual leave for
that purpose, it would be denied.
It was in December 1997 that a campaign to further isolate
me began; this time to confiscate my office computers, a laptop
and a desktop. I was told DTSA management was afraid that I may
use the computers to write testimony, books, or articles
critical of DTSA actions or policies. Therefore, DTSA
management reasoned, take the computers away and I will no
longer be able to write or testify.
About this time, I began to see and issue denials for a
large number of export licenses originating with the DOE
sponsored national laboratories. These licenses were to
transfer a variety of high-tech equipment with direct
applications to nuclear weapons development to Russia and
China. I objected then and continue to object today to these
so-called lab-to-lab transfers because there was no evidence of
a security plan to protect U.S. technologies from being used
against us. There was no evidence that the Department of Energy
exercised any credible level of control over these activities.
And after meeting with lab officials, it was apparent to me
that the labs had become entrepreneurial and were creating
programs, as much to resolve the loose nukes program, as it was
to keep themselves employed and to avoid layoffs.
In 1997, I witnessed the intentional orchestration by the
administration of a series of events resulting in the false
certification to Congress that China is not a nuclear
proliferant. This provided the Chinese legal access to many
nuclear technologies to complement that which they were engaged
in stealing.
I am proud to have been associated with Mr. Jonathan Fox,
who had the courage to do what extremely few in government
appear capable of doing these days: that is, recognizing and
telling the truth.
In April 1998, I again appeared before the Joint Economic
Committee to discuss continuing problems with the growing
strategic threat from China. Next I was subpoenaed to appear
before the Senate Governmental Affairs Committee in June. My
Senate testimony resulted in an investigation by the Inspectors
General of six agencies of the management of the export control
process.
In August, I was called before the Cox/Dicks committee
where I testified on the PRC threat and worked very closely
with that staff, providing over 18 inches of documents and
hours of follow-up interviews with staff.
Ever since these testimonies, I have been subjected to, in
staccato fashion, one adverse harassing act after another; the
most prominent of these, further lowering of my performance
rating, attempts to isolate me from attending meetings
concerning nuclear exports--particularly when the IGs were
visiting the interagency meetings as part of the followup on
the Senate-requested investigations--a trumped-up letter of
reprimand; sick leave harassment; a falsified charge of
security violation, Colonel McCallum is well aware of how that
affects you; and implied threats to charge me with
insubordination or defiance of authority.
These actions were deemed so serious that Senator Thompson
twice wrote to the Pentagon, including to Secretary Cohen,
expressing concern for his witness. In addition, the Office of
Special Counsel has accepted my case for a full investigation
of political reprisals and illegal retaliation.
The politization of the career civil service is an
extraordinarily dangerous and insidious process aimed at co-
opting, bypassing or eliminating unbiased professionals.
Without a nonpartisan professional civil service, this Nation
will be subjected to wild mood swings and radical policy
changes that will wreak havoc. The professional career civil
service is, in a manner of speaking, a dampening force, or, the
Ritalin in the body politic which prevents dangerous and
intemperate initiatives from getting out of control.
DOD routinely engages in two questionable personnel
practices: the militarization of DOD's civil service, by
allowing widespread conversions of military personnel to
civilian positions; and the inappropriate, possibly illegal
use, of the Intergovernmental Personnel Act to directly appoint
individuals without competition and avoid ceilings on political
appointments. In many cases, particularly within the Defense
Threat Reduction Agency, civil servants with decades of
expertise in strategic weapons programs were shoved aside and
demoted, while DOE lab employees were brought in to fill their
posts.
Between downsizing, contracting out, military rehires, and
the abuse of the IPA program, the fundamental relationship and
connectedness of government to the general population is being
radically altered.
I would like to call upon members of the Civil Service
Oversight Committee to investigate the developments I have just
described and prepare a legislative remedy to ensure that the
congressional vision of the character of the career civil
service and its importance to a free and open society is
mirrored by reality.
In the meantime, Congress should act swiftly to ensure that
the pay cap on double dipping by retired military personnel be
kept firmly in place. Removing the dual-compensation ceiling
will only exacerbate the problems I have outlined above.
It has been almost exactly a year to the date, June 28,
1998, that I gave sworn testimony before the Senate
Governmental Affairs Committee on the sad state of the export
control process. It was 1 year prior to that testimony when
Michael Maloof and I went to the DOD Inspector General's office
to request a formal investigation of technology transfer to
China and the national security threats it was creating. We
were quite surprised when an IG Division Director said he was
not interested in what we had to say and bluntly asked us to
leave; simply threw us out.
Is it any wonder that almost 10 months after Senator
Thompson directed the IGs of the Defense, Commerce, State,
Energy, Treasury, and CIA to undertake an extensive review of
the export licensing process, that the DOD report is very weak?
It does not reflect many of the issues brought up by DOD
personnel.
Should I be surprised that of the six IGs directed to
followup on the concerns I expressed to the committee, only
one, the DOD IG, even attempted to contact me? While I spent
many hours speaking to the DOD IG, the reams of evidence I
presented were minimized or shrugged off with statements like,
``It is beyond the scope of our audit.''
In fact, the Air Force's preliminary review of the draft
report excoriated the IG on many issues.
Tragically, nowhere in this government are analyses being
performed to assess the overall strategic and military impact
of these technology decontrols I described in my testimony
before the Joint Economic Committee. Nor are any analyses being
performed on the impact of the day-to-day technology releases
being made by the dysfunctional export licensing process. Yet
it is precisely at the big-picture level where the overall
degradation of our national security will be revealed. Without
such assessments, the government will continue to blunder
along, endangering the lives of our citizens unnecessarily.
On three separate occasions, I formally recommended the
creation of a modeling simulation and research branch which
would be dedicated to conducting such cumulative and tactical
impact assessments. To date, the only cumulative impact
assessments created within DTSA are those which I undertook
independently and for which I was routinely subjected to
reprisal.
It is amazing to me how much time and effort has been spent
on attempts to break or contain me, rather than monitor,
analyze and protect our national security. I cannot begin to
count the number of times I have been asked, ``How do you put
up with this treatment? How do you manage to survive in that
environment?'' Of course, the correct question should be: Why
are people with such mean and self-serving agendas allowed to
flourish, even be rewarded, for engaging in such ruthless and
destructive behavior?
As with the case of the six IGs, where only one deigned to
contact me regarding the concerns I expressed to the Senate,
why is it that at no time over these past 9 years has even one
DOD official in my chain of command called me in to hear and
perhaps even address the issues I raised? Even though DOD
officialdom has been summoned to testify in open hearings and
respond to my congressional testimony, I have yet to be called
or invited to speak with anyone inside the Defense Department.
Rather than address the issues, DOD's hierarchy appears more
comfortable with targeting me for their minions to exact
punishment and penalties, with the apparent goal of destroying
my career.
I am well aware that every move I make is being
intentionally misconstrued by several henchmen within my
organization as part of some next step in the retaliation
process. The increasingly politicized and compliant bureaucracy
cannot be relied upon to restore balance to the system. Only
detailed and vigorous congressional oversight is capable of
preventing these excesses and the dangerous legacy from
undermining our children's future. Thank you.
Mr. Burton. Thank you, Dr. Leitner. Very illuminating.
[The prepared statement of Dr. Leitner follows:]
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Mr. Burton. Mr. Maloof.
Mr. Maloof. Thank you.
Mr. Chairman, members of the committee, I am appearing
today in response to a subpoena from the committee. My name is
F. Michael Maloof. I am Chief of the Technology Security
Operations Division in the Technology Security Directorate of
the Defense Threat Reduction Agency in the Department of
Defense.
You asked that I address the administration's effort to
curb the flow of dual-use technology to China and efforts to
safeguard United States facilities. You also asked for my
testimony on intimidation or retaliation against government
employees who have been involved in these policy areas and have
expressed either reservation or opposition to administration
policies. I am not in a position to discuss the
administration's effort to safeguard U.S. facilities. However,
I can address the issues of dual-use technology flows to China
and intimidation.
By way of brief background, Mr. Chairman, I have been with
the Department of Defense since 1982. I have been a member of
the senior management in the Technology Security Directorate
since the creation of the Defense Threat Reduction Agency last
year. Before that, I had been Director, since May 1985, of
Technology Security Operations in the Defense Technology
Security Administration when it was in the Office of the
Secretary of Defense.
The duties of my staff are to work with other agencies to
monitor and to act as a catalyst to halt the diversion of
sensitive technology to prescribed destinations, their weapons
of mass destruction, and strategic conventional weapons
development programs.
From the data collected and detailed analysis conducted
relating to diversion activity, my staff determines what
technologies are being targeted, and by whom, and then
identifies and develops policy issues and appropriate
responses.
In this connection, my office also works closely with the
intelligence community and enforcement agencies. This was the
case during the cold war during which we were responsible for
halting diversions of sensitive technologies to COCOM
proscribed countries of the former Soviet Union and Warsaw
Pact, as well as China.
One of our major cases during that period was the highly
publicized Toshiba case in which the former Soviet Union
illegally acquired militarily sensitive embargoed technology
used in manufacturing specially skewed propellers to quiet
submarines and thereby prevent their detection. Our efforts not
only included the detection of this development, but working
with the governments of other COCOM members, we were able to
stop further Western assistance to that program.
During Desert Shield and Desert Storm, my staff, along with
a Naval intelligence reserve unit assigned to our organization,
identified, analyzed, and sought to halt Western technologies
on which Iraq depended for its conventional and unconventional
weapons development programs. One of those cases involved
uncovering the diversion of sensitive night vision devices to
Iraq by a Dutch company. The timeliness of this discovery
allowed for appropriate countermeasures to be developed and
delivered to our troops on the ground prior to the start of
Desert Storm. I like to believe that our efforts resulted in
saving the lives of many of our troops.
Another case involved the ultimate seizure by United States
Customs of a high-temperature furnace which was about to be
exported to Iraq. It was to be combined with a number of other
uncontrolled furnaces to form a complex for the melting of
materials essential for nuclear weapons development.
After the Gulf war, this case served as a basis for
expanding export regulations to include a catch-all provision
for uncontrolled technologies with application for chemical and
biological weapons development and their delivery systems.
The duties of my office also include doing end-user and
end-use checks for license applications, whether dual-use or
munitions. We make every effort to apply analysis, information
from the intelligence community and enforcement data to every
application.
With this background, Mr. Chairman, it was natural for me
in the early 1990's to raise concerns with my management over
what I would call the beginning of wholesale liberalization and
decontrol of militarily critical technologies without the
benefit of thorough strategic analysis. In my opinion, such
sweeping initiatives made virtually irrelevant any analysis as
to their strategic consequence. Technologies included such
areas as machine tools, high-performance computers,
telecommunications, propulsion for power projection, stealth
and technologies with application for nuclear uses.
Even though we were undergoing a change in policy, it was
apparent that it was designed to allow greater technologies to
go to China. This policy change assumed a good end-user/end-
use. In China, that was almost impossible to detail since
Chinese officials had placed a ban on United States officials
from undertaking prelicense and postdelivery shipment checks
for sensitive technology exports.
The previous policy, in coordination with the Joint Chiefs
of Staff, had identified six special mission areas for which
technologies for any one of them would be subject to close
scrutiny, regardless of end-user and end-use.
On a number of occasions, I had suggested to my management
that a policy review of these special mission areas was
necessary to update them and steer away from what I believe was
a questionable end-user/end-use approach.
I also expressed concern many times with my front office
about not escalating cases on which we initially would
recommend denial in interagency appeal sessions. All that the
other agencies had to do was wait us out, knowing that our
front office would not escalate a serious case to higher level
policymakers, and it would be approved.
In addition, I suggested on numerous occasions that we
needed to undertake cumulative impact assessments of those
technologies which had been approved to determine the strategic
impact of those exports.
One of a number of such cases which manifested all of these
concerns was the export in 1994 to China of a considerable
number of controlled and uncontrolled machine tools from the
McDonnell-Douglas facility in Columbus, OH. Dr. Leitner and I
recommended denial on this case.
My concern here was over the potential for diversion of
some or all of these machine tools, and that is exactly what
happened. And because that case, almost 5 years later, still is
under criminal investigation by the Justice Department, I guess
it would not be appropriate for me to go into detail of it
here.
So it is not surprising that my management would regard me
and my views on China as a ``Cold war throwback who can't
reconcile himself to the inevitable easing of export
controls,'' according to the attached November 27, 1998, Wall
Street Journal.
My concerns, however, were and remain over the strategic
impact of these exports, not the commercial advantage they
would give to certain companies.
I can only presume that it is this perspective which led to
an open clash between me and my management over China,
beginning in April 1998, over the Hughes-Loral satellite
matter.
A New York Times article had detailed how the
administration was allowing further space activities with
China, despite the fact that a grand jury was meeting
concerning the possible illegal release of sensitive technical
data to the Chinese.
The technical data involved assisting China in solving
certain guidance problems of rockets used to orbit commercial
satellites. On the day of the New York Times piece, I received
a call from Assistant Secretary of Defense for Public Affairs,
Ken Bacon. He said he wanted to know what was behind the story,
that the Secretary of Defense had been having breakfast with
reporters and was, ``blind-sided,'' by events surrounding this
story.
I gave him a brief summary. He called back later for more
details and I offered to go to his office to show him what we
had on the case as background for the Secretary. He accepted. I
also informed my front office.
The initial front office reaction was that no materials
were going to be provided to Mr. Bacon. Later, Mr. Bacon called
my front office and it was agreed that my boss would take the
meeting with Mr. Bacon but I was not to accompany him. My boss
said that he had to inform Mr. Bacon of events which were
occurring on this case, but he would not elaborate.
I then received a call from an individual in C3I inquiring
about the background of the news story. That individual did an
electronic mail summary to her boss. My front office obtained a
copy. I was called in, asked why I discussed the issue on
something which I was not working.
I corrected my bosses and informed them that we had been
involved earlier in the process and I had some 10 volumes of
binders from the exporters in my office to prove it. The
immediate response was disbelief and a further admonition that
I had not been working on the issue.
This comment was my first indication that issues relating
to satellites were being handled but only by a few people in
our entire organization, with my office being bypassed for the
most part. Furthermore, my front office accused me of using,
``poor judgment,'' in talking to the individual at C3I. This
reaction and its vitriolic tone took me totally by surprise.
I sought to obtain what the New York Times described as a
``highly classified Pentagon report,'' on the satellite issue,
but was informed that I could not have access to it since I did
not have a ``need to know.'' It is my understanding that the
report developed in cooperation with the Department of State
was very critical of certain U.S. satellite exporters.
Indeed, in subsequent cases relating to China, my front
office continued to use this mantra of not having ``a need to
know,'' as justification to keep me from learning details or
the outcome of certain China cases, many of which I had worked
on at various stages.
I expressed my dismay to the front office over this kind of
treatment. I informed them that in all the years I had worked
at the Department of Defense and looked into possible
diversions, I never had been told to refrain from looking into
a possible export control violation.
Despite the admonition not to speak to anyone about the
Hughes-Loral matter, I called our U.S. Customs liaison officer,
who confirmed that there had been an ongoing Justice Department
investigation of the case for almost a year. Customs was
pursuing the investigation on behalf of the Justice Department.
He further stated that continued approval of satellite exports
was damaging the case. It then became apparent to me that the
reason for handling Chinese satellite issues among a very few
people and keeping quiet any information concerning an
investigation was to ensure that satellite cases continued to
be approved, unimpeded.
I can only surmise that my front office recalled previous
cases in which we had suspended all license applications of an
applicant prior to any indictments or convictions even before
the completion of an investigation. There were two other cases,
one of which involved the Dutch company diversion of night
vision devices to Iraq, a case I referred to earlier. Given the
admonition not to speak to anyone outside of DTSA about the
Hughes-Loral matter, I did not think such a restriction applied
to people within DTSA.
I approached our satellite technical expert who immediately
became quite nervous. I specifically wanted to know if we were
seeing any of the Presidential waivers and what technologies
they may have encompassed. The waivers were required because of
Tiananmen Square sanctions to satellite exports to China. The
engineer stated that he was under a gag order, had been
interviewed a year earlier by the Justice Department concerning
its investigation, and that our boss had known about the
investigation for all that time.
In response, the engineer said that our boss had
electronically ``firewalled,'' any recommendations to the front
office that he had made on the cases so that even he could not
retrieve them. In addition, the engineer said that he had been
ordered to destroy any hard copy of his recommendations. As a
career employee, I felt obliged to report this episode to the
U.S. Customs agents who were investigating the Hughes-Loral
matter on behalf of the Justice Department. By this time, I had
been working with the investigators to provide background
papers and positions on previous cases, all relating to China.
The Assistant U.S. Attorney and Customs investigators
interviewed the engineer. He returned after a number of hours,
confronted me and said that the Assistant U.S. Attorney and
Customs agents had identified me as the source of their
information. The engineer then proceeded to inform the front
office.
All of this took place in April 1998. It was during this
period and succeeding months that all of our records pertaining
to China, including past cases, were subpoenaed by law
enforcement authorities. The same materials were made available
in the central reading room, under the control of the Defense
Department General Counsel, to the myriad of congressional
committee investigators from the House of Representatives and
the Senate.
I personally received two congressional subpoenas, one from
Senator Fred Thompson, chairman of the Senate Governmental
Affairs Committee, and the other from Representative
Christopher Cox. All of my records pertaining to China also
were in the hands of the Cox committee, and I was asked about
them in depositions to the committee staff.
Since then, the front office has systematically isolated me
from any of the major issues with which our organization is
involved. In seeking to find out what those issues are, my
bosses interpreted my inquires as ``spying,'' and asked me why
I wanted to know. In addition, virtually all weekly Directors'
meetings had ceased, which remains the case to this day.
