U.S. Department of JusticeMr. Robert H. Hast
Federal Bureau of Investigation
Washington, DC 20535-0001
June 27, 2001
Office of Special Investigations
General Accounting Office
Dear Mr. Hast:
I thank you for the opportunity to meet with your investigative staff to discuss with them your pending inquiry into my testimony before Congress on the Wen Ho Lee investigation.
Before I comment specifically on the report itself I must place this entire matter into perspective. I have been an FBI Special Agent for 28 years. During these years I have had the privilege to manage a number of high profile investigations in the Criminal Investigation, Counterterrorism, and Counterintelligence areas. Related to these I have appeared before Congress over the past decade on hundreds of occasions. These have included both formal testimony and numerous briefings. Prior to the Wen Ho Lee matter the validity and accuracy of my testimony and presentations to Congress has never been in question. I take great personal pride in the integrity and accuracy of my appearances before to Congress and I prepare carefully for them. For this reason, these allegations are personally and professionally difficult. With respect to the Wen Ho Lee investigation, I was assigned as the Assistant Director, National Security Division on November 23, 1998. Beginning in February 1999, I was asked to be the principal FBI representative at testimony and briefings on the Wen Ho Lee matter. I did so continuously using a series of briefing books that primarily focused on the investigation (1996-1997) that long preceded my association with the National Security Division. This testimony and briefings did not focus extensively on either the accuracy of the DOE Administrative Inquiry or the conduct of the polygraphs in late 1998 and early 1999. Nonetheless, these are the issues associated with the questions raised about my personal integrity and accuracy of testimony.
As I informed your investigators on June 21, 2001, I respectfully disagree with the conclusion of the report that a portion of my testimony was "misleading." This concern is heightened given the conclusionary nature of the subject line at the very beginning of your report. We discussed in some detail all of the facts and events surrounding my testimony. I agree that this testimony may have not been complete given that there was an aspect (the existence of the FBI documents which questioned the Department of Energy (DOE) administrative inquiry) which I was unaware of and did not testify concerning. In fact, subsequent to my testimony before the Senate Governmental Affairs Committee, and upon identifying that the DOE inquiry may, in fact, have some deficiencies, by letter dated November 10, 1999, I informed Senator Thompson of this. (I am enclosing a copy of this letter for your review and consideration). To the degree that your report suggests that I personally misled Congress, that is simply not accurate. While I would have preferred to have had known all available information at the time of my testimony, the fact remains that I did not, a conclusion supported both by witness statements and documents.
Concerning my testimony, your report stated that you were unable "to conclusively determine" that my testimony was "intentionally" misleading. You also cite that with one exception, the Department of Justice and FBI officials you interviewed "generally" corroborated my statement to your staff. You further cite a disagreement on fact between myself and a Senior Counsel for the Department of Justice Office of the Intelligence Policy and Review (OIPR). It is unclear to me whether that disagreement is the "one exception" noted above. If so, I point out that this disagreement on fact was subsequent to my testimony and had no bearing on the accuracy or completeness of my testimony. More importantly, in my meeting with your investigative staff, I referred to and now provide you a copy of a note prepared by me on September 16, 1999, which transmitted to the Senior Counsel the "draft copies" of the FBI communications concerning the administrative inquiry. This document explains in some detail an explanation as to the different drafts provided to the Department of Justice. It is in conflict with the assertion by the Department of Justice Senior Counsel that I had removed references because there were "errors in the draft and the documents did not exist." This document is a contemporary record of our discussion. I ask that you include it in any reporting on this issue. Recognizing the existence of this document, I question the use of the terms "conclusively" and "generally" in determining your ability to corroborate the validity of my testimony and the corroboration of my statement to you. This becomes critical given the conclusionary nature of your subject line describing the report. Also extensive care must be given to any allegations that surface from the contentious dialogue surrounding the Department of Justice involvement in the Wen Ho Lee matter.
In your report, you cite that I had failed to read the briefing book in its entirety because I had "previously received numerous briefings... and believed I knew the relevant facts." As I explained to your investigators on June 21, 2001, this is incomplete and misleading. The reason I did not review the section of the briefing book on polygraph (where the January 1999 document is located) was because the details of the polygraph were not a critical aspect of the testimony and I did not anticipate any questions in that area. Also, I noted and I request that it be made a matter of record in your report that the same section was included in the briefing books provided to the Director, FBI; Senior Counsel, OIPR at Justice; and the Attorney General. Apparently for the same reasons as my not reviewing this section, no one else took particular interest or conducted a detailed review of that section of the briefing book, likely because it simply was not a significant issue at the time. I believe this is a critical factor in understanding why I did not focus on that section of the briefing book. It was not a case of negligence on my part.
