Patriot acts

“Someone tell me why / I do the things that I don’t want to do / when you’re around me / I’m somebody else.”
—From “Teenage FBI” by Robert Pollard/Guided By Voices

Lok Lau remembers that his bags were already packed hours before dawn, when a senior FBI agent showed up at his door bearing the worst possible news.

It was a cold Chicago morning in November 1987, and Lau, who had been up most of the night preparing for his first undercover mission for the FBI abroad, ushered the agent into his living room. According to Lau, they proceeded to go through all of his baggage, ostensibly to make sure he wasn’t bringing along anything that could blow his cover overseas.

“Right after the search of my bags,” recalls Lau, “I was told, ‘We have something we feel we have to tell you, and it’s your decision.’”

The news, he says, was that the bureau believed Lau had been outed as an agent to the violent gangs he had infiltrated. The choice was whether to proceed with the undercover mission.

“I was really shocked,” he recalls. But Lau had made a commitment to the investigation. “I’d sacrificed enough to reach this point, and I wasn’t about to throw it all away.”

Complicating the situation, says Lau, was an upper-level political conflict in the FBI over whether he should be sent overseas in the first place. “You always have this tug of war,” he says of the conflict between “gung ho” street agents and more conservative bureaucrats. “And in my case, my former SAC [Special Agent in Charge], Jim McKenzie, was literally threatening the deputy director at headquarters, saying that if you do not approve this, he’ll make sure he has an audience with the director himself, [William] Sessions. And as I was later told, when the generals are at war, the foot soldiers suffer, because whether you win or lose, coming back from a battle, you still lose. You create very powerful enemies.”

Lau stuck to the original plan and put himself in jeopardy rather than cancel and confirm suspicions that he was more than the private businessman he pretended to be.

Although the classified nature of his undercover work prevents Lau from providing details, one could surmise from court records that the trip was to China and that a second excursion followed a few months after the Tiananmen Square uprising. It is also likely that at least part of his work was with gangs that were involved in the smuggling of illegal immigrants—known in the industry as “human snakes”—into the United States.

“Life is very cheap outside of America,” says Lau, “and it’s definitely a very thriving trade. You’re talking about an average illegal alien paying about $40,000 to $50,000 to come to America from all over Asia and the Third World, and you have a boatload of three or four hundred people crammed into it. It amounts to millions of dollars of pure profit. And a lot of times, that amount is even higher because of human servitude, when they cannot pay.” Lau says such individuals end up in sweatshops or worse: “Yes, or red-light district, white slavery, whatever—you name it.”

In addition to immediate personal risks from working undercover, the trips to foreign lands would, more than a decade later, entangle Lau in the ongoing battle between the Bill of Rights and the Patriot Act. In fact, just last month, Attorney General John Ashcroft’s Justice Department made an unprecedented attempt not only to seal documents in Lau’s court case—he’s sued for wrongful dismissal from the FBI—but also to gain access to the hard drives of activists, journalists and anyone else suspected of having copies of the documents.

In testimony, subsequently blacked out by the Justice Department, Lau claimed that “personnel armed with machine guns were a constant reminder to me of my fate if something went wrong. … I anticipated death on several occasions, but I somehow survived it all.”

The undercover mission earned Lau a commendation from then-FBI Director William Sessions—Lau brags that Sessions even posed with a cap from China’s People’s Liberation Army for the occasion—but the job also exacted a personal toll.

“Well, [the overseas trip] was the high point of the undercover assignment, but it was the low point of my own personal life,” he muses, gazing out the window of a friend’s Sacramento-area home. “It’s like it was good for the project, but it was bad for me personally.”

The worst point in the journey, he says, was when people he met there made it clear to him that they knew the whereabouts of Lau’s family members, both near and distant, right down to their individual addresses.

Lau figures it was their way of saying, “We know who you are.” Lau’s family, meanwhile, had no idea what he was really up to. And, as time went on, Lau would begin to wonder himself.

Born in Singapore in 1957, Lau was 19 when he immigrated to the United States, moved in with a married sister in Michigan and began work as a sheriff’s deputy. According to his testimony, Lau was recruited by the FBI and CIA—both of which needed agents fluent in Mandarin and Cantonese, as Lau was. He chose the FBI because the recruiter painted it as both a better and “more glamorous” way to serve his country.