The front office also had created a so-called COMSAT group
comprised of representatives from every division within DTSA,
except mine. My staff and I were kept from any satellite
discussions.
This also was the period in which job appraisals were due.
I was informed that I would be given an outstanding rating but
would not be given a cash bonus. I later was informed that I
was the only DTSA Director who received an outstanding rating
but did not receive any cash bonus.
The reason given was that I needed to do more work in
keeping with senior DTSA management priorities. I asked my
bosses how I could be accused of spying, on the one hand, to
determine DTSA priorities, but be admonished for not following
them in view of the isolation treatment. There was no ready
answer.
In my opinion, this act constituted political retribution.
The isolation continues to this day. Discussion and action on
issues are conducted by the front office, with the
participation of a chosen few.
In addition, as people have rotated from my staff, the
positions either are not allowed to be filled or the billet is
taken away. This was the case recently when one of my Navy
personnel retired. This billet was transferred to accommodate
an increase in satellite monitors. Congress recently authorized
some 30-such billets to DTSA. I then asked if that slot could
be returned due to the need we had to fulfill our analytical
and monitoring duties. I never received a response.
My Deputy of many years recently transferred to another
part of the agency, but to this day the front office has not
allowed me to fill that billet either. Instead, I have had to
write a series of memos to justify the need to fill it. Still,
no response. This slow chipping away comes at a time when we
should be doing more analysis and cumulative assessments of
technology transfers and determining their impact on U.S.
strategic capabilities.
In my opinion, this is one of the value-added roles of the
Department of Defense in the export licensing process.
Mr. Burton. Mr. Maloof, I am sorry to interrupt you but we
are trying to stay as close to the 10 minutes as we can. Could
you wrap up here? And anything else that you have, we will
submit for the record. I don't want to miss any of your
testimony, but we do have to finish.
Mr. Maloof. OK. Fine.
I would say that in terms of looking for cumulative
assessments, Mr. Chairman, I went ahead and started doing my
own cumulative assessments because we just did not have that
kind of information available over time. I would add that the
intelligence community, in my view, still does not look at
technology transfers as they used to during the 1980's, and in
that context the types of technologies that we have seen going
to the Chinese over time have filled many areas that we warned
about, particularly in terms of ballistic missiles, modernizing
its military.
It has also gone for improvement of power projection for
surface fleets, making more proficient fighters and bomber
aircraft. And these advances, Mr. Chairman, happen to coincide
with those special mission areas identified early in the mid-
eighties by the Joint Chiefs of Staff to be concerned about
regarding tech transfers.
In referring back to what Mr. Ken Bacon said in that Wall
Street Journal article, Mr. Chairman, the Defense Secretary's
spokesman said in talking to Maloof's bosses and others, ``We
do not believe we have allowed the transfer of technology to
China that presents national security vulnerabilities.''
I would suggest that this conclusion is at extreme variance
with the results of the Cox committee study. I have come to
realize that there is little recourse for professionals to
sound an alarm when the system is unresponsive. I am equally
dismayed over the magnitude of the strategic contributions from
cumulative technology transfer to China, that they have
occurred on my watch, even though I sought to avoid such a
development, but instead was isolated, ignored, and subject to
political retribution.
The tragedy is not what is being done to me now. The real
tragedy is that we will not realize the full military impact
and national security threat from these technology transfers
for another 5 to 10 years. Only then will we understand the
extent and true cost for having mortgaged the security of our
children and our Nation's well-being.
Thank you, Mr. Chairman.
Mr. Burton. Thank you, Mr. Maloof.
[The prepared statement of Mr. Maloof follows:]
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Mr. Burton. Mr. Fox.
Mr. Fox. Thank you, Mr. Chairman.
Mr. Burton. Mr. Fox, prior to your comments, let me just
say that I understand that your statement does not go into the
October 1997 memo and who asked you to write it and what you
wrote and what happened afterwards. So at the conclusion of
your remarks, I wish you would allude to that.
Mr. Fox. Thank you very much, Mr. Chairman. I certainly
will.
Mr. Burton. I just want to state to all of you prior to
your testifying, that if there is any indication of retaliation
or reprisals because of your testimony, I want you to
immediately contact my office and we will look into it, because
I don't think you or your families should be penalized in any
way for doing your duty.
Mr. Burton. Mr. Fox.
Mr. Fox. Thank you very much, Mr. Chairman.
Mr. Chairman, Members of this honorable House, I am obliged
to appear before you today by order of subpoena. I have neither
sought nor solicited this honor. It is an obligation on my part
which has arisen through disclosures of a public and
independent nature over which I have had no control or
influence. It is an obligation not without risk, and I would be
less than honest if I did not admit that it is undertaken with
no small concern for my personal and professional future
prospects.
Duty compels me to be here today. It is a duty enforced by
the oath I took as an attorney, and as a member of the public
service. In its simplest form, it is the duty to obey the law.
It is the obligation to afford the workings of the law and that
of a duly constituted legislative inquiry the utmost respect,
and it is the duty to execute those responsibilities entrusted
to me without fear or favor.
It is incumbent upon me to tell the truth. It is a key
responsibility of public service. I am prepared to answer
whatever questions you may have with candor and honesty. My
answers will be grounded upon direct knowledge, information,
and belief. I cannot speculate upon things of which I have no
knowledge and will respectfully decline to do so if called
upon. Unfounded speculation will only hinder the progress and
credibility of this inquiry, and my respect for this House is
too great to engage in such conduct.
Two hundred years ago, President John Adams advised his son
John Quincy to ``never let the institutions of polite society
substitute for honesty, integrity, and character.'' My father,
a concentration camp survivor, memorized that phrase and taught
it to me when I was very young. I have always tried to comport
my career in public service according to that standard. Whether
I have succeeded will be determined to no small extent by the
impressions you carry away from today's proceedings.
Mr. Chairman, I am the most unlikely rebel. I make no
pretensions to any excessive nobility or courage. Whatever
distinction I possess in this area is entirely due to the
company I find myself in today, and I thank Mr. Maloof and Dr.
Leitner for publicly standing by me when few other of my
colleagues would.
Mr. Chairman, and members of this committee, this concludes
my formal prepared opening statement. Thank you for your kind
indulgence. I am prepared to answer any questions you may have.
[The prepared statement of Mr. Fox follows:]
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Mr. Fox. I am informed by correspondence from the Office of
Secretary of Defense General Counsel that any document requests
arising from my testimony must be referred to them, and
therefore I am not authorized to release any official documents
on my own volition.
Now, to the points that you asked me to raise, Mr.
Chairman, as a supplement to my prepared opening statement.
In October 1997, I served as the DOD technical advisor on
behalf of my then-existing agency, the Defense Special Weapons
Agency, to the Interagency Subcommittee on Nuclear Export
Controls. It was my job, it had been my job since approximately
November 1996, to provide technical review to the various
proposed nuclear technology and nuclear material transfer
arrangements that are governed by the Atomic Energy Act and the
Nuclear Nonproliferation Act.
In October 1997, particularly the week of October 23, 1997,
a request for such a review came across my desk. That review
concerned a subsequent arrangement of nuclear technology that
had been negotiated or proposed under the 1985 Agreement for
Cooperation and the Peaceful Uses of Atomic Energy negotiated
between the United States and China. As part of the
implementation of this agreement, Congress mandated that the
President of the United States must certify that any subsequent
reciprocal arrangements or technology transfers, particularly
concerning nuclear technology, concluded under that agreement,
must be designed to effectively ensure that any nuclear
materials, facilities, or components provided be utilized
solely for peaceful purposes. Congress also determined that
arrangements concerning information exchanges and visits
negotiated under that agreement would be deemed subsequent
arrangements, personal intersection 131-A of the Atomic Energy
Act of 1954, as amended, and subject to the required findings
and determinations defined under that act.
As the parties to the 1985 United States and Chinese
Agreement for Cooperation on the Peaceful Uses of Atomic Energy
were both nuclear weapons states, diplomatic channels
establishing mutually acceptable information exchange and
visitor arrangements were to be utilized in lieu of bilateral
safeguard provisions.
I received the request for this technical review on, I
believe, a Tuesday or a Wednesday. The request had a deadline
of that Friday, October 24, 1997, with the proviso that all
reviews must be in, must have been completed, by that date in
anticipation of the arrival of the Chinese Premier for a summit
to begin the following Sunday.
I reviewed the agreement pursuant to a memorandum of
understanding which I had written, as a matter of fact, in
1996, a memorandum of understanding which provided technical
support for the Office of Secretary of Defense Policy Division
and which allowed our office--and which provided for our office
to provide technical assistance and evaluative support for such
nuclear technology transfers.
I reviewed the proposed information exchange and technology
transfer agreement proposed between the United States and the
People's Republic of China and concluded, after my review, that
the statutory and regulatory requirements dictated by the
Atomic Energy Act and the Nuclear Nonproliferation Act had not
been met and that I could not, in good conscience, from a
technological viewpoint, certify that the proposed agreement
did not pose a risk of nuclear weapons and nuclear military
technology proliferation. The United States and China had
negotiated an information exchange and technical cooperation
reciprocal arrangement. The Department of Energy requested
consultative review of this proposed implementing arrangement,
in compliance with the provisions of the Nuclear
Nonproliferation Act of 1978.
I conducted my review and I detailed the results of our
technical assessment. The terms of the then-reciprocal
arrangement were relatively simple and direct. The United
States and China would be afforded annual opportunities to send
technical experts to each other's civil reactor sites, observe
operations in reactor fueling, exchange and share technical
information in the operation and maintenance of nuclear power
generated at associated facilities, exchange detailed
confidence-building and transparency information on the
transfer, storage and disposition of fissionable fuels utilized
for ostensibly peaceful purposes, and disclose detailed reactor
site operational data to include energy-generated end-loading.
The criteria that I was authorized to utilize under the
support agreement memorandum of understanding was likewise
relatively simple and straightforward. Section 131 of the
Atomic Energy Act and related legislation such as the Nuclear
Nonproliferation Act required a rather thorough inquiry into
such arrangements, such proposed arrangements.
The inquiry had to address whether the contemplated state
action will result in a significant increase of the risk of
nuclear weapons technology proliferation. It also had to
consider whether the information and expertise shared under the
proposed arrangement could be diverted to either a nonnuclear
state for use in the development of a nuclear explosive device
and whether the United States could maintain an environment
where it would obtain timely wording of the imminence of such
diversion.
This process was both objective and subjective to no small
extent. Namely, in light of the answers given to those two
preceding questions, would the arrangement as proposed not be
inimical to the common defense and security?
My assessment concluded that the proposed arrangement
presented real and substantial risk to the common defense and
security of both the United States and allied countries, an
assessment and a conclusion I continue to stand by today.
I further found that the contemplated action proposed in
1997 could result in a significant increase of the risk of
nuclear weapons technology proliferation. I similarly concluded
that the environment surrounding these exchange measures could
not guarantee timely warning of willful diversion of otherwise
confidential information to non-nuclear states for nuclear
weapons development.
Concurrently, the agreement as then presented to both us
and as ultimately presented to the U.S. Congress, could not
ensure that whatever was provided under this reciprocal
arrangement could be utilized solely for intended peaceful
purposes.
At the time I made this assessment, I was not unmindful of
the political consequences and the political importance
attached to this agreement.
However, the very nature of this contemplated arrangement,
in my opinion, required a significant examination of the past
state practices of the prime beneficiary of what I believed, in
final analysis, to be a technology transfer agreement swaddled
in the comforting yet misleading terminology of a confidence-
building measure. Inarguably I believe that the People's
Republic of China benefited most from what technical
information would be generated by these exchanges. I believed
then and I continue to believe today that a review of state
action particularly in technology transfers concerning nuclear
technology and nuclear materials, where the sole guarantee of
nondiversion would be diplomatic representations, required a
review of past state actions of a prime beneficiary.
Mr. Burton. Pardon me for interrupting, Mr. Fox. Mr. Shays
is going to cover some of this in his questioning. So I think
what we will do now, since the time has run out is, we will
recognize Mr. Shays. We've got a vote that is going to be 15
minutes, I think you might be able to conclude your questioning
before we do that.
Mr. Shays. I would be happy to do that.
Mr. Burton. Mr. Shays.
Mr. Shays. First I thank all of our witnesses, and I know
it's very difficult for all of you to be here, and when you
serve your country and you serve your country well, to have
people question it, it must, one, boggle your mind, and, two,
make you very angry, and, three, be very hurtful as well.
Mr. Fox, I know you not to be a willing witness in the
sense you would just as soon not be here, and I also know that
you have a spouse who works in the Government, and it is not
easy to do something that might endanger your career or your
wife's career, and I also know that you're here to answer,
hopefully, the questions that are going to be put before you.
What I would request is that the memo that you sent be put
up on the screen. I believe this is the memo that you wrote.
It's kind of small up there. Is this the memo that you are
referring to in your testimony? You can see it on the screen.
[The information referred to follows:]
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Mr. Fox. Yes, it is. This is a copy of the memo of--a
rather poor copy, but a copy nonetheless, of the memo I wrote.
Mr. Shays. And the first page I see on the right, keep. Who
is that? Who wrote that?
Mr. Fox. The notations in the margin are my words. Those
are my notes on the memo, and those originate from a discussion
that I had with my then superior in OSD policy.
Mr. Shays. And you need to identify your superior.
Mr. Fox. Mr. Michael Johnson.
Mr. Shays. Now, Mr. Michael Johnson had taken a look at
this memorandum that you wrote?
Mr. Fox. Yes.
Mr. Shays. And had attempted to reach you just casually, or
did he want to speak to you about this memorandum?
Mr. Fox. No, oh, he wanted to speak to me about this. I had
completed my memo. I completed my analysis recommending the
nonapproval of the Chinese technology transfer.
Mr. Shays. I'm going to have you read a paragraph, but the
bottom line is, he wanted to speak to you. He contacted you
once, he called again, and you finally called him.
Mr. Fox. Yes. I sent the memo in Thursday night. Friday
morning, on my way to the weekly Interagency Subcommittee on
Nuclear Export Controls, he attempted to reach me several times
and finally reached me through our divisional secretary.
Mr. Shays. And was he pleased with what he read?
Mr. Fox. No. He was quite upset as a matter of fact.
Mr. Shays. Why would he be upset?
Mr. Fox. When I finally did get a chance to speak to him,
he indicated that this was not what was being looked for. He
indicated that in light of my memo, I would be lucky if I still
had my job by the end of the day. He indicated that.
Mr. Shays. Was that with a laugh, you know, ha, ha?
Mr. Fox. No, it was not a joke, I assure you, and it was
not communicated to me in a joking manner, and I did not take
it in a joking manner.
Mr. Shays. OK. He got your attention?
Mr. Fox. Oh, he certainly did. Not being independently
wealthy, any attempt to cut short my income----
Mr. Shays. You took him seriously, and he wasn't happy, and
what did he want you to do, throw away your memorandum?
Mr. Fox. No. He indicated that the matter having been
decided far above our pay grade, he wanted me to change my
memorandum in order to have it reflect a more appropriate
conclusion.
Mr. Shays. OK. And now he's not even claiming that it was
his decision, he's saying someone else above his pay level?
Mr. Fox. Yes, and that is why, sir, I have never held the
gentleman personally responsible, and I've never held any ill
will against him. I believe that this was dictated far above
our mutual levels.
Mr. Shays. I don't have a sense you have any ill will
against anyone at the moment, but what I do understand is that
he then, what, went through the memorandum with you?
Mr. Fox. Yes, he did.
Mr. Shays. Paragraph by paragraph?
Mr. Fox. Yes, he did.
Mr. Shays. So I assume--the ``keep'' was that he was
comfortable--explain what the ``keep'' means.
Mr. Fox. Yes. What had happened was that we spoke, and
ultimately what was decided was that he wanted from the second
page on, the portion with the line drawn----
Mr. Shays. Let's go to the second page, if you can.
Mr. Fox [continuing]. To be deleted entirely of my
substantive judgment.
Mr. Shays. Was that your line or his line?
Mr. Fox. That was his line.
Mr. Shays. Pretty clear then.
Let's go to the next page. The third page has another line.
So all of that is highlighting, saying out it goes?
Mr. Fox. Yes, sir.
Mr. Shays. Now, did Johnson give you any indication of what
outcome he wanted from your memorandum?
Mr. Fox. Yes, he did. What happened was when I was
ultimately counseled by various colleagues to indeed not fall
on my sword, but rather----
Mr. Shays. No, I want to know what outcome did he want. You
said this was not a good agreement. What outcome did he want?
Mr. Fox. He wanted the memorandum to reflect that there
would be no inimical impact upon national security.
Mr. Shays. I'm going to ask you to read in the second page
that whole paragraph starting with, this assessment concludes.
Mr. Fox [reads]:
This assessment concludes that the proposed arrangement
presents real and substantial risk to the common defense and
security of both the United States and the allied countries. It
is further found that the contemplated action can result in a
significant increase of the risk of nuclear weapons technology
proliferation.
The assessment similarly concludes that the environment
surrounding the exchange measures cannot guarantee timely
warning of willful diversion of otherwise confidential
information to nonnuclear states for nuclear weapons
development. Concurrently, the agreement as presented cannot
ensure that whatever is provided under this reciprocal
arrangement will be utilized solely for intended peaceful
purposes.
Mr. Shays. Now the question is, did you know that there was
supposed to be an outcome before you wrote this?
Mr. Fox. No, I did not.
Mr. Shays. So you did what you thought you were supposed to
do, come to an assessment as was your responsibility. What was
your title at the time?