In one section of your report you cite that "this memo bears the written initials ‘NJG' near Mr. Gallagher's name," not noting in the body that they were not written by me. This memo is significant because it was suggested in one briefing as proof that I in fact I knew of the existence of the January 1999 document. This section has a footnote (No. 5) which clarifies who actually authored those initials. On June 21, 2001, I asked that the above reference to my initials accurately indicate the full text of these initials including the slash and other initials indicating who actually approved the document. This would include that you now understand that these were not my initials and that the procedures used were consistent with the FBI policy of initialing for a superior. Also, I asked then and I repeat that you consider placing the details in Footnote 5 into the body of the communication as an affirmative statement that these were not my initials.
On Page 5 of the report, you cite my actions subsequent to my conversation with former Special Agent in Charge (SAC) David Kitchen. As I explained on June 21, 2001, upon being informed by SAC Kitchen in late June or early July, of the existence of the January 22, 1999, Electronic Communication (EC) I asked for and received a copy of this communication at FBI Headquarters. It was based upon my review of this communication that I asked SAC Kitchen to provide me a summary of the concerns with the DOE administrative inquiry (I did not ask for a summary of the Wen Ho Lee investigation). Your report correctly footnotes the statements by former SAC Kitchen. However, on June 21, 2001, we discussed and your investigators agreed, that he (Kitchen) went beyond the footnote and made statements to the effect that it was clear to him that I was unaware of the January 22, 1999, document that he was talking about. I ask that this statement be included in the footnote. Also I repeat my concern with your use of the term "conclusively" in determining if I "intentionally misled" Congress. These two issues (the initials on the memo cited above which you determined were not mine and the full statement of the former SAC about my apparent unfamiliarity with the January 1999 communication) argue for a more positive and direct statement as to my motivation.
I appreciate the opportunity to discuss this report and your consideration of my above concerns and recommend changes. During my testimony on the Wen Ho Lee matter and at no time during my 28-year career in the FBI have I ever misled or intentionally misinformed a member of Congress.
Neil J. Gallagher
National Security Division
September 16, 1999
RE: FBI-DOE NATIONAL LABORATORY ASSESSMENTAt the instruction of the Attorney General (AG) and pursuant to your request, I am providing the initial "draft" working copies of the FBI communication provided to the AG regarding the administrative inquiry (AI).
For clarification, in July, 1999, I was provided with the first "draft" copy of the document dated July 9, 1999 (copy attached). The purpose of this "draft," as expressed to me by SAC Albuquerque (AQ), was to further a discussion between he and I and to further a review of the AI. Upon my review, I recommended and instructed that AQ be given direct access to the SENSITIVE [word apparently deleted] document to enhance their analyses and suggested to SAC AQ that AQ interview the FBI agent who actually participated in the AI.
In late August, 1999, I was provided a second "draft" which contained the results of the above review and interview. In discussing this "draft" with SAC AQ, we both concluded that a more focused report would be of more value. We discussed and agreed restructuring this communication to focus on a technical review and distribution of information (as contained in the document provided to the AG). The remaining information that was in the second "draft" and not included in the final version were analytical and speculative without any substantiation. While in the end they may prove to be accurate, the SAC and I agreed that the best approach was to focus on the technical review and distribution. We also agreed that these other areas could be pursued and further analyzed once we actually engaged in a complete review of the AI, as proposed to the AG by the Director in our meeting on September 14, 1999. While this "draft" contained a recommendation that consideration be given to open certain preliminary inquiries (PI) this also was deleted. This was based on two facts: 1) this was a limited analysis which would be expanded upon by a more thorough review of the AI; 2) I was aware that at least one name (Slezak) was already the subject of a pending PI.
This final document (provided to the AG) was first shared with the U.S. Attorneys Office (USAO) to ensure that it did not contain Brady material, which might complicate the prosecution. With the USAO's concurrence it was finalized and submitted to FBIHQ through official channels. Once this document was approved by SAC AQ, it was not altered or changed in any manner.