Lau says he went straight from the FBI academy to undercover work, an unusual trajectory that gave him little opportunity to learn and identify with bureau culture. Instead, he was plunged immediately into an undercover assignment that lasted from 1986 to 1991 and was punctuated by the two “harrowing” trips overseas.

According to Lau, the stress and anxiety of that assignment left him psychologically scarred. But when he needed help, Lau says, the FBI ignored him. Ultimately, Lau would bring an employment-discrimination lawsuit against the government. In the process, he would shed some light on areas that the Justice Department, more than a decade after his trips, wants to remain in the dark.

“The FBI took a young, virile, intelligent man who was working for law enforcement and told him he was a special agent of the FBI and all he had to do was serve his country,” wrote Julie Marquez, chair of the League of United Latin American Citizens (LULAC), in an amicus brief for Lau’s case. Throughout the past few years, LULAC has battled what it believes is a pattern of discrimination inside national-security and law-enforcement agencies like the FBI and CIA.

“From a reading of the record,” testified Marquez, “it is not difficult to discern that Lau was involved in espionage activities, kidnappings, trading in human slavery, illegal immigration, murder, torture, kidnapping, extortion, hostage taking and any number of other criminal incidents that involved crimes against humanity, then and now, in his undercover work. Lau ‘penetrated’ the Chinese Triads, the Tongs and other Chinese Organized Crime Organizations that trade in all of these things as a way of life.”

But immediately after Marquez filed this brief in early October, she says, the government accused her of recklessly exposing classified information. The government later would go to great lengths to remove portions of the LULAC brief and some of Lau’s own testimony from the public record, complaining that both contained “intelligence methods and activities that are used in the FBI’s present intelligence, counter-intelligence and counter-terrorism investigations.”

Looking at the sanitized and unsanitized versions of the court documents, it is not hard to see what information the government considered sensitive. In both Lau’s declaration and the amicus brief filed by LULAC, the government took pains to remove any reference to Lau being overseas or abroad.

Marquez says she believes the government may be trying to cover up wrongdoing. “The FBI was not supposed to be involved in espionage overseas,” she explains.

Though the FBI and CIA historically have been confined to domestic and overseas operations, respectively, there are plenty of reasons an FBI agent might be working abroad and even be working undercover.

“He might have been undercover, but he would have been working closely with the foreign government,” says Elizabeth Rindskopf Parker, dean at the McGeorge School of Law and former general counsel for the CIA. If that was the case, the government might have reason to keep Lau’s overseas mission quiet, even after all these years. “There might be something about what he was doing that is still ongoing,” Rindskopf Parker says.

But the court record suggests that he was also involved in overseas espionage. On one occasion in the declaration, he mentioned having FBI and CIA “handlers.” In another passage, describing a later mission, Lau said he was sent to what he called a “hostile country … in total chaos.” Lau wrote in his declaration of the constant presence of “personnel armed with machine guns.” All of this information was removed from the court record by the Justice Department.

If Lau was involved in espionage, as the court record may suggest, First Amendment advocates believe the American public has a right to know. “One thing that provokes curiosity is the notion of the FBI conducting covert intelligence in a foreign country,” says Terry Francke, director of the California First Amendment Coalition (CFAC), who condemned the sealing of the court documents in Lau’s case and moved immediately to post them on the coalition’s Web site. “The narrative is about spying—and dangerous spying at that. I was not aware that the FBI had the authority to do that,” Francke says.

Under an executive order signed by Ronald Reagan in 1980, there are some limited instances in which the FBI is allowed, in coordination with the CIA, to engage in foreign espionage. But so far, the government has offered no assurances that Lau’s mission, whatever it was, actually was sanctioned by U.S. law.

Former FBI agent John Vasquez testified that, when he would meet with Lau, the young agent “would ask to see and hold my badge. This was a flag to me that he was saying, ‘I do not know who I am.’”

When asked about this, Lau explains that after graduation, he’d only had his credentials for 10 minutes before having to relinquish them to a field-office vault in order to keep his undercover identity secure. Holding his colleague’s badge, he says, gave him “a sense of security and identity, because at some point, I became really confused as to who I am or what I am, in the sense that I’m constantly being somebody that I’m not for the subjects, even to my girlfriend. I can’t really confide in anybody what I really do for a living, not even my own mother.”

Vasquez testified that he’d felt Lau was “screaming for help” and inevitably would “do something to bring negative attention upon himself.” Sure enough, on Christmas Eve of 1990, Lau “acted out” in a strangely incongruous shoplifting incident that would come back to haunt him.