Mr. Fox. My title at the time was arms control specialist;
I was an arms control specialist with this additional duty
assigned. My title was export control coordinator, something of
that nature.
Mr. Shays. So you were doing your job?
Mr. Fox. I was doing what was assigned to me as well as an
additional duty to my primary duties.
Mr. Shays. Now, we could have you read other parts of it,
but it's pretty clear that you were saying this was not an
agreement that should be carried forward. You were being told
that they wanted the exact opposite conclusion.
Mr. Fox. Yes, sir.
Mr. Shays. So what I would like is, where did they ask you
to insert it? In place of what was crossed out, is that what
was asked to be inserted?
Mr. Fox. Yes, sir.
Mr. Shays. Do you have that in front of you?
Mr. Fox. I certainly do.
Mr. Shays. Now, was that something you wrote or something
someone else wrote?
Mr. Fox. This was language that was provided to me by Mr.
Johnson.
Mr. Shays. Now, did you feel comfortable signing this?
Mr. Fox. No, I did not.
Mr. Shays. Tell me why you didn't feel comfortable signing
it.
Mr. Fox. Because I believed that it was not true.
Mr. Shays. You were being asked by your superiors to say
something that wasn't true. In other words, a whole 180 degree
turn?
Mr. Fox. Yes, sir, except when this memo was to be--when
the new memo was to be submitted, I was specifically directed
not to sign it, but to have a more senior individual sign it.
My signature on this memo would be too blatant an appearance
that I had been indeed coerced into changing my mind.
Mr. Shays. We're running out of time. I just hope that
further questions just talk about what happened after, to you
personally.
Are you still continuing in the same role?
Mr. Fox. No, sir, I am not, and I have not, with one
exception, since October 1998.
Mr. Shays. Mr. Chairman, I would yield back.
Mr. Burton. Would the gentleman yield to me real quick?
Dr. Leitner, I understand you were at that meeting.
Dr. Leitner. Yes, sir; yes, I was.
Mr. Burton. And you can verify what Mr. Fox is saying?
Dr. Leitner. Yes, I was there; in fact, Mr. Fox comes----
Mr. Burton. We've got to run and vote. I just want to
quickly ask a couple of questions, then we will come back after
we vote.
So the memo regarding our national security, the assessment
was made that this was a risk to our national security, was
changed 180 degrees from somebody higher up above this fellow's
pay level, because, in your judgment, we have the President of
China coming over the next week, and they didn't want to upset
the apple cart?
Dr. Leitner. Yes, sir.
Mr. Burton. Is that your judgment?
Mr. Fox. I was told that specifically, sir.
Mr. Burton. I thank the gentleman for yielding.
We will be back in about 10 minutes.
[Recess.]
Mr. Burton. We will reconvene. There will be Members coming
back into the room. When we have a vote like this, people get
strung out, so if we can have the witnesses back at the table.
I ask unanimous consent that all exhibits and materials
referred to during the hearing be included in the record, and
without objection so ordered.
We will now recognize the distinguished gentleman from
California, Mr. Horn, for questioning. Mr. Horn.
Mr. Horn. Thank you very much, Mr. Chairman.
Colonel McCallum, as I recall, you served in Vietnam, and
you were decorated in Vietnam, I believe.
Colonel McCallum. Yes, sir, that's true.
Mr. Horn. And for your work in intelligence, you also have
been awarded in your civilian capacity; is that correct?
Colonel McCallum. That's correct, sir.
Mr. Horn. And is this the first time when--the examples
that you've shown us and testified on under oath--that you've
ever had your work really questioned; is that not correct?
Colonel McCallum. I believe that's the case, sir.
Mr. Horn. Let me go down the lines of the procedures that
the Department of Energy is supposed to follow in a situation
such as they were creating for you.
There's--it's on the various charts over here, and if you
don't have it--yes, it's that document in front of you. I just
want to go down the line with a yes/no answer.
Did the Department of Energy in reviewing your situation
make a determination if information in question is properly
classified; did they or didn't they?
Colonel McCallum. They did not, sir.
Mr. Horn. Did a Security Director interview you, the
employee?
Colonel McCallum. I have never been interviewed.
Mr. Horn. The third one is the Director of Security makes a
recommendation to the employee's managers. Did that ever
happen?
Colonel McCallum. No, Mr. Congressman, that did not.
Mr. Horn. No. 4, after consultation with the Director of
Office of Safeguards and Security, the manager either
terminates the process in the employee's favor or begins an
administrative review proceeding. Did that happen?
Colonel McCallum. No, sir, it did not.
Mr. Horn. And presumably within 2 days of beginning such a
proceeding, the manager shall suspend the employee's security
clearance. That never happened?
Colonel McCallum. That has never happened, sir.
Mr. Horn. No. 5 of their own procedures is the manager
gives an employee a letter of notification explaining why the
clearance has been questioned within 30 days. Did that occur?
Colonel McCallum. It did not, sir.
Mr. Horn. No. 6, employee has a right to a hearing upon
written request. Now, did you make a written request? You
hadn't gone through the other procedure.
Colonel McCallum. I did not make a written request,
Congressman. We were informed at a meeting that we attended
that I would be given no further appeal process.
Mr. Horn. Yes. Because No. 6 is if the employee wanted a
hearing, he must request it in writing within 20 days.
Colonel McCallum. Yes.
Mr. Horn. Did that happen?
Colonel McCallum. No, it did not.
Mr. Horn. No. 7, a hearing officer will be appointed from
the Office of Hearings and Appeals.
Colonel McCallum. One was not appointed. In our last letter
to the Department, we asked that a hearing officer be appointed
from an unbiased third agency who could adequately review the
documents and review the process and report on an unbiased
basis. That has not been responded to.
Mr. Horn. No. 8 of the Department of Energy's own
regulations, at the hearing the Department is represented by a
departmental attorney. The employee has the right to an
attorney and may present witnesses and documentary evidence.
Did that ever occur?
Colonel McCallum. No, sir, it did not.
Mr. Horn. And No. 9 is a hearing will commence within 90
days of the employee's request.
Colonel McCallum. We have had no response to a request for
a hearing at this point.
Mr. Horn. You're saying they don't even answer your request
letters?
Colonel McCallum. That's correct.
Mr. Horn. And they have never gone into any aspect of this
process which presumably is available to all employees in the
Department of Energy?
Colonel McCallum. It is, Congressman.
Mr. Horn. Have you ever had any of your staff that were
subjected to those particular procedures for reviewing security
infractions?
Colonel McCallum. Yes, sir. That happens routinely in the
Department, probably 50 or 60 times a year on average.
Mr. Horn. When there's an infraction?
Colonel McCallum. Yes.
Mr. Horn. And what do they do when it is a first-time
infraction and perhaps been done in innocence?
Colonel McCallum. If an infraction is determined to be not
willful and deliberate, our own manuals call for the person's
supervisor to conduct an interview to determine the reason for
the infraction and instruct the offender in the correct
security practice. The offender is then sometimes scheduled for
a class in either classification or in security procedures,
depending on which of the two components may have been
violated.
Mr. Horn. It isn't on the chart or the board there, but No.
10, at the conclusion of the hearing, the hearing officer will
issue a written opinion within 30 days forwarded to the
Director of the Office of Security Affairs. And then No. 11,
the employee or Department may appeal any finding of the
hearing officer to the Director of the Office of Hearings and
Appeals, and the Director will resolve that appeal within 45
days. And then the final one is, based on the opinion of the
hearing officer, the Director of the Office of Security Affairs
shall make a final decision to reinstate the employee's
security clearance or terminate it. And none of that ever
applied to your case?
Colonel McCallum. Congressman Horn, I've seen these
procedures implemented in the Department on hundreds of
occasions in the last 25 years. This is the first time I've
ever seen them not carried out faithfully, the first.
Mr. Horn. You're the only one in the last two and a half
decades that they have not applied their own due process
procedure to your case?
Colonel McCallum. Yes, sir, that's true.
Mr. Horn. They just made life miserable for you.
Colonel McCallum. Attempted to.
Mr. Horn. And also out of change, in terms of needing to
get your own attorney and so forth.
Colonel McCallum. Yes, sir.
Mr. Horn. I think, Mr. Chairman, listening to all of this
this morning, it's one of the great outrages I have in
Government. We expect civil servants to be professional. It's
clear that the gentlemen who testified this morning are
professionals. And now I'm sure they would agree that if once
they've given them the factual information, the political
appointees, whether they're Democrats, Republicans, liberals,
conservatives, whatever they are, whether they're biased for
Asia or biased for Europe, they as the ones in Assistant
Secretaryships, Under Secretaries, Deputy Secretaries,
Secretary, as well as the White House, they obviously can make
a different policy judgment.
But the question is, were the facts beyond that policy
judgment? If the executive branch wishes to simply kill off
advice coming from professionals, the Congress certainly has a
right to that advice. The executive branch is not the king,
although sometimes we see those aspects over the last 50 years
and even in the last century, and the question is, what do we
do to protect whistle-blowers who obviously are patriots,
obviously are professionals, and who know their business? And
it isn't a question of the administration disagreeing with
them. It's a question of having them change their basic factual
presentation against their expertise, against their knowledge.
It makes it just plain wrong.
Mr. Burton. Would the gentleman yield?
Mr. Horn. Yes.
Mr. Burton. Let me just say that the Department of Energy
has deliberately, as I said before, tried to block this hearing
in every way they could, No. 1; No. 2, they have not complied
with our subpoena for information pertaining specifically to
Lieutenant Colonel McCallum; and No. 3, I think it will be
incumbent upon this committee to find out why that's the case
and ask people from the Department of Energy to come up here
and explain why the procedures, which are supposed to be
applied to every single employee when there's this kind of a
question arising, why those--why those procedures were
deliberately circumvented and not applied to Lieutenant Colonel
McCallum.
So I appreciate that we will be having a hearing on this,
and I hope the gentleman will be involved in that one as well.
Mr. Horn. I hope you do that because it certainly cries out
for the congressional committee to get them up here, have them
give their side of the story, and if they're not going to
present us with the written information that we've asked for,
then a few contempt of Congress citations shall be taken to the
floor. And it's too bad if we have U.S. Attorneys sometimes
that turn their back the other way, and we have some in Justice
that turn their back, but after you get the evidence down here,
we have a real problem in trying to deal with people in a
violation of their own procedures within the Department.
Mr. Burton. Well, if the gentleman would yield further, we
said in our opening statement that if we don't get the
cooperation of the Department that we are entitled to as
Members of Congress, we will probably move a contempt citation.
I would rather not have to do that, but it's a possibility.
Mr. Horn. Thank you, Mr. Chairman. I yield back my time.
Mr. Burton. The gentleman yields back the balance of his
time.
Mr. Waxman.
Mr. Waxman. Thank you very much, Mr. Chairman. I appreciate
the testimony of all of our witnesses.
Mr. McCallum, you mentioned retaliation in your statement,
and you've discussed it already to some extent. I just want to
make sure that I understand the basic facts. The Energy
Department placed you on administrative leave with pay because
they say you disclosed classified information in a phone
conversation. Is that right?
Colonel McCallum. That's correct, sir.
Mr. Waxman. And the conversation at issue which contains
the purportedly classified information was recorded; is that
correct?
Colonel McCallum. Congressman Waxman, I'm not sure how far
I can go in discussing the specifics beyond--I think I can say
that those--that it was recorded, but I don't think I can
further identify it.
Mr. Waxman. And it's my understanding that you don't
dispute having a conversation and disclosing information, you
just maintain that the information was unclassified.
Colonel McCallum. That's correct, sir.
Mr. Waxman. It's my understanding that the Energy
Department had access to the transcripts and could have
reviewed them for security violations, long before they became
widely publicized; is that right?
Colonel McCallum. That's correct, sir.
Mr. Waxman. Something did get the attention of the Energy
Department though. It was an article published on the Internet
detailing your conversation which was highly critical of
security at a DOE facility; is that right?
Colonel McCallum. The classification officer is pulling my
shirttail here. Just a second, sir.
Mr. Waxman. Go ahead and consult with them, yes.
Colonel McCallum. Could you repeat the question, Mr.
Waxman?
Mr. Waxman. My question is about the Department of Energy--
getting their attention on this article that was published on
the Internet detailing your conversation which was critical of
security at a DOE facility.
Colonel McCallum. I've been asked by the classification
officer not to comment on that, because it might further
identify the location of information which is contested. I hold
it's not classified, but there are some people in the
Department that believe it is, and----
Mr. Waxman. Is it fair to say that there was an article on
the Internet that seemed to catch their attention?
Colonel McCallum. I've been advised not to answer that,
sir, respectfully.
Mr. Waxman. I'm sorry, what did you say?
Colonel McCallum. I've been asked by the classification
officer not to answer that.
Mr. Waxman. I don't want to get you in any trouble. It's my
understanding that there was an article on the Internet which
caught the attention of the Department of Energy, and that this
article was published in mid-April of this year. Now, as you
may recall, April was a pretty bad month at the Department of
Energy. As of then, nine congressional committees were
investigating the Chinese espionage issue. Notra Trulock had
testified that he had been blocked from pursuing security
reforms at the Department.
Secretary Richardson had just ordered the computers shut
down at the Federal labs, and Senator Murkowski, the chairman
of the Energy and National Resources Committee complained that
``the ability to identify accountability in this process is
very, very difficult,'' from Senator Murkowski, and that's
precisely the time when the story on you describing your
alleged classified conversation hit the Internet.
I can understand why you think your suspension was
retaliation. If I were in your position, I would feel the same
way. But given what was going on at that time, isn't it
possible that Secretary Richardson was told that your case was
an example of a DOE employee who disclosed highly classified
information, and that if he failed to act, if he hadn't
suspended you, he would face tremendous criticism?
Colonel McCallum. Congressman Waxman, I cannot attribute
the reasons for the Secretary's actions. I think I said in my
opening statement that I believe that it was to discredit and
intimidate me specifically for the reasons which you mentioned,
that there were numerous congressional committees and the
President's PFIAB regrettably who were looking into these
issues, and I have the keys to the skeleton closets.
I will say, however, that I find it hard to believe that
you would take an action like this without going through the
formality of the procedures to review whether there has
actually been anything done wrong in the first place. These
procedures are described in detail in not only DOE regulations,
but in the Code of Federal Regulations, which have been
published. And I know of no other exceptions.
So while it may have been the Secretary's intention to make
an example of someone, I certainly don't think that it's
appropriate to make an example before you determine whether
they're guilty or not.
Mr. Waxman. I'm not asking you to come to that conclusion,
but I'm speculating that a lot of things were going on at the
same time, which might have framed his thinking to act in a way
that didn't follow the other procedures.
Colonel McCallum. I can only say, Mr. Waxman, Congressman,
that the only thing that the Secretary shared with me during
our meeting, when I walked in the door, before I was given an
opportunity to present my case at all, was that I was guilty. I
find that somewhat against the kind of system that I believed,
that I had been taught is the way we're supposed to act in this
country and in this government. There was no due process. There
was no review. There was no interview. There was not even an
opportunity for me to explain why the information was not
classified.
Mr. Waxman. I can certainly understand your feelings. I
understand that several qualified officials both inside and
outside the Energy Department have reviewed the conversations
at issue.
Do you know--well, I don't know if you're permitted to say
whether you know whether that is the case or not. But let me
ask you, do you know who reviewed the conversations and what
they did conclude?
Colonel McCallum. Yes, sir, Congressman Waxman. I can first
tell you who I had review the items in question. When the issue
first came to my attention, I asked several of my most senior
managers, two of my division Directors and the person who is
most active in this area, the person we turn to as an
authorized classifier, to review the information. All three,
two of them in writing and one not, said they were not
classified.
I also asked two officials of the Department of Defense who
did this business whether they thought they were. They both
said they were not, although not in writing. As I said in my
testimony, the Assistant Secretary for Defense Programs brought
forth two individuals who thought they were. But beyond that, I
don't think I can--I don't want to identify further the
information or the criteria by which it was looked at. I would
like to.
Mr. Waxman. I understand. I'm sure you understand that we
on this committee are not in a position to review the
transcripts and determine whether they contain classified
information. But I think all of us would agree that there ought
to be a fair inquiry by the appropriate officials and an
opportunity for you to be heard.
I understand you're now essentially in a standoff with the
Energy Department on how to resolve the allegations leveled
against you. What is the status of your dispute with the
Department of Energy?
Colonel McCallum. Congressman Waxman, I would hope that
we're not in a standoff. What we have proposed to the
Department is that, since it appears to me and my attorney that
this situation was prejudged before there was any
investigation, that I would call an adequate investigation, on
any opportunity for me to present either my case or witnesses
or to present my technical argument, that this--that the
Secretary has himself prejudged this case, in his own words to
me. We ask either the Department of Defense or the U.S.
Security Policy Board or some other identified third
organization that can review this in an unbiased manner with
the right technical outlook to review it. And I've offered to
live with whatever decision that they make.
I would hope that's not considered a standoff. I think that
that's a fair offer as long as I believe I get some due process
and some review in the situation. I'm willing to argue my case
in court.
Mr. Waxman. Well, I agree that you haven't been treated
fairly, and I don't understand why procedures weren't followed.
What I'm uncertain about is whether this was retaliation or a
regrettable overreaction by the Energy Department, and that's
something I can't conclude at this point.
But I sympathize with your situation, because it's clear
that the Department of Energy did not follow the procedures,
and I don't think they gave you a fair opportunity to be heard.
Let me ask some questions of Dr. Leitner. Dr. Leitner,
there are a few areas of your testimony I want to clarify. Your
disagreements with your superiors have not been limited to the
Clinton administration, have they?