Neil J. Gallagher
U.S. Department of Justice
Federal Bureau of Investigation
Washington, DC 20535-0001
November 10, 1999
Honorable Fred Thompson
Senate Governmental Affairs Committee
United States Senate
Dear Mr. Chairman:
In my testimony before your Committee on June 9, 1999, I provided, on several occasions, my assessment of the Department of Energy (DOE) Administrative Inquiry (AI) that, in part, formed the bases upon which the FBI predicated its investigation of Wen Ho Lee. I understand that I stated at different times that:
1) I "had full credibility in the report";At the time of my testimony, these statements were based on my personal review and understanding of the facts and the FBI evaluation of the AI. I believed then that these statements were accurate given that understanding.
2) I had "found nothing in DOE's AI, nor the conclusions drawn from it," to be erroneous; and
3) I stated there is a "compelling case made in the AI" to warrant focusing on Los Alamos.
I have, subsequent to that testimony, asked for and become aware of additional facts that I want to bring to your attention, in order to be certain that the record before your Committee is complete and accurate.
1) In November, 1998, and December, 1998, and again in January 1999, there were some written analyses by FBI Albuquerque (FBI AQ) which question the accuracy of certain representations and conclusions in the AI. Although these documents were sent to FBI Headquarters (FBIHQ), I was unaware of their existence before I testified in June.
Further, I have recently learned that the January, 1999, document was included in a briefing book provided to me, other Bureau Executives and Senior Department of Justice officials in May, 1999. It was included in a section about polygraph issues because that was the primary focus of the document. It transmitted the results of the DOE polygraph administered to Wen Ho Lee. I did not review that section of the briefing book to include the January, 1999, document at that time, inasmuch as I was familiar with the polygraph issue and I knew Wen Ho Lee had failed an FBI polygraph shortly after this document would have arrived at FBI Headquarters.
2) In July, 1999 I engaged in a dialogue with SAC AQ regarding this AI. We agreed that a draft document would be provided to me regarding FBI AQ's analysis of this AI. Upon receipt of this draft on or about July 9, 1999, and a subsequent conversation with the SAC, I then learned there was a document submitted to FBIHQ in January, 1999. I have since become aware of the two (2) previous documents (November, 1998, and December, 1998) which contain statements questioning the scope of the AI. I understand all of these documents have been provided to your Committee.
As a result of my dialogue with SAC AQ, we agreed that AQ would conduct a number of interviews in an attempt to further understand and expand upon the technical portions of the AI. On August 20, 1999, FBIHQ located and interviewed one of the scientists who participated in the technical portion of the AI. This scientist stated that he expressed a dissenting opinion with respect to the technical aspects of the AI. His statement is in direct conflict with the AI submitted to the FBI because the AI does not reflect any dissension by the "DOE Nuclear Weapons Experts."
Based upon a verbal briefing by FBI AQ of this August 20, 1999, interview, I requested that AQ submit to me a document establishing, for the record, FBI AQ's concerns with this AI. Upon receipt of this document, I shared it with the Director and it has since been shared with the Attorney General and the Secretary of Energy. Based upon this document and other factors, a review has been initiated by the FBI to re-evaluate the scope of the AI. I understand that you or your staff have received a briefing on the scope and direction of this new initiative and that it should not impact on any subsequent criminal investigation of Wen Ho Lee. The focus of this new initiative is to determine the full universe of both compromised restricted nuclear weapons information and who had access to that information in addition to anyone identified in the original AI.
On June 9, 1999, when I testified before you, I expressed opinions and provided complete and accurate facts as I understood them. The information I provided to your was in complete candor. Given the above information, if asked to describe the AI today, I would have a different response. While the FBI review is not complete, it appears that the technical and dissemination aspects of the AI, at a minimum, deserve to be questioned and that is what the FBI is now doing. As soon as we resolve this issue, we will provide you with those details.
I would be pleased to discuss this with you or your staff in any format you choose. By this letter, I am only intending to amplify and clarify my prior testimony relating to the AI. I am not intending to imply anything about the underlying case involving Wen Ho Lee, the FISA issue or any other issues that have been explored before your Committee. As you know, those issues depend on varying degrees of information that exists independent of the AI, e.g., information developed pre-1996 or as a result of the criminal aspects of the current investigation.
Again, thank you for this opportunity. I am available at your convenience.
Neil J. Gallagher
National Security Division