“Paint brush and rollers. It wasn’t like a Rolex watch and a diamond bracelet. Oh, and a paint tray. That’s really concealable!” says Lau, laughing and shaking his head at what he now characterizes as “a cry for help.”

“I was just lashing out, just angry. I had waited around [the store], nobody came, you know, it was Christmas Eve, and everybody was busy. And I knew there were cameras there because my nephew had worked there, and they always talked about who was picked up because of the security camera. So, it wasn’t like I didn’t know.”

Lau ended up being suspended from the FBI for two weeks. His supervisor wrote that the punishment would have been more severe but cited the stress of Lau’s undercover work as a mitigating factor.

His undercover assignment coming to end, Lau says, it was typical for an undercover agent to write his or her own ticket when it came to transferring. In Lau’s case, he wanted to be back near his family and jumped at the opportunity to relocate to the Seattle office. Instead, he was transferred to Sacramento. And that’s where things really began to unravel.

“The American dream,” says Lau with a smile, as he parks his car in a front of a house that’s identical to every other one in its neighborhood and countless other developments across the country. An inconspicuous Buddha in the entranceway is the sole sign of individuality.

(Lau would not be interviewed in his own house and even refused to give out his friend’s address over the phone. Instead, he asked to meet in a parking lot where the reporter’s car would be left behind and Lau could drive the reporter to the interview site.)

With his hangdog expression and dry sense of humor, it’s sometimes difficult to tell where Lau’s wit ends and paranoia may begin. When it’s mentioned that the passenger window isn’t all the way up, he says not to worry, mischievously remarking that “it’s not big enough for a bomb.” But at other times, he seems deadly serious, as when he insists that “a lot of people are going to get shot, literally,” as a result of his full story coming out. “Those people who were double or triple agents, who were known to hang out with me, will be in serious trouble.”

Though he says he never fell victim to Stockholm syndrome (where an agent or captive begins to identify with an adversary), Lau contends his undercover work was psychologically draining. “If I see some atrocities or crimes, sometimes I have to pretend that I even enjoy it, but deep down in me, it’s all an act. I had no choice. In order to be successful, I had to go with the flow or run with the pack, so to speak.

“I think psychologically, when I cannot put these people in jail because they were not the main objective of the undercover, I felt very helpless, you know, as an investigator and a human being.”

Lau says even the worst criminals he dealt with didn’t appear much different from anyone else, apart from being better dressed. “When I first sit and have dinner with these people, they do not advertise and say, ‘I am one of the most wanted guys in America’ or ‘I got boys who can break your bones and nose in a New York second.’ Just like, you know, the first time you run into me, you really don’t know who I am. For all you know, I could be America’s most wanted, or I could be a saint. You see what I’m saying?

“What made matters worse was that I wasn’t really trusted,” Lau says of his fellow FBI agents. During his five years undercover, Lau figures, he was polygraphed at least a dozen times. “And it’s really sad because I’m treated like a second-class or third-class citizen, and yet guys like Robert Hanson [a former FBI agent accused of spying], he was never polygraphed. The majority of spies that are caught, I’m sorry to say, are Caucasian, my friend.”

Lau’s years in Sacramento have been difficult. In addition to transitioning from the field to the office, he had problems with depression and sleep apnea, which eventually resulted in the bureau taking away his car and gun. “They set me up to fail,” claims Lau. “They know I have a history of allergies, and guess what? Sacramento is the allergy capital of the world.”

The 1996 holiday season would end up being another turning point for Lau. At approximately 10 p.m. on December 5, 1996, Special Agent Lau used a ceremonial sword to confront an intruder outside the FBI’s Sacramento headquarters.

“[The intruder] had tremendous respect when he saw the sword in my hand,” says Lau, who’d been given the “weapon” by a co-worker after the FBI took away Lau’s gun. One of Lau’s supervisors, Jim Wedick, also showed respect, commending the action in writing. “But upper management,” says Lau, “viewed it as aberrant behavior.”

Lau likens his use of the sword to a Caucasian grabbing a baseball bat. “If you do something out of context to the American culture,” he says, “that is aberrant behavior.”

Three days later, Lau was involved in his second shoplifting incident. Charges were dropped, but when the FBI found out about the incident, the bureau used it to fire him.