Dr. Leitner. No, sir, they're not.
Mr. Waxman. You've raised similar concerns about American
export control policy during the Bush administration; is that
right?
Dr. Leitner. Yes, I have.
Mr. Waxman. And did you feel the Bush administration was
too lax on export control to China?
Dr. Leitner. Yes. What happened in the Bush administration
resulted from a great deal of clouds and uncertainty because of
the end of the cold war, and I believe very strongly that they
went too far, too fast in relaxing export controls.
Mr. Waxman. Did you write a memo to that effect that you
circulated to many individuals both inside and outside the
Department?
Mr. Leitner. No. As a matter of fact, my memo stayed within
the Department. What I did--the memo that we're talking about,
I presume, is the one that is attachment A to my testimony, was
an analysis of the cumulative impact of these various controls,
decontrol proposals. I tried to show that the methodology being
employed was faulty; it was not looking at the system level
where the real impacts would be felt.
Mr. Waxman. When you wrote this memo, how was it received;
how were your concerns received by your superiors at the
Department of Defense?
Dr. Leitner. It was interesting, the reception. First I
wrote the memo, and I sent it out for peer review to some of
the DOD labs and also to my colleagues, engineers in my office
and other places all within DOD. And I asked for their comments
about the accuracy and the efficacy of the arguments I was
making, and what I was trying to point out. I got a variety of
comments, all constructive comments, saying, no, this
particular item should be over here, and pointing to this port
of a missile, this part of an aircraft, that sort of thing.
So I made changes accordingly, and once I had it validated
technically, I sent it to my superiors. It was greeted in an
interesting way. My immediate supervisor, the Director of
Policy at the time in DTSA, thought it was terrific, and he was
running around making copies, giving it to other people in
policy, saying, look, at this great thing we have.
Mr. Waxman. No one took retaliatory action against you?
Dr. Leitner. Not immediately.
Mr. Waxman. William Rudman was head of your office during
the Bush administration; was he not?
Dr. Leitner. Yes, he was.
Mr. Waxman. In the story of the National Journal, Mr.
Rudman, who is a fierce critic of the Clinton administration,
called you a zealot who was ``professionally insane.'' How do
you respond to that?
Dr. Leitner. Well, for my response, you can just look at
the reporting that has been done on Mr. William Rudman over the
years. You will find that when he was in the Customs Service
how he was investigated for holding a guy who he accused of
being a homosexual at gunpoint, how he was accused of all kinds
of violations of basic human values at the Customs Service when
he was there.
And if you look at the investigation that was conducted by
the DOD IG in 1992, an inspection report where they found all
kinds of irregularities regarding Rudman renting a room in an
employee's basement and filing false receipts for expenditures.
Just look at the IG inspection report. I will be happy to stand
in court and compare character between myself and Mr. Rudman
any time, any day.
Mr. Waxman. You're quoted as saying you had reservations
not just about the Bush administration policy, but also about
the Reagan administration. Do you feel that the Reagan
administration was too lax toward China?
Dr. Leitner. No, the Reagan administration had a
different--an interesting approach. They came up with an
approach toward China known as the green line, where they tried
to differentiate between China and Russia in terms of a
potential threat, and they offered China more liberal
treatment. At that time, there was a strategic matrix that they
were trying to achieve, and that was to make the Chinese appear
to be enough of a threat to the Russians during the cold war
that the Russians will have to transfer many troops East of the
Urals to the Chinese border so they wouldn't be facing NATO and
the United States.
There was actually a strategic doctrine that was being
employed as part of this very slow doling out of benefits
toward China. Was I a direct opponent of that? No, I was not.
Mr. Waxman. Were you critical of it?
Mr. Leitner. At times I thought on specific proposals we
might have gone a little bit too far, and I was critical in
specific proposals, internally critical.
Mr. Waxman. You've been fairly vocal in your criticism of
your office and American export policy. How many times have you
appeared on television to air your concerns?
Dr. Leitner. I don't know, a handful of times, just a few
times.
Mr. Waxman. How many times have you been printed in a print
publication on export control issues?
Dr. Leitner. A larger handful of papers.
Mr. Waxman. How many times have you prepared papers or
studies at your own initiative criticizing decisions made by
your office?
Dr. Leitner. As a matter of fact, my testimony documents
the major criticism papers that I did that were critical. And I
want to emphasize to you that they were internal documents. I
did not go to the press with these documents. I gave them to my
superiors within the Department.
Mr. Waxman. I wasn't asking you about the documents. I was
asking about public appearances.
Dr. Leitner. Public appearances, largely congressional
testimony, twice before the Joint Economic Committee, once
before the Senate Governmental Affairs Committee, once before
the Cox/Dicks committee and then here today.
Mr. Waxman. Have some of your criticisms been directed at
decisions made in your office that you were not responsible for
reviewing?
Dr. Leitner. Not responsible for reviewing? There are many
decisions that are made that I'm not responsible for reviewing.
As a matter of fact, that memo that I have in attachment A--the
1990 memo concerned a bevy of decisions that I was not
responsible for reviewing. I tried to do a cumulative
assessment of those decisions and show what the cumulative
impact would be.
Mr. Waxman. In your written testimony you say that several
factors including ``corruption and possibly darker motives,
have brought us to a turning point.'' Can you tell us what
evidence you have of corruption at the Department of Defense?
Dr. Leitner. I'm not an investigator who looks at criminal
charges in the Department of Defense. I have seen decisions
made on a regular basis that you have to question the motives
of people. You try not to do that. You try to simply deal with
substantive issues, but there are many actions that take place
which just are very difficult to explain otherwise.
Mr. Waxman. What do you mean by darker motives?
Mr. Leitner. By darker motives, I was referring to what the
Cox committee found at the national labs in terms of possible
espionage. I wasn't limiting myself in that particular comment
just to the Department of Defense.
Mr. Waxman. Secretary Cohen is a former Republican Senator
from Maine. As Secretary of Defense, do you believe that he and
other officials of the Department of Defense are deliberately
undermining the national security of the United States?
Dr. Leitner. I have no idea what Secretary Cohen is doing
or not doing. I don't deal with Secretary Cohen at my level.
Whether it's intentional or unintentional, I can't speak to
that. I just know the net result is undermining the national
security of the United States.
Mr. Waxman. Is it possible that your disagreements with
your superiors at the Defense Department are no more than
legitimate policy differences between people with strongly held
views?
Dr. Leitner. I would normally think that, and in most cases
that's usually the case. I don't deny that there are policy
differences, and gentlemen agree to disagree on issues. I know
I am not the be all and end all of licensing. I am not a
policymaker, I am not a political official, but when you do
offer an analysis and then you are retaliated for offering that
analysis, that's where the line gets crossed into whether or
not it's not just being listened to and being taken account of,
it's actually being reprised against and being attacked for
your efforts. There may be a difference of opinion where
gentlemen might disagree. But gentlemen generally don't attack
each other for offering a difference of opinion.
Mr. Waxman. You talked about a web of corruption at the
Department of Defense. Do you think that Secretary Cohen is
part of that web of corruption?
Dr. Leitner. I personally doubt it. I think Secretary Cohen
has not been involved in the export control process to any
great extent. He was dealing with much larger policy issues.
But I have absolutely no way of knowing. I just know from my
vantage point.
Mr. Waxman. Has the Department been responsive to some of
your criticisms of how your office is run? Have there been
changes made in the office data base to respond to your
allegation of memo tampering?
Dr. Leitner. No. Any changes in the data base on memo
tampering, such as the time that I went on vacation after
denying two supercomputers to Arzamas-16 and Chelyabinsk-70, in
Russia, and I came back and found out that my position was
changed and my name left on it in the data base. The procedures
that allowed individuals to make those changes have still not
been altered. My positions still get changed. My name is still
on cases after repeatedly complaining, after talking about it
in public testimony, and after speaking to the IG about it.
Mr. Waxman. We were told in this committee that the data
base has been altered to provide licensing officers with the
opportunity to express their own individual views; is that not
the case?
Dr. Leitner. The structure of the data base has not changed
in years in terms of that. There's always been a comments
section where you can put a comment in, but it's been there for
years and years. I haven't noticed any change at all.
Mr. Waxman. Have more regular meetings on export licensing
issues been held in response to your criticism?
Dr. Leitner. Not that I've been made aware of.
Mr. Waxman. Has there been wider distribution of internal
information in response to your criticism?
Dr. Leitner. Not that I'm aware of.
Mr. Waxman. Mr. Maloof, I want to thank you for your
testimony today. I would like to ask you a few questions to
clarify your testimony.
Mr. Maloof. Yes, sir.
Mr. Waxman. You testified you feel you are the victim of
retaliation from your superiors. Are you familiar with the
Office of Special Counsel?
Mr. Maloof. Yes, sir, I am.
Mr. Waxman. And have you submitted a retaliation complaint
to the Office of Special Counsel?
Mr. Maloof. No, I have not, because I felt that--judging
from previous experiences of other colleagues, that it would
probably be futile. It was also my impression that after--I
also went through my own system, I went to our Deputy Under
Secretary, who immediately referred me back to General Counsel
within the Defense Threat Reduction Agency. I went through that
channel. Immediately they felt that given the facts that I
presented, there was a case of retribution.
I then listened to what Dr. Leitner had to say about his
experiences with the special counsel, and I just saw one heck
of an uphill battle because of the--of what I perceive to be an
approach by them to favor management. And it would have
required an expenditure of tremendous resources on my part, and
I just did not have the time and energy to put into that and at
the same time try to do my job.
Mr. Waxman. Mr. Chairman, I see the red light. Did I have
two 10-minutes?
Mr. Burton. Yes, you had 20 minutes. The time goes by
quickly.
Mr. Waxman. Then I will catch up on the next round.
Mr. Burton. But you have another 10 minutes on your side at
the conclusion.
Mr. Barr.
Mr. Barr. Thank you, Mr. Chairman, for convening this
hearing today. As you know, Mr. Chairman, I served with the CIA
back in the 1970's and with the Department of Justice as a U.S.
Attorney back in the 1980's. And I must say, Mr. Chairman, what
we've heard today indicates to me an administration that is so
vastly different as to almost be operating in an alien country.
It used to be that spies were prosecuted. It used to be
that security measures, polygraphing of employees, regular and
very serious monitoring of data bases, information, activities
that might be suspicious were taken seriously, and underlying
all of the work that we did back in the 1970's and in the
1980's in these areas was a notion that our national security,
which protected our sovereignty, was something important. That
seems to have been utterly lost by many in this administration.
Maybe it was never there, I don't know.
We've read books, Gary Aldrich's books and other gentlemen,
and this gentleman leads a very distinguished, impeccable
career in public service and in law enforcement. We've read
these books. We've seen these documents. We've heard the
testimony, and it is absolutely, Mr. Chairman, chilling, the
testimony we have heard today.
Gentlemen, I appreciate all of you coming forward, the
tremendous risk to yourselves and to your careers. The work
that you perform, underlying it are several important
components of your job as public servants, the same as ours and
mine was when I served with the CIA and with the U.S.
Department of Justice as a U.S. Attorney: first and foremost to
protect the United States of America; second, in the executive
branch to serve the President, and in your capacity you
essentially served the President by providing, within the
bounds of the law, information to him so that the policy
decisions that he makes can be based on the very best, most
substantive, most objective judgment of professionals. So when
he makes a decision, it's not just sort of a shot in the dark,
it is based on learned judgment, and one can criticize any
President for a policy decision. That's not your job. As far as
I can tell from your testimony, that has not been your job, and
that's not the point of your being here, criticize policy
decisions of the President or others.
But the scenarios that you all have laid out raise several
extremely troubling problems. When decisions that you have made
based on your judgment and in furtherance of your job,
including protecting our country, are altered to reflect
untruths, to reflect information that you know to be false, to
be inaccurate, to be inappropriate. Then one of, I guess, at
least three different things is happening. Either the word is
coming down from the President or from the policymaker to
justify a policy decision; or, second, the word is going up to
the President to influence a policy decision improperly. Both
of those, of course, are corrupt.
Those--that is a corrupted policymaking process, which is
bad in and of itself, but there's another scenario that I
certainly have no way at this point--whether this is true or
not, that raises the most serious problems or questions, and
that is those that border treason. If decisions are being made
to influence your work, your objective assessment, the data
that you have accumulated and put objectively in, substantively
into a document, is altered with the purpose of assisting a
foreign power to acquire information or data to which they
would not otherwise be entitled, and that raises the singularly
most serious question that can be raised about a nation's
national security, and that is, is it being compromised not
because of internal politics or internal decisionmaking, but
because of something external, one of our adversaries is
seeking to have a policy decision made or changed to reflect
and to enable them to gather information, evidence that they
would not otherwise be entitled.
So I do not think, Mr. Chairman, that the importance of
this hearing, the importance of the problem, the magnitude of
the problem that these witnesses have come forward today could
be overstated. I appreciate it very much.
There are a couple of specific questions. Mr. Maloof, you
talked briefly in your--this is in both your written testimony
as well as your oral testimony. On pages 8 and 9, you mentioned
an Assistant U.S. Attorney and a Customs investigator. Who was
that U.S. Attorney? What U.S. Attorney's office was that out
of?
Mr. Maloof. Out of Washington.
Mr. Barr. And who was the Assistant U.S. Attorney?
Mr. Maloof. Mr. Pelleck.
Mr. Barr. Would you spell that, please?
Mr. Maloof. P-E-L-L-E-C-K. He was handling our--has been
handling the technology transfer investigation.
Mr. Barr. Thank you.
With regard to Dr. Leitner, you talked at some length about
the changing of your position on your computer when you were
out of town with regard to superconductors being approved to
Russia. How large is the scope of people that would have access
to your computer to be able to make that sort of change?
Dr. Leitner. Well, it was about supercomputers and not
particularly large, it would be just be a handful of people.
It's fairly narrow. It's on a local area network within the
organization.
Mr. Barr. Would you name them, those by name, those people
that would have access to it and the capability to make the
change?
Dr. Leitner. Well, specific authorities give with it the
ability to make changes in the record. I know that at a
minimum, people that have that authority in my office, include
Barbara B. Auckland; my supervisor, Colonel Raymond Willson;
and I'm not sure who else. It would only be a handful of
people, but those are two people who did have that authority or
who do have that authority that I know for sure can make such
changes.
Mr. Barr. Is there a difference between the authority and
the power to go into the computer and either add or detract,
but certainly designate and make clear that information is
being added or detracted? Does anybody have the authority to go
in there in your name, purportedly in your name, make a change
that is reflective of what your position and assessment will
be? I mean, to me that is criminal, and nobody would have the
authority to do that as opposed to going in and adding or
detracting information, but making clear that they are doing
it, and they're not trying to do it in your name, which would
be fraud.
Dr. Leitner. I agree completely, I believe, and I have
complained internally in memos. I've complained to the
Inspector General's Office as well that I believe that it is
fraudulent. I think there has been tampering with a data base
that is supposed to be the official DOD record of its
transactions in the export control process, and they were
making it appear to be something that it wasn't. They're
putting false information in.
Mr. Barr. Has there been, as far as you can tell, any
initiation of a criminal investigation by DOJ of this matter?
Dr. Leitner. No, there has not been any investigation I'm
aware of.
Mr. Burton. Mr. Barr, we will have a second round here in
just a few minutes, if you would like.
Mr. Barr. Thank you.
Thank you, Dr. Leitner.
Thank you, Mr. Chairman.
Mr. Burton. Mr. Waxman has 10 more minutes on the 30
minutes, so we will now recognize Mr. Waxman and then go to
you, Mr. Souder.
Mr. Waxman. Thank you very much, Mr. Chairman, and when
that red light comes on, I'm going to try to conclude my
questioning so we can be fair to everybody on the committee.
Dr. Leitner, you said you were a victim of a manufactured
security violation. As I understand it, you claimed that
another Defense Department colleague planted a classified
document in your desk and then executed a surprise inspection
of your desk. That's a serious charge if it's true. Could you
tell us more about that, Dr. Leitner?
Dr. Leitner. I would be happy to. It wasn't a surprise
inspection. There's no such thing. We've never had anything
called surprise inspections. What happened, was during a
snowstorm in February, when the Government was dismissed early
because of the snow accumulation, I too was dismissed, and went
home for the day. Then I started receiving phone calls from
colleagues in my office saying, hey, something happened this
afternoon that's quite unusual, and the unusual thing is that
my supervisor Colonel Willson did something he never ever does,
and that's conduct the routine double-check at the end of the
day, where we have safes with classified information. And
basically what the routine is, you----
Mr. Waxman. Let me interrupt you because I do have a
limited time. Without going through all the details, you
believed that your supervisor planted a classified document in
your desk and then criticized you for having that document.
Dr. Leitner. Yes, I believe--it was a set-up, and it was an
intentional attempt to delegitimize me and somehow affect my
security clearance and my standing in the office.
Mr. Waxman. And did you report this to anybody in law
enforcement or anything?
Dr. Leitner. Yes, sir, I reported it in my chain of
command. I set a memo to the head of DTRA, Defense Threat
Reduction Agency, Dr. Jay Davis, and in that memo I demanded
that the case be referred to the Defense Criminal Investigative
Service for a criminal investigation, because I believe a
criminal act was committed against me.
Mr. Waxman. You believe you had been passed over for
promotions and denied bonuses and merit pay increases as a
result of the hostility of your supervisors?
Dr. Leitner. Yes.
Mr. Waxman. Are we talking about supervisors other than Mr.
Rudman?
Dr. Leitner. Oh, yes, Rudman is long gone. He was involved
quite a few years ago.
Mr. Waxman. His replacement and other supervisors are also
being critical of you?
Dr. Leitner. Yes.
Mr. Waxman. Mr. Maloof, you testified about your efforts to
learn more about the investigations into the Hughes and Loral
Corps. After those companies had been under investigation for
more than a year, when you first read about the investigation
in the New York Times, you received calls from the Public
Affairs Office and another office with the Pentagon; is that
correct?
Mr. Maloof. That's correct.
Mr. Waxman. And after your discussion with those offices,
your superiors told you that they didn't want you involved in
the issue; is that right?
Mr. Maloof. Yes, sir.
Mr. Waxman. Now, if I understand correctly, you persisted
with your inquiries, right?
Mr. Maloof. Correct.
Mr. Waxman. And you questioned an engineer about the
matter?
Mr. Maloof. That's correct.
Mr. Waxman. I understand you were and continue to be
concerned about the office's approach to export controls and
about satellite waivers for companies like Hughes and Loral,
but are you saying that your superiors had no right to limit
your role as a point of contact on this issue within your
office?
Mr. Maloof. I would suggest that to do so was to impede me
from doing my job in this fashion. I look at all export license
applications to end user and end uses as part of my duties. We
run those names against data bases, and if there is something
out there that is going on that is potentially criminally
wrong, and we're adding to the capabilities of another country,
I needed to know that.
Mr. Waxman. Did anyone in your office ever say that you
could not provide information as a witness to law enforcement
agencies investigating the Hughes and Loral matter?
Mr. Maloof. I was questioned extensively about that
participation, but eventually it stopped.
Mr. Waxman. It stopped.
Mr. Maloof. The criticisms and the questioning of my
providing that information.
Mr. Waxman. If I understand correctly, after your
conversation with the engineer in your office, you contacted
the Customs Service and reported your concerns that there might
be a cover-up of some kind; is that right?
Mr. Maloof. Potential cover-up.
Mr. Waxman. A potential cover-up. And the Customs Service
investigated your allegations. Did anyone else investigate the
allegations?
Mr. Maloof. Beyond the Assistant U.S. Attorney, I have no
idea. They were the proper people to conduct the investigation,
because that was part of their responsibility at the time. We
certainly could not do anything internally, and after I talked
to the engineer, as I stated in my testimony, I was barred from
talking to anybody else about the issue, so for me to pursue it
independently would have gotten me even into more difficulty.
Mr. Waxman. You concluded in your testimony, ``It became
apparent to me that the reason for handling Chinese satellite
issues among a very few people and keeping quiet any
information concerning an investigation was to ensure that
satellite cases continue to be approved unimpeded.''
How did you arrive at that conclusion?
Mr. Maloof. I arrived at that conclusion because the--for
over that year period, very few people were handling details of
the satellite cases. My office, when the satellites were under
munitions control, was totally bypassed. We never even saw
those license applications. I'm told even in recent days by
engineers that our management has asked the engineers to
expedite those cases even now.
Mr. Waxman. Someone told you that?
Mr. Maloof. I heard it from three different sources, and
they were all engineers, Mr. Waxman. And I'm just informed by
Dr. Leitner that he's heard the same thing.
Mr. Waxman. Mr. Fox, I want to thank you for appearing
before us today. As I understand it, you've alleged that
another DOD official threatened your job unless you reversed a
recommendation concerning a proposed agreement on peaceful
nuclear cooperation with China; is that right?
Mr. Fox. Yes, sir.
Mr. Waxman. Let's step back and look at what you were asked
to do. My understanding was Mike Johnson, who was from a
different office, the Office of Nonproliferation Policy, passed
on a request from the Department of Energy to review the
proposed agreement; is that right?
Mr. Fox. Well, actually, I received the agreement directly
from the Department of Energy, and the procedure with that, I
would write up my technical opinion and then forward it back to
Mr. Johnson, who would then incorporate it within the internal
DOD.
Mr. Waxman. So your review was supposed to be a technical
review?
Mr. Fox. It was, sir.
Mr. Waxman. OK. And as you know, Mr. Johnson told the
committee staff he was upset about your memo because it went
beyond the scope of the technical analysis that he requested.
Do you feel that your memo went beyond the technical analysis
that Mr. Johnson requested?
Mr. Fox. No, sir, it did not. I disagree with that
completely. As a matter of fact, that was never even suggested
to me at the time, at the time of this situation. As a matter
of fact, sir----
Mr. Waxman. Let me ask you, I understand that the chairman
put up the memo and asked you some questions, or at least one
of the Members did. In the memo you write that the end of the
cold war ``has given China little pause for a reflection in the
wholesale rejection of Marxism. It remains committed to a
discredited creed.'' How is China's domestic political
situation relevant to the technical analysis you were asked to
prepare?
Mr. Fox. Sir, the record of state action of the recipient
of nuclear technology is a clear basis for determining whether
or not the representations given as part of a technology
sharing or cooperation agreement have credibility or
reliability.
Mr. Waxman. One of the paragraphs struck from the memo, I
understand Mr. Shays read one of them, let me read another.
The post cold war era has given the People's Republic
little pause for reflection in the wholesale rejection of
Marxism. It remains committed to a discredited creed. The
political hierarchy retains power through draconian measures,
with little heed to global repulsion at the excesses imposed
upon its own people. It maintains an expansionist foreign
policy and openly covets the reacquisition of now independent
territories. It is in the midst of a decades-long military
modernization program which has an ultimate goal, the
achievement of undisputed power projections capabilities. China
maintains an active nuclear weapons development program and an
equally energetic foreign intelligence service.
This is your analysis of China itself. I want to know
whether you think that the issues you discuss were beyond the
scope of a technical analysis.
Mr. Fox. No, sir, they are not. You cannot consider the
transfer of technology in a vacuum. You must consider all
aspects of a technology transfer, and especially where you have
a technology transfer agreement that is verified solely by
diplomatic representations, then sir, you must consider state
action as part of the overall analysis.
Mr. Waxman. Excuse me, I understand what you are saying and
I have to get on to the questions.
I want to ask about your working relationship with Mr.
Johnson at the time you had the dispute with him. Did you and
Mr. Johnson work at the same office of the Department of
Defense?
Mr. Fox. No. I worked in one office that was supporting him
through a memorandum of understanding.
Mr. Waxman. Was he your supervisor?
Mr. Fox. Only under the terms of the memorandum of
understanding.
Mr. Waxman. Is he in the same chain of command as you?
Mr. Fox. Only in the sense that I served him through a
memorandum of understanding as a technical adviser.
Mr. Waxman. Did you report to the same political
appointees?
Mr. Fox. Only in the circumstances governed by the memo.
Mr. Waxman. Did he have the authority to fire you?
Mr. Fox. I think his recommendation in that regard would
have carried substantial weight.
Mr. Waxman. Did Mr. Johnson's immediate superiors have the
authority to have you fired?
Mr. Fox. I think that their recommendation in that matter
would have carried substantial weight with my chain of command,
especially my senior management.
Mr. Waxman. Mr. Chairman, I yield back the balance of my
time.
Mr. Burton. I will reserve my 10 minutes until others get
their first rounds. Mr. Souder and then Mr. Ose.
Mr. Souder. I thank the chairman. Colonel McCallum, in your
statement, and one of the scary things in listening to
Congressman Weldon, the number of people that he referred to in
addition to the four in front of us, in your written statement
I don't think that you went through some of these names.
On page 11 you say that one site had five Security
Directors in a little over 2 years and you name Rich Levernier,
Gary Morgan, David Reidenour, Bernie Muerrens, Link White. You
also say that numerous security police officers, men like John
Hnatio, Jeff Hodges, Jeff Peters, and Mark Graff have all had
their careers ruined for coming forward and addressing serious
lapses in DOE.
One of the reactions that I had to this is that as somebody
who was too young during the McCarthy era to have actually
experienced it, but it seems like then there was an abuse of
power and a witch hunt for those who were supposedly Communist.
What we seem to see in this administration is a witch hunt for
those who are anti-Communist. And it is extremely disturbing to
see people's careers ruined and side-tracked and demotions
because their devotion was to freedom and their concern was
about the transfer of power.
Some of us had written a letter--but let me go through a
couple of questions.
I understand you and your counsel had a chance to meet with
Secretary Richardson on May 27, 1999 to discuss your status at
the Department of Energy; is that correct?
Mr. McCallum. Yes, it is.
Mr. Souder. We have a letter that I and nine other Members,
Congressman Barr, Congressman Bartlett, Congressman
Rohrabacher, Congressman Weldon, Congressman Cunningham,
Congressman DeLay, Congressman McIntosh, Congressman Johnson,
and Congressman Forbes, signed expressing congressional concern
about your employment status at DOE, cites your long-standing
efforts to enforce and implement the safeguards, and I wondered
if you are familiar with the letter?
Mr. McCallum. Yes, Congressman Souder, I am familiar and I
want to thank you and the other Congressmen that sent that
letter forward for your support and kindness.
Mr. Souder. In your meeting with Secretary Richardson, did
he mention this letter to you?
Mr. McCallum. Unfortunately, when I walked in the door,
Congressman, he did mention it.
Mr. Souder. Can you describe that in any way that you are
comfortable?
Mr. McCallum. In front of this august body and rolling
cameras, he was rather angry. It was clear that he was
disturbed by the letter. He held it in his hand and flipped it
a couple of times and made the comment that this letter doesn't
intimidate me. I play basketball with these guys. This is,
expletive deleted, and threw it on the table.
Mr. Souder. What do you think that he meant by ``I play
basketball with these guys''? How did you interpret that?
Mr. McCallum. I understood that to mean I know these guys.
I have worked with them and they will play ball with me, and
stay away from the Congress.
Mr. Souder. Do you think that that was just bravado or do
you think that anything happened as a result?
Mr. McCallum. I think it was some bravado. But it was clear
that the Secretary went to the PFIAB and although I was
scheduled to testify, my testimony was then delayed and
ultimately I did not appear before the PFIAB. As some of you
may know, Congressman Bliley was scheduled to hold hearings on
the security at the Department of Energy last month, and 2 days
before the hearings, based on a visit by the Secretary of
Energy, he first delayed and then canceled the hearings. So I
believe the Secretary has had some impact in the halls of
Congress.
Mr. Souder. Well, one of my frustrations is that when many
of us in Congress feel something very deeply, and one of the
frustrations that we have in this committee, we have seen a
lack of responsiveness. And I don't know Secretary Richardson
well, but he seems like a decent guy, and I don't play
basketball so I have not been heavily influenced by that. I
understand that this is very difficult, but I think it is
outrageous to treat a letter from Congress in this way,
including not being responsive to the letter.
I wanted to ask the chairman, I understand that you have a
letter also that you have sent to the Energy Secretary, and I
wonder if you have received any response?
Mr. Burton. We sent a letter to the Secretary after a
meeting we held in my office, during which he tried to
discourage this committee from holding a hearing in very strong
terms. The letter has not been responded to, nor has the
subpoena we sent to him regarding Lieutenant Colonel McCallum's
employment record, and I think that is unfortunate and we
intend to pursue that, Mr. Souder.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T2262.099
[GRAPHIC] [TIFF OMITTED] T2262.100
Mr. Souder. I thank the chairman.
One of my frustrations, and anyone watching this hearing
has to feel it is surreal. On the one hand we are trying to
talk about how to apply whistleblowing protections to patriots
and people who are calling attention to these problems, and
that is the immediate need we have in this country. But
meanwhile, what we seem to have seen is nuclear secrets getting
into the hands of our enemies, both through overt spying and
through technology transfers, and we are sitting here holding
hearings on trying to get into defending Americans who try to
call attention to that who then get punished. Talk about the
world being turned upside down. I understand that there can be
disagreements, and I understand the pressures that are brought
to bear to many Members of Congress, and we feel pressures from
supporters and companies back home, but to see memos being
forced to change.
In my second round I would like to get into who some of
these people were, and how we get into that question and the
process because I think that the deeply disturbing thing is
that it appears to me that the reactions to the secrets going
out has rather been to punish the people who were trying to
warn and do something about it rather than getting into the
problem that we have compromised our national security. I think
this is outrageous, and I thank you for your willingness to
come forward today.
Mr. Burton. Thank you, Mr. Souder. Mr. Ose.
Mr. Ose. Thank you, Mr. Chairman.
Dr. Leitner, I want to make sure I understand the surge you
highlighted in your testimony about the computer issues. If I
understand the current export regime, we have a limitation of
so many MTOPS on what kind of equipment we can send overseas.
And over time, the cap, if you will, has increased and it is
either currently at 2,000 or it is proposed to go to 2,000
MTOPS, the rationale being that you can acquire that kind of
capacity overseas at present anyway.
Then there is a discussion as to whether or not to take the
regime to 7,000 MTOP level at present.
If I understand the Cox report, and the reason that I am
asking this question, I want to understand why the
administration would--or the Department of Energy would, if you
will, attempt to interfere here, with its personnel and what
have you. If I understand correctly from the Cox report, the
capacity to do theoretical projections on nuclear weapons is in
large degree a function of the level of MTOPS that you have
available in your computer, that being that the lower the
level, the more inaccurate or unreliable the projections from
an analysis within a projected outcome?
Dr. Leitner. Well, MTOPS is a predictor of more than
anything else speed, not capability in terms of analytical
capability. Very often apples and oranges get mixed up.
You have to wait longer for your answer to a complex
problem with a slower computer, but over the years we have
heard justification for allowing more powerful computers to be
exported as, one, they can't really use them for nuclear
simulation and modeling because you need to have real test data
or accurate test data.
Unfortunately, as Lieutenant Colonel McCallum and as Notra
Trulock have reported, and the Cox committee has reported, that
a lot of test data appears to have walked from our own labs.
So when you combine the effect of higher speed computers,
higher capability computers with actual real live test data,
such as that stolen by the Chinese and you have an extremely
deadly combination. You have the ability to leap frog
generations of development trial and error and come up with
virtual simulation of nuclear tests which helps advance a
nuclear proliferation program, help them develop special
effects weapons, et cetera.
Mr. Ose. At some level of speed you can use a two-
dimensional analysis of the projected outcomes, which is
relatively inaccurate compared to three-dimensional analysis
above that level, and that is where the debate occurs, if I
understand the Cox report, as to where that level is at
present.
Dr. Leitner. That is one of the arguments made, but that
debate very often becomes an arcane debate which is intended to
create smoke and mirrors basically. Yes, a three-dimensional
model will yield better, more informative results than a two-
dimensional model. That goes without saying. But how much of
that relates to the actual MTOPS, the processing power, is
another story. It is like looking at an oscilloscope and saying
a 2 gigahertz oscilloscope will really give you some neat test
results if you can capture the data using that sort of device.
But for nuclear test results, 500 megahertz is all you need
to really engage in nuclear testing and analyze the results of
nuclear testing. Two gigahertz is very important but more for
telecommunications, fiberoptic, C3I, and satellite
communications. It does give the value added for nuclear
testing, no doubt about it, but it is not essential.
So the lines that get drawn and the arguments that get made
are convenient. They shift like the sands of the Sahara
depending on the political needs of the people making the
arguments, and they are almost always unreliable.
Mr. Ose. One of the points of your testimony is the
aggregate impact of the piecemeal transfer, that being you send
this piece here and then they put it together with a piece over
here, and all of a sudden they bring the pieces together and we
are no longer three, four, five generations ahead of them,
their equipment becomes comparable to ours.
Was that the substance of your point to leadership that we
were allowing our export in aggregate to develop the technology
that would make them the equivalent of ours?
Dr. Leitner. Yes, sir, it was.
When I authored that memo attached to my written statement
in 1990, I was basically illustrating that the particular
metric that was being used is not a metric at all but it is a
phrase called the gap closer. You look at these individual
technologies, transducers, resistors, all kinds of A to D
converters, they were trying to adjudicate whether or not the
decontrol of this particular item, would have gap closing
potential between us and whomever ``them'' happens to be in the
future. The answer almost invariably will be no. There is no
one separate component that is going to make a revolutionary
difference. The aggregation of various advances in various
fields that get integrated at the systems level is what I was
showing in that chart that was so violently received when I
offered it.
Mr. Ose. Thank you, Mr. Chairman.
Mr. Burton. Thank you, Mr. Ose, for your patience. Did Ms.
Schakowsky leave?
Mrs. Chenoweth.
Mrs. Chenoweth. Thank you, Mr. Chairman. As I sit here and
listen to your testimony, I am absolutely astounded that we
have Americans like you who are willing to place your personal
safety, your career, and your future in harm's way to protect
my generation, my children, and my grandchildren. I cannot tell
you how deeply grateful I am to you. And I do know how
difficult this hearing is for you. But from the bottom of my
heart, thank you so much. And I know that when the chairman
says that he will not be kind and will be protective with
regards to any further retaliation, I know he means it and I am
sure that this body stands united behind that position.
Dr. Leitner, I wanted to ask you, you made a very troubling
allegation that on one occasion your supervisors actually
changed your technical analysis license position from denial to
either no position or approval. And in the case of the Russian
supercomputers being approved for exports to two known nuclear
design facilities, how did you find out about this?
Dr. Leitner. It was purely fortuitous. I knew that this
position would be important. They were very important cases and
I put in my position before leaving. I was taking my family to
Disneyland on vacation, which is pretty appropriate given what
happened.
And then, when I came back, I decided to just look into the
status of those cases. I almost never do that because you get
too many cases to go back and audit the results. Plus I was
just curious, I wasn't looking for anything. I wouldn't imagine
that somebody would simply change my position and make it
appear as if I entered that position.