In court documents, the Justice Department argued that Lau shoplifted not once but twice and deserved to be fired. The department also dismissed a declaration by Vasquez regarding Lau’s post-traumatic stress and psychological damage as “nothing more than an attempt to put the FBI on trial for every wrong [Lau] believes he suffered during his 15-year employment with the FBI.”

The federal government also denies Lau’s allegations of race and national-origin discrimination. “Lau’s evidence,” the attorney argued, “can be summed up this way: ‘I am Asian and was born in Singapore; my supervisors were not. Any problem I had in the workplace was caused by their racism.’” In addition to his wrongful-termination suit, Lau also has filed numerous Equal Employment Opportunity complaints, which are still being investigated.

But the Feds didn’t pay much attention to Lau until a story about him appeared in the October 10, 2003, edition of the San Antonio Business Journal. (Lau’s main legal adviser, who successfully sued the FBI on behalf of Hispanic agents, also is based in Texas.)

The Justice Department responded immediately by seeking a court order to suppress documents used for the story. Specifically, the department objected to the amicus brief filed by Marquez of LULAC and to the 23-page declaration by Lau that chronicles some of his experience in the FBI. Lau’s declaration mentions a dangerous undercover assignment several times but never says where the mission took place or who his targets were.

Ironically, these documents had been in the public record for nearly three weeks before the U.S. attorneys moved to have them sealed. Within days of the federal government’s motion, the documents were posted to CFAC’s Web site, where they remain to this day.

Federal court Judge Garland Burrell did order that Lau’s declaration and the amicus brief in the court record be sealed, and the documents were removed. Later, new versions were substituted, with sensitive information redacted in black marker. At the same time, agents were sent to the offices of Lau’s attorneys in Sacramento and San Antonio, to confiscate copies of the documents.

But the government wanted to go further in imposing secrecy. The Justice Department then asked the judge for permission to search for copies of the document that were already out, stored on individual computers, and to destroy the information.

The brief concluded with this remarkable request: “Finally, if Lau’s declaration and amicus brief are included on any computer hard drives that are not authorized to contain classified information, defendant John Ashcroft respectfully requests in this court order that an FBI computer specialist be permitted to remove the specific files containing information from the unauthorized computer.”

The request was so broad that it might have included the computers of Lau’s attorneys, San Antonio reporter Bill Conroy, LULAC or CFAC.

This time, Burrell rebuffed the feds, saying the government had no authority to go after copies of the documents that weren’t already in possession of the court. (The ruling, however, was not prejudicial, and the Justice Department is considering re-filing the request.)

But the U.S. attorneys may have attempted to go around the judge’s order.

Marquez says she was contacted by Doug Hendricks, an assistant U.S. attorney in Sacramento, who asked her to turn over her copies of the same documents. At the time, Marquez says, “he told me that he didn’t want any more media coverage. He wanted to shut down the media.” But Marquez refused to hand over anything. “I told them to come back when they had a court order.”

Her organization has asked that the government be found in contempt of court for attempting to circumvent a court order and other “acts of outrageous and unconscionable misconduct.” In court documents, Marquez said that she was contacted by assistant U.S. attorney Kristin Door immediately after LULAC had filed its amicus brief in the case. Marquez said that Door informed her that a criminal background check on Marquez had been done and that Door also had badmouthed Lau and his attorneys over the phone.

“It was all supposed to intimidate me. Of course, I am intimidated. These people can throw you in prison,” Marquez says. “But if you are going to have any integrity, you have to do the right thing.”

According to the San Antonio Business Journal, Lau’s attorney in Texas, Antonio Silva, said Hendricks also asked to inspect Silva’s computers and erase any sensitive information. Silva declined. George Allen, Lau’s Sacramento attorney, also says Hendricks asked him about computer files, but Allen told Hendricks he didn’t have any sensitive information on his computer.

Allen calls the move a “perversion of due process” and an attempt to deprive Lau of effective legal representation. “Since I don’t have the security clearance, I’m not even supposed to look at that information,” Allen notes. “I could have the smoking gun in my briefcase, and I wouldn’t be able to use it to help my client.”

Marquez said the attempt by U.S. attorneys to inspect computers after the judge said they had no authority to do so, and the effort to retrieve documents from LULAC after the judge said the government could not confiscate documents that were not already in possession of the court, represent “outrageous abuse of power” for which the government should be fined.