When I got back from vacation I opened up the computer and
I looked in there. I was just astounded to find out that it was
not the position that I authored. Before leaving on vacation, I
did print out copies of the position that I put in. And then I
forwarded that along with the revised new position still
bearing my name to my chain of command complaining and
demanding an investigation.
I think the data base is corrupt, and God knows how many
other times the same thing has happened. And you wouldn't know
until something blows up and somebody is doing an after
accident report, as happened with Iraq, when Congress
subpoenaed thousands of records of export licenses. Is there an
audit trail and who approved what and why, and you have no
evidence as the person doing the position that you did
otherwise other than what appears in the electronic record
because everything else is destroyed?
Mrs. Chenoweth. Precisely what impact did the change have
on the outcome of this case?
Dr. Leitner. Well, it was pretty funny what happened in a
macabre sort of way.
While the case was still hanging around and a formal denial
did not go out, it was revealed by Gary Mulhollin from the
Wisconsin Project on Nuclear Export Controls that there was a
diversion of several computers to those same facilities, that
they were illegally acquired in the hiatus between the time I
issued my denial and the case was still languishing. In the
meantime, there was a diversion of computers to Russia right to
those same facilities to engage in nuclear design work. Sixteen
of them I am informed by Mr. Maloof, 16 supercomputers, a
national security disaster as far as I am concerned.
Mrs. Chenoweth. Doctor, I wanted to ask you about the
McDonnell Douglas machine tools case, which is also very
alarming to me. These tools are the very tools that produce the
C-17 military planes, and you stated that your supervisor
actually ordered you to change your position of denial to an
approval because a decision, apparently from higher up, had
been made to approve the case.
Now, did you draft an approval position? Do you know who
ordered the approval of this case? Third, who do you think
ordered it?
Dr. Leitner. I never wrote the approval conditions. I wrote
the three or four page single spaced denial position on the
case. Michael Maloof and I worked very closely together on this
case and we were able to find out that the end user that it was
alleged that these machine tools would be going to never
existed. We even had the National Photographic Intelligence
Center put together a briefing showing how, during the course
of the whole odyssey when the Chinese were trying to pressure
McDonnell Douglas and intimidate them into providing this
facility, there was actually no activity at the location where
these machines were allegedly going to go to, but instead at a
cruise missile factory, there was a new wing being built, and
holes were being dug to receive the machine tools. The machines
eventually were diverted, some of them directly, to that cruise
missile factory.
I was ordered to change my position. I refused to do it. I
said there is no way I am going to do that. The case was taken
away from me, and my supervisor at the time went ahead and put
in a position of approval saying that he was being instructed
to. The instructions to my knowledge came from--the chain of
command at the time was the Deputy Assistant Secretary for
Counter-proliferation, Mitchell Wallerstein, David Tarbell, the
Director of DTSA at the time, and his Deputy, Peter Sullivan.
And following below that, it was either Mike Richey or Jim
Woody, the Director of Licensing, but I don't remember when
they--who was in charge at that particular moment. One
succeeded the other.
As for the real reason for it, I would rather not venture a
guess. I have plenty of theories.
Mrs. Chenoweth. Thank you, doctor. Mr. Chairman, I see my
time is up, but we will be having a second round of questions.
Mr. Burton. We will, I know that this is extremely
important what we are hearing today. I would like to tell the
Members that after this panel, we are going to go into a closed
door session in a cleared room for the last person because we
are going to have some classified material. The only people
that will be allowed in that room are Members and staff cleared
for top secret.
Mrs. Morella.
Mrs. Morella. Thank you, gentlemen, I appreciated your
courage and patriotism. I represent a great number of Federal
employees and retirees, and I feel strongly about civil service
and how paramount it is to a good democracy. And I was one of
the cosponsors of the Whistleblower Protection Act in 1989 and
then the enhanced amendment in 1994.
It just seems to me from what I have read and what I have
heard that it obviously is not working for you. I know that I
have had a recommendation, I think it was Congressman Weldon
said we should do something about it. I want to ask you what we
should do about it.
Is it in your view that we should come out with a piece of
legislation that will deal with people in high security to make
sure that they are given the whistleblower protections that
they deserve? Anything else that you think that this Congress
can do? My attitude is, what are we going to do about the
future? We can go back and look at the past, but we need to
learn from it. I know that this committee agrees that we want
to move ahead and see what we can do.
The second point, this morning I was chairing a hearing of
the Technology Subcommittee of the Science Committee, and it is
interesting, we were discussing what was happening with our
security websites in terms of computer security. And as I am
looking at the reports here, I am noticing that Colonel
McCallum, in your testimony, you talk about some of the very
things that came out this morning in our hearing dealing with
the concept of computer security. The lament we heard was
basically there is no implementation. We can have some policies
and we can say agencies should do this and do that, but there
is no implementation and there is that element of anonymity
there which is a real barrier to being able to follow through.
So I am wondering, I feel we should do more with regard to
making sure that agencies, certainly the high security
agencies, should have more of a responsibility for implementing
the guidelines and the regulations we have.
If you have some suggestions to offer to us at this time
and then maybe later, I would appreciate it. So if you would
respond to what our role can be in computer security and making
sure that whistleblower protection is protection and protects
all of our people, particularly people in your high security
situation, I would value it. Whoever wants to start.
Mr. McCallum. I can kick it off since I raised the computer
security issue. We struggled in the Department of Energy for
years with the separation of classified and unclassified
computer systems. I think as far as I know, at least within the
Department of Energy, our high security computer systems have
not been penetrated by hackers or others. But with the growth
of personal computers and office LANs, networks, and WANs, a
different set of issues developed.
In the eighties the--the National Institute for Science and
Technology developed a set of--and it may have been before
their name changed, a set of criteria to provide what I would
call prudent business security, the kinds of things that you
see banks and the people who have to transfer money implement.
In most of our Federal agencies those programs which have
been required to implement these standards over the years have
not bothered. In the early years, there was some attempt to use
the budget to assure implementation. Unless you had adequate
security plans and elements in place, you couldn't buy new
computers. Oversight went away over time. When you look at our
national laboratories, you find very poor security practices on
what is called unclassified but sensitive material. We have
seen in the Department of Energy that it is very easy to take
classified material and walk it across the hall and put it on
unclassified systems. Some of the proposals that we made in the
1995 timeframe included some simple tasks like the use of
different size floppy disks between your classified and
unclassified systems so somebody can't just avoid the security
practice. There are very simple implementation tools, but how
do we make our laboratories or agencies use them?
One of the levers might be the budget. If you don't have at
least some kind of a process to review these kinds of things
and some kind of an oversight process, maybe the budget gets
hit. I don't think that people in this town pay much attention
to things other than budgets, at the implementation level is
what I mean.
Another area is the whistleblower protection issue. I was
rather astounded to find that all of the things that we had
learned about people bringing forward problems, and I was very
familiar with these since Secretary O'Leary raised the flag and
called whistleblowers in to the table during her reign at the
Department of Energy, but I was astounded to find that there is
a serious loophole in the protection system. The Merit Systems
Protection Board is--in some circumstances unable to look at
cases where people have done their job, but an agency can pull
a thin guise of national security to halt the process. That is
what I meant by national security metric. It does not
necessarily have to be there but they have the trump card.
There should be an impartial third party, an institution, that
has the authority to look at these cases. No single
organization should be able to by personal or political whim
crush ``due process'' for any citizen of this country.
Mrs. Morella. I think it was again Dr. Leitner's testimony
where he talks about the IG. I have always felt that IGs should
be involved in this process of ameliorating concerns. If
anybody wants to address that. Mr. Maloof.
Mr. Maloof. I also raise the IG issue because Leitner and I
went up at the same time, and we were asked and invited.
Mrs. Morella. That was in your testimony, right.
Mr. Maloof. I know your time has just run out, but three
recommendations. The ombudsman idea not only for the IG, but
also a mechanism by which people with clearances can go to
members or to staff who are appropriately cleared with proper
information if our system refuses to act on it or is in some
way ignoring it. I think that there is a problem here, that
members are not being informed adequately or in a timely way.
Last, curiously, we could not get the Department to give us
legal representation if we sought it, even though we were
brought up here in our official capacity. They represent the
Department, they have made that clear, and I think we may need
a mechanism to allow for representation if under these kinds of
unusual circumstances we are invited or subpoenaed up and we
request representation, that there is a mechanism to do that.
Thank you.
Mr. Fox. Ma'am, I would just bring up three points quickly.
As an attorney, nothing breeds personal responsibility like
three little sentences. Personal liability, punitive liability,
and mandatory criminal sentences. I honestly believe that the
Whistleblower Act cannot become effective until you have those
types of penalties made applicable against those who direct
retaliation against government individuals, against government
officials and public servants who tell the truth. Those three
elements.
Mrs. Morella. Personal liability?
Mr. Fox. Personal liability. Personal liability where
retribution is shown to be directed by a specific individual.
Punitive liability in some significant multiple of damages
suffered. And finally, mandatory criminal sentences. That is a
violation. Retribution is a violation of the public trust that
we are all sworn to uphold. And where it effects national
security, I contend that mandatory criminal sentences are
nothing less than totally appropriate.
Thank you, ma'am.
Mr. Burton. I thank the gentlewoman. I will now take my
time. First of all, let me say that I have a granddaughter and
a grandson, and what I have heard so far today really causes a
knot in my stomach. We found out about Wen Ho Lee, the alleged
espionage person at Los Alamos who was left there for some
time, and the technology transfer. According to many
scientists, it was so bad that the Rosenberg espionage pales in
comparison, and yet it appears that the American people do not
seem to be that concerned about it. We all say the cold war is
over.
The fact is, we have a monolithic army in China that now
has all of this nuclear technology that we have spent trillions
of dollars developing, and they have the computers and all of
the other things necessary to implement these things and we
don't know how long it will take. At the very least, that
entire part of the world is at risk and possibly the entire
world. We don't know what the future holds.
And then we hear from people like Lieutenant Colonel
McCallum that at our nuclear laboratories the security has been
cut. The budget has been cut by as much as 40 percent, that in
certain areas the number of personnel that is supposed to be
there to protect the laboratories and protect the supplies has
been cut, and the documents that people use, the passes that
people use, the three colors that they use to get into
different facilities was combined into one so that the people
in charge of security cannot tell who is going in and out.
And then we find out that--from Dr. Leitner that he comes
back from Disney World or Disneyland and he finds that his
computer has been tampered with and that a report that he has
done has been changed 180 degrees. And then, you know, we hear
him being questioned about whether or not he is paranoid about
his superiors.
The fact is, as I understand it, your classification was
reduced from five to four about a year before this alleged
document was in your desk and you brought it to their attention
when they tried to pin some kind of security leak on you. So
they were already giving you a hard time before that ever took
place. And the only way that could have taken place in the
first place was if you were a security risk and they could
prove it. I don't think that that was the case when they
lowered you from class five to class four, was it?
Dr. Leitner. No, sir.
Mr. Burton. And Mr. Fox, I read this memo from Dr. Leitner,
and I am going to read just a little bit of it.
Mr. Fox wrote his report. After the report was sent, he was
evidently talking to Dr. Leitner and Dr. Leitner records that
upon returning, they were having a meeting, upon returning
about 15 minutes later Mr. Fox was visibly shaken. He asked
what was wrong and they went into the hallway to confer. He
said he was just ordered by Johnson, that is Mike Johnson of
OSD and PP, he said he was just ordered by Johnson to
completely rewrite his memo from one stating that China was a
nuclear proliferant to one stating that they were not, a 180
degree reversal. Mr. Fox related in great detail how he
explained to Johnson that such a change would be false and
dishonest. At that point Fox stated Johnson threatened to have
him fired unless he made the changes. He said that Johnson's
manner was very aggressive, abusive, and threatening. Mr. Fox
was quite upset about being blindsided like this. He said that
he cannot afford to lose his job, his family is very dependent
upon him and his income, and he didn't know what to do. And so
he did what he had to do, he changed the document.
My gosh, we are talking about the security of the United
States of America. And just because a foreign leader is coming
over here, whose country has been involved in espionage at Los
Alamos and Livermore and elsewhere, and because we want to keep
trade going on with him, we start mandating from higher ups,
from way above Mr. Fox's pay grade, Mr. Johnson, who said that
we have to change the document and lie to the American people
and lie to his superiors. The other people who will be reading
this document have to lie about whether or not the Chinese are
entitled to more nuclear technology because they are a
nonproliferator, and of course we know that is not the case.
That just boggles my mind. You know, some people might say you
fellows all have an ax to grind and the gentleman that is going
to go into the classified briefing has an ax to grind, but you
are not all together. You are not covering each other's
backside. By virtue of the fact that you are coming from
different areas and different perspectives, it lends more
credence to what you are saying. We have a whole host of people
that we are going to be interviewing who have been held up to
ridicule, who have been penalized because they suffered similar
things like you have. I can tell you that we are not going to
let this rest.
The last thing I would like to say before I ask any
questions, if I have any time left, is that the Secretary of
Energy, whom I did play basketball with, and I used to beat him
occasionally, Mr. Richardson, when he holds up a letter and
says, hey, these guys are friends of mine and I play basketball
with them and this letter doesn't mean blank, I want you to
know that letter did mean blank. It meant a lot. And while I
have high regard for Mr. Richardson, he went over to Iraq and
got our prisoners out of there and I think he has done some
commendable things. But when he came into my office and
indicated that Colonel McCallum was going to be fired or
demoted or reassigned, and tried to persuade me that we could
not hold this hearing under any circumstances, and then he and
his people went to the Speaker of the House and went to the
majority leader and the majority whip and tried to convince
them that we should not have this hearing, I think that is
going beyond the pale. I am very disappointed in his lack of
cooperation with this committee and his trying to stop this
hearing and impede the congressional process. Now we sent a
subpoena to him, as I stated earlier, and he has not complied
with the subpoena and he has not responded to my letter. He has
not responded to Mr. Souder's letter. In fact, he is just plain
ignoring the Congress of the United States and this oversight
committee. I intend to ask him to testify before this
committee, along with some of the other people, about some of
the things that have happened and we will be doing that in the
near future.
I would like to have from you, gentlemen, before you leave
or at your convenience, I would like to have a list of the
people that can corroborate what you have told us here today,
or other people who may have suffered the same kinds of
problems in these various agencies, particularly the Department
of Energy and the Department of Defense. We will investigate
those people as well and we will have them talk to our
attorneys so that we can get to the bottom of this because
there should be no person in a top secret position in this
country, especially where our national security is involved,
that is afraid to talk about violations of security.
Every man, woman, and child depends upon all of you and
people like you out there to make sure that our secrets are not
given to potential adversaries where they can use them at some
point in the future to blackmail us and endanger the lives of
the people that we are supposed to represent. I would like to
have that information from you and we want to pursue this. I
will work with Connie Morella to make sure that the
whistleblower statute is enhanced so that there will be
protections.
I also don't believe that you ought to be able to come up
here and be denied legal counsel. If you are coming up here at
the request or subpoena of the Congress of the United States,
you should not have to, out of your own pocket, hire legal
counsel because you are an employee of that agency and you are
under a duly authorized subpoena. I think you should be
reimbursed for your legal fees if you have any, and at the very
least we are going to make sure in the future that you don't
have to deal with that kind of a problem because we are going
to move for legislation to deal with that.
Does anybody seek to have any more of my time?
Mr. Souder. Yes.
Mr. Burton. Mr. Souder, I yield to you.
Mr. Souder. I hope that we can work with the DOE for some
sort of protection. If these gentlemen identify other members
of the anti-Communist cells, it is almost like the early
fifties backward. If people are willing to come forward, that
they get some protection and they are not also singled out
because we don't want to identify the anti-Communist cells and
have them bashed.
Mr. Burton. Let me ask one question. Mr. Maloof, you
referred to front companies?
Mr. Maloof. Yes.
Mr. Burton. Could you tell us about any front companies
that you are aware of or where they have been used to transmit
information or material to a foreign entity or government?
Mr. Maloof. I think the identity of many of the companies
is something that we can handle in a classified session.
Generally speaking, if a product cannot be obtained legally
through a licensing process, it has been my experience to find
that that item then is sought piecemeal or in entire form as
part of an indigenous weapons development program. They may be
going through Asia, Europe, or a combination of countries.
Mr. Burton. If some of that information is classified, I
would like to officially request it, and we will do that in
closed meetings and we will get together with Mr. Waxman so we
have the minority there as well.
Mrs. Morella.
Mrs. Morella. Dr. Leitner didn't have an opportunity to
answer before, and I want to give you that opportunity.
Dr. Leitner. Thank you. I appreciate that.
One of the things I really recommend be read, since you
mentioned the issue of implementation, and how things fail in
implementation, is an excellent book written by Abraham
Wildovsky entitled, ``Implementation.'' The whole point of the
book is that policy statements notwithstanding, political
statements notwithstanding, the actual policy is seen in its
implementation. If you want to see what the real policy is,
look at what has been implemented because what is on the ground
is what the real policy is. It is a great book, and I recommend
it to any student of political science to read.
One of the things I really would hope that would come out
of this in terms of a regulatory fix that at a minimum, would
make the agencies follow their own rules. We have the example
of Lieutenant Colonel McCallum being victimized by an agency
which at its own discretion applies rules when it suits them.
The same thing is true in the Department of Defense. I have
had the same experience of trying to go through the process of
a grievance on an issue, a personnel issue, and find that the
entire system is loaded in terms of protecting management. The
individual employee has virtually no rights. The personnel
office is generally there to support management and they tell
you this. You ask the personnel office, will you represent me
in this quest for this grievance on this personnel issue, they
say we can't do anything for you because we are here to
represent management. They tell you this in an unabashed way,
and you have no where else to go, even for an interpretation of
the rules. Deadlines, drop dead dates on grievances are
strictly enforced when it comes to the complainant. Yet for the
agency, who is the perpetrator of whatever the onerous action
is, they give themselves extensions and all kinds of time while
consistently missing their deadlines and the case is not
dismissed.
It has been my experience on EEO complaints, on political
complaints, or administrative complaints, that the appeals
process or the grievance process is more akin to a gauntlet
which an employee has to run and it is never ending. The people
at the beginning of the line you are going through move around
to the end of the line, and the end never appears. You never
see the end of the tunnel. It is designed, in our collective
impression, to enervate the complainant to the point where
there is no life left in them if they ever get to the end of
process. I think that is a real problem.
Also, if it can be fixed so that the Office of Special
Counsel can operate and react faster, that would be a great
boon because right now they move in what can be approximated as
geologic timeframes. By the time your complainant actually
starts getting investigated, you have retired or been fired or
so beaten down that you are compliant.
So I think in a practical sense these fixes really need to
be made because on the ground again where policy really is and
its implementation, it is very different than the public
statements of the executive branch.
Mr. Burton. Thank you.
Mr. Waxman.
Mr. Waxman. I want to say that I am struck at this hearing
by the differences I see in Lieutenant Colonel McCallum's case
and that which is presented to us by Dr. Leitner and Mr. Maloof
and Mr. Fox. In Mr. McCallum's case, I think he was treated
unfairly. I don't know what the motivation was behind that, but
the result is that he has had to pay a price, and the
procedures just were not followed which put him in the position
that he is in today, which is that he is getting paid, but he
is not allowed to do his job. But the other three are all
working. They are all at their jobs. They are all there. They
have not seen any actual consequences from the retaliation
except failure to get promotions, failure to get bonuses. Those
are real consequences, but I have to say that I don't think
from what I have heard today that I am convinced that there was
a wrong done to them. Maybe there was, but I am not convinced
of it as I am that there was to Mr. McCallum.
Dr. Leitner, he was critical of the Bush administration and
his supervisor was very, very strong in his statements calling
him a zealot, and he was asked by his superiors not to work on
a particular case so he is off on 60 Minutes and making other
appearances, criticizing his agency. I don't know how a
Department is supposed to work when you have people within a
Department, once a decision is made by those in charge of
policy, making critical statements in the public media and then
asking, why was I passed over for a bonus when I call the
people that I work with to such criticism.
I must say, Mr. Fox, I can't believe that part of your memo
where you talk about your view of Communist China is a
technical analysis. Maybe if we discuss it further I can come
to that point. I know that you all want personal
responsibilities, but one of the things that this committee
ought to look into is how is a Department supposed to run. If
somebody on my staff had a policy disagreement with me and then
went on 60 Minutes and said the reason that I voted the way
that I did was because of a campaign contribution or whatever,
we would fire them. No one seems to get fired for all of these
criticisms of what the Department is supposed to do.
On the other hand, we want to make sure that the people who
are whistleblowers and have different information to give us
have the opportunity to do it.
Mr. McCallum, I think you are in a completely different
category. Maybe the others are in your situation, but I am not
convinced as I am in your case. I think the Secretary did you a
disservice. I am going to talk to him personally, and I want to
find out whether he reacted in retaliation or whether it was an
overreaction on his part because of other things that were
going on. But I think he did a disservice to you and I want to
express that to you and express my sincere regret over the
situation you face.
I don't think that all these witnesses ought to be lumped
together, and I don't think that the case has been made to do
that.
Dr. Leitner, Mr. Maloof, and Mr. Fox all have very strongly
held views. And they weren't the views of their superiors, and
they were doing things that might not have been their jobs, but
they are all still there. They are all still working, and maybe
that is one of the great things about this country. If you went
to Communist China or Russia, dissenters are treated not with
the kind of sensitivity that we have in this Nation.
Mr. Fox. Mr. Chairman, may I have the opportunity to
respond to the honorable Mr. Waxman's comment?
Mr. Waxman. I didn't ask you a question, but please go
ahead.
Mr. Fox. Is this an appropriate time now, sir? Sir, with
all due respect I believe your comments particularly pertaining
to my presence here today are somewhat of a serious
mischaracterization, and I would like the opportunity to
explain this.
First of all, sir, please let me explain that the format I
established for the review of the subsequent arrangements was
utilized before and after this situation and this was the only
time where Mr. Johnson and I had a disagreement to the point
where it was demanded that a rewrite take place.
Over 400 reviews, sir, I reviewed state action and the
history of state adherence to existing agreements on behalf of
a dozen countries, and there was no objection on the part of
the Department of Defense.
In particular, sir, I went through my records yesterday and
I pulled out some illustrative reviews. On May 28, 1997, I
reviewed state action as part of an export to Armenia, an
export I recommended approval of, safe and secure nuclear
generative technology to replace deteriorating Russian nuclear
reactors. And I considered Armenia's state action in that case.
On August 18, 1997, I did that again. On September 11, 1997, I
did----
Mr. Waxman. Mr. Fox, the red light has come on. I have
listened to you and I am open to being convinced otherwise. I
am not of the mind after hearing all of this testimony that you
or Mr. Maloof or Dr. Leitner are in the same category as Mr.
McCallum.
Mr. Fox. On February 22, 1999, I was officially prohibited
from any further involvement in the export control area by Mr.
David Tarbell, who was formerly the head of the Defense
Technology Security Administration and is now Deputy Director
of the Defense Threat Reduction Agency, Technology Security
Directorate. I was specifically prohibited from any further
involvement in that area, either by employment or detail on the
basis of his determination.
Mr. Burton. I yield to Mr. Souder. I would like to have
those documents submitted for the record so we can show the
consistency of your reports, No. 1.
Mr. Fox. I will be more than happy to, but yesterday I was
informed that the request will have to be made through the
DOD's General Counsel office.
Mr. Burton. Then we will make it through the General
Counsel's office, but we would like those so we can show the
consistency.
You have been discriminated against because of the report
that you wrote, where you were told by higher ups that you had
to change it 180 degrees. And because you did your job, and you
were ordered to change it because you might be fired if you
didn't, thereby giving a false impression to this country about
the security of the country and about the proliferation of
nuclear weapons by the Chinese Communists and they are
Communists, then you were penalized. And I don't see how that
differs a great deal from some of the others.
Dr. Leitner, of course, came back and had his computer
tampered with and his report was changed. That is just one
case.
I think we will have other people up here following the
same line of questioning in the future and we will have people
from the Department of Energy up here and the Department of
Defense to explain why these things happened. Mr. Souder.
Mr. Souder. I want to thank Mr. Waxman about his
willingness to go to the Secretary about Mr. McCallum's case. I
also insert in the record support for his position from the
various unions of government workers because I believe--because
he has been placed on leave, there is a difference in the cases
in my opinion, at least the level of the administration
overreaction.
Mr. Burton. Without objection, so ordered.
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Mr. Souder. I did want to make an additional comment on Mr.
Fox's case because the ranking member read some of the memo and
I wanted to put a little bit of context on your memo as I
understand it.
In the first part of your memo that was labeled ``keep,''
you basically say it is a fairly straightforward--I think your
exact words are relatively simple and direct. United States and
China will be afforded annual opportunities to send technical
experts to each other's civil reactor sites.
Then there was the section that Mr. Waxman read where you
made a very passionate case about marxism which arguably was
not technical and I say as a passionate anti-marxist it is not
technical, but it sets up in your second to last paragraph you
close with, ``Accordingly, unless there exists definite
meaningful verification provisions and grafted upon this
diplomatic agreement, there is no practical way of determining
or enforcing adherences to the admittedly peaceful goals
enumerated within the proposed reciprocal agreement.''
Backing up one paragraph from there, in other words, all of
these other paragraphs were predicates to your final conclusion
which said, while the agreement looks innocuous, it in fact has
to be put in context. You say, in short, we have negotiated a
technical exchange agreement concerning critical nuclear
technology with an aggressive and ambitious proliferant state
unrestrained by political or moral considerations and which
discards diplomatic undertakings with studied regularity.
Ambiguities and disagreements under this proposed reciprocal
arrangement are by its very terms to be resolved by diplomatic
means. Therefore, establishing why you have concerns about
their ability to follow through unless, in your second to last
paragraph, there are meaningful verification provisions, what
you are in effect saying in the first part of your memo, while
this looks innocuous it in fact is not, and to your concerns
which you articulated which can be disagreed about, but it does
relate to the substance of your memo which says there must be
verification.
Mr. Fox. Coming from an arms control background, I pay
particular consideration to the verifiability and the
credibility of an agreement, particularly in this instance
where we are talking about the sole verifiability and the sole
guarantee of the nondiversion of peaceful, dual use technology
and expertise to military purposes is bare bones diplomatic
representation.
Mr. Souder. Because you can't make an analysis about the
technology, the technical parts, unless there is a verification
and in fact if you just made the assertion at the end, they
would have probably said why did you make that assertion?
Mr. Fox. Absolutely. I knew the seriousness of what I was
doing and I tried to back up as much as I could. Unfortunately
this is concerning intangible technology, the exchange of
technical visits. How do you quantify that? How do you quantify
the unquantifiable? We spent a great deal of time in Vienna
exploring that when I was the DOD representative to the Nuclear
Suppliers Group. How do you regulate expertise? That is where
you cross that fine line from purely technical considerations
into technical considerations that view things in the context
of reality, of real politics. You cannot consider these things
in a vacuum.
Mr. Souder. And you have disagreements about technical
verification, but you shouldn't be subject to threatening,
firing, or have a long-term impact occur.
Mr. Fox. This was the only time that this happened.
Subsequently and before it never bothered anybody, and
subsequently I was indeed elevated to represent DOD overseas
for a year until relieved by my agency's reorganization. I
ended up serving the Department of Defense as DOD
representative to the Nuclear Suppliers Group and Zanger
Advisory Committee to the International Atomic Energy Agency
until subsequently relieved.
Mr. Souder. I thank the chairman for yielding.
Mr. Burton. Mr. Shays.
Mr. Shays. Thank you.
Mr. Fox, early on we looked at your memorandum and in your
memorandum you were told that you could keep certain parts, and
then there was a long line slashed out. Taking out basically
half of your memorandum and inserting in another document. It
is your testimony before this committee that what was taken out
was your determination that this agreement should not go
forward and what was inserted in was the statement that
basically said it should go forward; is that correct?
Mr. Fox. Yes, sir.
Mr. Shays. So when I read that according--in your
memorandum unless there exists a definite meaningful
verification provisions graft upon this diplomatic agreement,
there is no practical way of determining or forcing adherence
to the admittedly peaceful goals enumerated within the
agreement. Without such bilateral undertakings or unilateral
safeguards, the proposal measurement presents such a
significant degree of risk as to be clearly inimicable to the
common defense and security. And what was inserted in was the
Defense Special Weapons Agency determines that the proposed
agreement is not inimicable to the common defense of security
of the United States?
Mr. Fox. Yes, sir.
Mr. Shays. So you came to one conclusion, and in the end
you were asked to come to a totally different conclusion.
Whether or not Mr. Waxman likes the supporting document or not,
the fact is that you came to a conclusion which you were asked
to do; is that not correct?
Mr. Fox. Yes, sir.
Mr. Shays. Your job was to come to a conclusion and you did
your job?
Mr. Fox. Yes.
Mr. Shays. Did you like being the export control
coordinator?
Mr. Fox. Even though it added approximately 20 hours a week
onto an already full workweek, I was very happy with the job.
Mr. Shays. You were relieved of those duties in October
1998 and transferred back to arms control. Why do you believe
you were relieved of that duty?
Mr. Fox. On October 1, 1998, the Defense Special Weapons
Agency was combined with several other agencies to form the
Defense Threat Reduction Agency. Prior to that time, several
months previously, we were encountering significant concern
over the retention of any export control responsibilities,
particularly in the nuclear area, in our organization. And upon
the establishment of the Defense Threat Reduction Agency, it
was determined by my senior management of the agency that we
would lose that mission.
I should point out, and I make no aspersion's whatsoever,
that I had objected to several technology transfers on behalf
of the United States national labs to the Russian weapons labs
and similar proposed transactions with the Chinese weapons labs
and that our present Director is an IPA from a national lab.
Mr. Shays. But it is your testimony that if you didn't
change your memorandum, that you in fact would be fired?
Mr. Fox. Yes, sir.
Mr. Shays. So at the time you were told you better change
it or else?
Mr. Fox. Yes, sir.
Mr. Shays. Dr. Leitner, it is my understanding that you
wrote a memo entitled, subject, China certifications events at
the October 24, 1997 meeting, the Subcommittee on Nuclear
Export Controls. Can you put that up. Is that a memo that you
in fact wrote?
Dr. Leitner. Yes, sir.
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Mr. Shays. You wrote it to whom?
Dr. Leitner. Basically for the record. I didn't send it to
anybody. I wrote it in order to document the extraordinary
event which occurred that day and as I was an eyewitness I knew
that it would someday have relevancy to the debate on China.
Mr. Shays. Do you have that in front of you?
Dr. Leitner. Yes.
Mr. Shays. Would you read the last paragraph of page 1?
Dr. Leitner [reads]:
Upon returning 15 minutes later, Mr. Fox was visibly
shaken. I asked what was wrong and we went to the hallway to
confer. He said he was just ordered by Johnson to completely
rewrite his memo from one stating that China was a nuclear
proliferant to one stating that they are not. 180 degree
reversal. Mr. Fox related in great deal how he explained to
Johnson that such a change would be false and dishonest. At
that point Fox stated that Johnson threatened to have him fired
unless he made the changes. He said that Johnson's manner was
very aggressive, abusive and threatening.
Mr. Shays. Would you read the next paragraph?
Dr. Leitner [reads]:
Mr. Fox was quite upset about being blind sided like this.
He said that he cannot afford to lose his job and that his
family was very dependent upon him and his income. He didn't
know what to do.
Mr. Shays. Why don't we just stop there. The bottom line to
it is this was an event that you thought was serious enough to
document and recall?
Dr. Leitner. Yes.
Mr. Shays. Mr. Fox, have you seen this memo that Dr.
Leitner is referring to?
Mr. Fox. Yes.
Mr. Shays. Is the memo accurate?
Mr. Fox. It is accurate except in one regard. I want to
emphasize here that my immediate chain of command up through
and including Dr. Charles Gallaway and up through and including
Rear Admiral Jackie Allison Barnes, did not pressure me to
change my mind or opinion in this regard, and that they were
all supportive of me and have continued to be supportive of me.
Other than that respect, the memo was accurate.
Mr. Shays. So it wasn't your immediate chain of command, it
was a bit higher than that, and that was?
Mr. Fox. It was whoever was above Mr. Johnson.
Mr. Shays. But Mr. Johnson relayed it?
Mr. Fox. Yes. He relayed it in a manner that indicated that
he was not comfortable doing so, but he did so.
Mr. Shays. The bottom line for me is that you are here
because we subpoenaed you. I haven't seen you on 60 Minutes.
You are a new face to me.
Mr. Fox. Yes, sir.
Mr. Shays. I think each of you are different and have your
own experience. We can't lump you all in one pile. You are
human beings and individuals, you are trying to make a living,
and frankly you got screwed.
Mr. Fox. Yes, sir, I agree. I want to point out except for
this subpoena, I have done everything possible to avoid
bringing the disagreements within our organization to light.
The only reason that I have gone outside of the Defense
Threat Reduction Agency and have pursued my complaints outside
of that is because I have been given no recourse within.
Mr. Shays. You owe no one an apology. We make decisions
based on what we think is best judgment, and then we in
Congress make determinations.
I happen to support trade with China, but I have to tell
you I am influenced by what you do, and I want what you do to
be accurate.
Mr. Fox. Thank you very much. Sir, I only wish to establish
that for the record that I have no ax to grind.
Mr. Shays. Very good, thank you, Mr. Chairman.
Mr. Burton. Mr. Horn.
Mr. Horn. Thank you very much, Mr. Chairman. Just a couple
of short questions, then I will get down to the more
substantive ones.
Mr. Maloof, in your written statement, you refer a number
of times to the front office. Just for the record, could you
put the names to who is the front office for you.
Mr. Maloof. David Tarbell, the Director, Technology
Security, and his Deputy, Peter Sullivan.
Mr. Horn. You also noted that you visited the Inspector
General's office, and you were just sort of told to go away.
Mr. Maloof. Yes, sir.
Mr. Horn. Who was telling you to go away?
Mr. Maloof. I can get that for the record.
Mr. Horn. Get that for the record. Without objection, I
would like that for the record.
Mr. Maloof. Yes, sir.
Mr. Horn. Now, did you ever have a chance to talk to the
Inspector General herself?
Mr. Maloof. No, sir.
Mr. Horn. OK. Let me ask all of you this question. Was
there a greater number of export licenses coming before you in
one way or the other between January and June 1996 than
ordinary, just computers I'm thinking of that, in terms of
sales abroad that might worry you one way or the other, was it
out of proportion in that period?
Mr. Maloof. Are you asking me?
Mr. Horn. Yes, out of proportion from say 1995's export
licensing going through you for computers.
Mr. Maloof. It depended--well, given the level that was
subsequently required by the Defense Authorization Act, we did
not see those computers between the 2,000-7,000 MTOP range, we
had no notification. When the legislation was passed, I believe
in 1996, we then began at least to get a notification, but for
the most part, many of the computers that were going
principally to China were not coming through the licensing
process whatsoever.
Mr. Horn. So you didn't see anything unusual, that happened
to be a Presidential election year, and I'm just curious if
that changed things in any way. So you're saying you didn't
really see much change in the request for computers being sold
abroad.
Mr. Maloof. Well, that's different. There were always
computers at lower thresholds that were coming through, but the
higher level ones, particularly to China, were not seen until
the defense authorization act required notification.
Mr. Horn. And when did that take effect?
Mr. Maloof. It was fiscal year 1998 I believe.
Mr. Horn. OK. You're familiar probably with this report. I
don't know if you've had a chance to read it, but the Special
Investigative Panel of the President's Foreign Intelligence
Advisory Board, otherwise known as the Rudman report, entitled,
``Science at Its Best, Security at Its Worst.'' I don't know if
you've a chance to look at it. But I want to read a few things
into the record that the Senator and his three colleagues have
said: ``After review of more than 700 reports and studies,
thousands of pages of classified and unclassified source
documents, interviews with scores of senior Federal officials
and visits to several of the DOE laboratories at the heart of
this inquiry, the special investigative panel has concluded the
Department of Energy is incapable of reforming itself
bureaucratically and culturally in a lasting way, even under an
act of the Secretary.'' A note on page 4 of the foreword, ``Our
panel has concluded that the Department of Energy when faced
with a profound public responsibility has failed.''
On page 5, ``Meanwhile the Department of Energy with its
decentralized structure confusing matrix of crosscutting and
overlapping management and shoddy record of accountability has
advanced scientific and technical progress, but at the cost of
an abominable record of security, with deeply troubling threats
to American national security.''
And I would like to ask, Colonel McCallum, were you ever
asked to appear before that panel?
Mr. McCallum. Yes, Congressman Horn, I was asked. I believe
on April 16th.
Mr. Horn. Yes. As I understand it, you were contacted by
the executive director of that panel, Randy Deitering; is that
correct?
Mr. McCallum. That's correct, sir.
Mr. Horn. Now, as I understand it, you were even scheduled
to testify on April 22; is that correct?
Mr. McCallum. That's correct.
Mr. Horn. And then by e-mail you notified Mr., is it
pronounced, Mahaley.
Mr. McCallum. Joseph Mahaley.
Mr. Horn. He's the Director of the Office of Security
Affairs. And you notified him about the request from the Rudman
panel?
Mr. McCallum. That's correct, sir.
Mr. Horn. Did you get any response from him?
Mr. McCallum. I did not.
Mr. Horn. Did you attend that meeting?
Mr. McCallum. No, I did not, sir. I was placed on
administrative leave the following Monday. I was called by Mr.
Mahaley the next day and asked to delay my appearance in front
of Senator Rudman's panel until after the Secretary had a
chance to speak with them. I advised Mr. Mahaley that I thought
that if the Secretary wanted to appear before me it would be
appropriate for the Department to ask that question. Mr.
Deitering called me back the next day, asked to delay my
meeting with them, and he would call me and reschedule. I
haven't heard from him since.
Mr. Horn. He didn't give you any reason why you should be
delayed?
Mr. McCallum. He said they were behind. He said that there
was the 50-year NATO celebration, and they had a number of
people to speak to. He said he would call me back when they
rescheduled.
Mr. Horn. Now how about Mr. Mahaley, did he call you again?
Mr. McCallum. He did not, sir.
Mr. Horn. As I understand, he called you again around April
20th, and he asked you then what? This is the point where you
might appear before the Rudman panel.
Mr. McCallum. Yes, this is when I was scheduled. Mr.
Mahaley asked me to delay my appearance before the panel until
after the Secretary had an opportunity to speak with them
first.
Mr. Horn. And do you know if the Secretary did speak to
them? You were out of it at this point and told not to go
there. So was the reason simply not that the Secretary wanted
to precede you?
Mr. McCallum. That's what I took from that, sir. We were
told in a later meeting with the General Counsel's office that
the Secretary had met with them. As a matter of fact, I believe
that Mr. Eric Figi, the Deputy General Counsel at the
Department said that the Secretary had been successful in
having the Senator Rudman's committee not speak to me.
Mr. Horn. I'm told here that this is sort of a coincidence
here on the Secretary and you and when you--were you ever
talking to them. As I understand it, the Department of Energy
was receiving the harshest criticism from the media during this
period for its handling of the Wen Ho Lee espionage case at Los
Alamos. And you were put on leave about that time or that exact
day, weren't you?
Mr. McCallum. It was right about that time, Congressman. I
don't remember the exact date that Senator Warner held the
hearings.
Mr. Horn. Yes, actually the Secretary was having a few
media nightmares that day because the General Accounting Office
was testifying before Congress and dusting off 20 years worth
of General Accounting Office reports that had warned the
Department of Energy about the lack of security at their
laboratories, and that's also when you were put on leave. And 3
days after being asked to testify before the Rudman panel,
that's when it happened.
So it's sort of convenient timing as I looked at the dates
here. And I guess I would ask, do you think that the Secretary
tried to dissuade the Rudman panel from hearing your testimony,
or do you have any knowledge of that?
Mr. McCallum. The General Counsel told us in a meeting that
the Secretary had been successful in dissuading them from
hearing my testimony.
Mr. Horn. Let me now move to another thing on the security
bit, and the last question I will have. You mentioned I believe
to our staff the number of things that were going on in some of
these laboratories, and there's--we've got here about 10
examples of security instances involving foreign visitors on
Department of Energy sites.
Do you know any of those that were, say, the worst of the
lot, and then I would like the others to be put in the record.
Mr. McCallum. The worst of the lot, sir, I can't talk about
because they're still classified. Many are being investigated
by the Federal Bureau of Investigation. Some that were
unclassified, that we wrote a number of reports on within the
Department and reported included incidents, one of which I
referenced in my testimony, where a Russian visitor took an
uncleared laptop computer in a security area at the Savannah
River site, and another incident, a Russian visitor was found
digging through a dumpster in the vicinity of a security area.
Mr. Horn. Were these incidents in areas such as professors
or were they--just what kind of visitors were they?
Mr. McCallum. The one with the computer was a technical
visitor who is an expert in nuclear materials controls. The
identity of the individual who was found digging through the
dumpster, I cannot recall. I haven't had access to files in my
office for a few months. But there are a number of incidents
like that that have occurred in our laboratories over the last
few years with the increase in foreign visitation. These
incidents are regularly reported up-line through our operations
security program.
Mr. Horn. One is here, foreign national discovered
illegally wire tapping a DOE meeting. Mr. Chairman, I would
like to put the whole list in the record at this point.
Mr. Burton. That would be fine, Mr. Horn. And we will put
those in the record and ask Mr. McCallum or Lieutenant Colonel
McCallum to answer those for the record.
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Mr. Burton. Did you have any questions, Ms. Chenoweth?
Mrs. Chenoweth. Thank you, Mr. Chairman. It's been a long
day, hasn't it, gentlemen? I think I'm the last of the Mohicans
here.
Mr. Burton. There's one more Mohican.
Mrs. Chenoweth. One more Mohican. I'm struck. Last week I
read where whistleblowers in the Department of Interior
received a reward of $350,000 for whistleblowing, plus one-
third of a settlement with oil companies in the future. It
strikes quite a contrast to what I'm hearing today. Mr. Maloof.
Mr. Maloof. Yes, ma'am.
Mrs. Chenoweth. I have some questions for you. You
described in your statement that once the satellite waiver case
broke in April 1998, the staff was instructed not to discuss
the case, even though it was the subject of a grand jury
investigation.
That is the case, isn't it? The staff was instructed not to
discuss the case.
Mr. Maloof. Correct.
Mrs. Chenoweth. Are you aware of any pending Hughes or
Loral export license applications from that time period?
Mr. Maloof. Yes.
Mrs. Chenoweth. Was this information considered in the
review of these applications?
Mr. Maloof. From my vantage point, I don't think so, and
that's why I was a little concerned about it. We have had--I to
this day don't know the context of the Justice Department's
investigation, where they're heading with it, but if there was
in fact wrongdoing, then we--as I said in my testimony we've
had precedent to put a hold on any further proceedings until it
could be clarified.
And I even had a customs agent admit to me that continuing
approvals were actually harming their case. And I once again
informed our management about that.
Mrs. Chenoweth. What is DOD policy regarding the review of
applications from a company that is the target of a pending
criminal investigation?
Mr. Maloof. Well, generally we wait for an indictment. We
have imposed penalties in the past on companies by instituting
DOD foreign acquisition regulations and in order to--but first
we want to be sure that we're on solid ground. We've also had
cases, at least two that come to mind, where it was so
egregious that we immediately imposed suspension of all
licenses. In fact, just last week on another case, we did just
that to the tune of some 70 license applications.
Mrs. Chenoweth. Well, Mr. Maloof, was that policy followed
in this case?
Mr. Maloof. Not in my opinion.
Mrs. Chenoweth. Did you attempt to find out why the policy
was different in this case?
Mr. Maloof. Oh, yes.
Mrs. Chenoweth. What did you find?
Mr. Maloof. I found a lot of circumstantial evidence
particularly reading outside, and when you put them in context
with what was occurring at the time, it began to paint a
picture. Again, from my standpoint right now, I can only
speculate, although I harbor a lot of personal opinions about
it, but in my opinion, there was increasing favoritism, there
was a rush to push these--given the timeframe in which they
occurred, there was a push to look at these license
applications from a political standpoint.
I know our management had visited the facilities a number
of times. We were told previously to expedite those
applications. This was--what I said earlier was not the first
time and the fact, too, that the Chinese were concerned about
acquisition of technologies, and, again, given that time
period, we saw that rush.
And if we looked at the time of the waivers that did occur
and you compare them with when there were visiting Chinese, put
all of that information together, it paints a composite that
you can't ignore, given the information that you're looking at
at the time and you have to put it into a context.
And that's part of our job, to look at both classified and
unclassified information and bring it together to form a
picture, that's part of our role that we do in terms of
analysis. And when we bring that to the attention of our
management, we expect them to take it seriously and admittedly,
I never received responses.
Mrs. Chenoweth. Well, in fact, you've testified that you
were contacted by a Deputy Assistant Secretary public affairs
for information regarding the satellite waiver case. Wasn't it
unusual for someone of his level to contact you or your
division regarding a matter of this magnitude?
Mr. Maloof. I thought it was unusual. And it sent a signal
to me at least that something was wrong here, that there was
something going on, in effect bypassing the process, and I have
to say, in many cases, I have expressed opinions about cases.
And I have been overturned on them.
I don't go raising Cain about things, but in this case I
did inform our management, and I began to wonder why this
Assistant Secretary was coming to me with this question. It was
part of that picture of things--of information we were
receiving and had already had.
Mrs. Chenoweth. Well, when he told you that the Secretary
was blindsided by the events surrounding the story, what was
your reaction? I mean, you know, didn't you think it was
strange that the Secretary didn't already know about this?
Mr. Maloof. I personally did. And I know in previous
administrations we have informed the Secretary of these kinds
of cases. The priority of technology transfer was considered
particularly by Mr. Weinberger to be held paramount. I was very
surprised. And, in fact, we have not had an export license case
actually go to the Secretary during this administration.
Mrs. Chenoweth. Thank you, Mr. Maloof. I have a lot more
questions for you, but if the chairman would indulge me I would
like to just submit them in writing.
Mr. Burton. Without objection so ordered. And we will ask
you gentlemen to respond to the questions that we will submit
to you in writing.
And this last Mohican, would you have any time to yield to
me, maybe 10 seconds or 15?
Mr. Souder. Yes, I will try to go fast in my others.
Mr. Burton. This is the last of the Mohicans,
Representative Souder.
Mr. Souder. The Hoosier Mohican.
A couple of things, one is that Mr. Waxman earlier raised
the very difficult question about how we react with certain
members of our staff, and we've dealt with this in the Travel
Office in this committee where we heard it was no big deal, but
in fact they were reinstated, but these are nuclear secrets.
This isn't a matter of policy disagreements, as I understand,
Mr. Maloof, you are Chief of Technology Security Operations,
Defense Threat Reduction Agency. Dr. Leitner is Senior
Strategic Trade Advisor for Defense Threat Reduction Agency,
Mr. Fox is a Defense Special Weapons Agency Arms Controls
Specialist. Colonel McCallum is Director, Office of Safeguards
and Security.
If you all are having concerns about security, this isn't
just a policy disagreement. And we also have hindsight being
valuable here, the fact that you were right, that in fact the
secrets did get out through visitors, that we in fact have had
security lapses. And looking at this in hindsight, it should
get us to look more carefully at the whistleblowing options,
how to have this and, at the very least, revoke the type of
procedures that have been taken.
But there was another thing that intrigued me, Dr. Leitner,
and you made this point several times, and in your testimony,
you developed it further about the fact that the United States
doesn't have a modeling simulation and research branch that
would be dedicated to conducting cumulative and technical
impact assessments. That came up quite frankly in Mr. Fox's
memo. That's the same type of thing. It looks kind of so this
isn't any big deal in the trade question.
You also bring the Department of Defense in for some
scathing reviews, and actually were fairly kind to the Commerce
Department. But I wanted to read something from the Cox report
that I found--one of the more disturbing things--I mean it's
about every page is disturbing, this was in volume 3, page 74,
75, and 76 in this unanimous report, it talks about--Dr.
Leitner, in your testimony, you say that 1995 we had these
computers suddenly jump up from 2 to 7,000 that could be
moving.
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Mr. Souder. And interesting in that time period, I think
the President changed it in October 1995, John Huang was
actually the person who was in charge. He was a Deputy
Assistant Secretary, not in charge, as Deputy Assistant
Secretary for International Economic Policy, and in the report,
which I'm going to read, so I'm not accused of editorializing,
it says ``During the 18 months he was at Commerce, Huang called
the Lippo Bank 232 times,'' which had been implicated with
China Aerospace and other front organizations, ``in addition to
29 calls or faxes to Lippo Headquarters,'' and this isn't a
Republican report by the way, this is a unanimous Republican-
Democrat report. ``Huang also contacted Lippo consultant Maeley
Tom on 61 occasions during the same period. Huang's records
show 72 calls to Lippo joint venture partner C. Joseph
Giroir.''
Now, on page 75 is my favorite line, it says leading up to
this, ``During his tenure at the Commerce Department,'' while
he was overseeing in the area of the technology transfer, that
you all have been raising concerns about, it says he ``used a
visitor's office across the street at the Washington, DC branch
of Stephens, Inc.,'' an Arkansas based brokerage firm with,
``significant business ties to the Lippo Group.'' Stephens
employees indicated that these visits were short in duration.
Huang used this office ``two, three times a week most weeks,
making telephone calls and `regularly' receiving faxes and
packages addressed to him,'' and then my favorite line, ``No
one at the Commerce Department, including Huang's secretary,
knew of this additional office.''
Now, this ought to just panic quite frankly most Americans
and those of you in the security business because you're seeing
this banged around between the different departments and the
security arrangements. And here we have a person who
unbeknownst even to his office is working in cahoots with
another group, we don't know whether secrets he was getting in
the briefings that you all were--classified briefings. This
company has been linked with the very companies that you all
were sending warnings up about.
And then, Dr. Leitner, you say, but the Commerce Department
was good compared to the Defense Department, and you scared me
to death. Would you----
Dr. Leitner. I didn't mean the Commerce Department is good.
I mean that the greatest degree of change that has occured in
the export control process has occurred in the Defense
Department. The Defense Department traditionally has been the
conservative anchor of the process who looked at national
security and is indeed charged with making the national
security argument.
It has, and I testified about this repeatedly, it has
failed its mission, it does not--it has not safeguarded
national security to the extent it should. The Commerce
Department is basically blithering along and doing the same
thing it always has done. The fact that they had Mr. Huang
there is something of great concern. I never had any contact
with him, and I don't know what he was doing, what kind of
secret offices he had.
But for the aspect that I saw of the process, the greatest
degree of change came in the realm of the Defense Department,
and it came when a whole bunch of people arrived at the
beginning of the administration who represented the antithesis
of export control. When they came in, they inherited the
process.
They were given power over a program which they didn't
support even during the height of the cold war. So that's where
the real big change came, along with spying, you can talk about
the role of Ron Brown as well being so activist and all the
rumors about him. But that's a separate issue, I think, from
the argument I have been making.
Mr. Souder. I thank you all. And my concern is that history
will show you've been correct, which is good for all of you.
History will show that you've been correct, which is bad for
the country. I yield back the balance of my time.
Mr. Burton. Thank you very much, Representative Souder. I
would just like to add for the record one statement. I will
read it quickly, and then we will move to put the committee in
executive session. On May 21, 1999, Colonel McCallum's counsel,
David Tripp, met with Mary Ann Sullivan, the Department of
Energy General Counsel, who is a political appointee, to
discuss McCallum's options. She said that McCallum had made
things difficult for them by talking to Congress. According to
McCallum's attorney, Sullivan said that if DOE was not able to
find McCallum in violation of rules regarding classified
information, that another way would be found to remove him.
Sullivan has refused to be interviewed by Government Reform
Committee staff.
We will talk to Ms. Sullivan at some point in the future
about this.
I now move that the committee proceed in executive session.
All those in favor of the motion will signify by saying aye.
All those opposed signify by saying no. In the opinion of the
chair, the ayes have it, and the motion is agreed to.
So we will proceed in executive session since we will be
discussing sensitive information with the witness Dr. Henson.
Therefore, I will ask the committee to reconvene in a swept
room, room 2247, and only Members and committee staff should
attend the executive session and only those who have proper
clearance. Thank you very much.
[Whereupon, at 4:15 p.m., the committee proceeded to
further business in executive session.]