Hendricks refused to comment on whether he approached Marquez for her copies of the classified information. However, he denied saying anything to Marquez about wanting to stop media coverage of the case.

Door would not comment, other than to say the case was being “blown way out of proportion” and to refer SN&R to the U.S. attorney spokesperson, Patty Pontello, who also declined to answer questions regarding the sealing of documents or the extraordinary attempt to access individuals’ computer hard drives.

In the LULAC request for sanctions against the government, Marquez noted that Lau’s psychiatrist, Dr. Bruce Ebert, had his Roseville office burglarized in the middle of October, around the same time as the Justice Department’s attempt to suppress the information coming out of Lau’s case. There were break-ins at several offices in Ebert’s office complex that night, and there is no real evidence that the burglary is related to Lau’s case.

Marquez, however, thinks the break-in is suspicious. “One is led to the inescapable similarity to the Pentagon Papers case of Dr. Daniel Ellsberg and the ‘burglary’ of [Ellsberg’s] psychiatrist. Coincidence?” she says.

On November 10, Burrell denied the motion for sanctions against the Justice Department and ordered it stricken from the court record—saying that LULAC was not entitled to file the motion because it was not directly involved in the case. In the same order, Burrell ordered LULAC’s amicus brief stricken as well, saying that he never gave permission for it to be filed and that it was “largely devoid of legal analysis” and therefore not useful to the court.

Francke doubts the Justice Department would have gotten away with sealing the court records or even would have attempted to a few years ago.

“One could imagine that the FBI and the Justice Department feel that they are on a roll right now,” Francke says. In the new, fearful America post-9/11, “judges have been very deferential to claims of national security.”

And though he says the Lau case is unusual in many ways, the government’s sanitizing of public documents in this case “seems entirely consistent with this [Bush] administration’s zest for keeping the lid on things.”

If, however, the FBI’s intention was to shut down media coverage of the Lau case, it couldn’t have come up with a more backward way of going about it.

“The best way for the government to get a lot of publicity for something is to stamp it ‘top secret,’” Francke says with a laugh. “If they wouldn’t have made such a fuss about it, it likely wouldn’t have gotten the small amount of press that it has.”

On October 30, in the case of Lok Thye Lau v. John Ashcroft, Burrell ruled in favor of the defendant—saying that it was a lawful firing and that Lau had violated the “bright line” policy, a statement of ethical standards that the bureau instituted in 1994. In his decision, Burrell cited the FBI director’s statement on this policy: “In short, I believe in the simple truth that lying, cheating or stealing is wholly inconsistent with everything the FBI stands for and cannot be tolerated.” Lau is now appealing the decision to the 9th Circuit Court of Appeals.

In Wayne Wang’s 1982 debut film, Chan Is Missing, two taxi drivers go looking for their missing friend Chan in what becomes a metaphorical search for Asian-American identity. Ultimately, Chan can be found only in the fragmented reflections of the disparate people who knew him.

The same may well be the case for Lau. CFAC sees Lau as a First Amendment lightning rod in the age of Ashcroft. To LULAC’s Marquez, Lau was a “young, virile, intelligent man” who got used up and spat out by the agency. The FBI characterizes him as a liar and petty thief, though the extremity of their response suggests the bureau also considers him a security threat.

So, who is Lau? Nearly three years after his dismissal, he’s living on federal disability retirement, based on diagnoses of post-traumatic-stress disorder, depression and sleep apnea. Despite repeated requests to the bureau, he has not been given access to a psychiatrist who has sufficient security clearance to hear the details of his story.

He used to hope the FBI would find a role for him—one that would make use of his knowledge of Chinese dialects or allow him to teach what he learned on the streets—but these days, he’s understandably pessimistic. He figures he’ll stay in the Sacramento area, if only because it’s near the courthouses.

Ultimately, Lau remains something of a cipher, perhaps even to himself. Yet, his story raises compelling questions about free speech, individuality, cultural identity, ethics and power—as well as what we as a society are willing to sacrifice for security purposes or what we need to preserve.

Having grown up in Singapore, which he describes as a police state, Lau says he fears the direction in which America now appears to be moving. He cites the politically motivated outing of CIA agent Valerie Plame and the invasions of Afghanistan and Iraq as examples.

“Apparently, we are reliving history over and over again,” he says. “The real sad part is that you’re dealing with human beings with feelings and their life and flesh and blood. It’s not a concept. But I guess, at the upper-management level, to them, it’s a game. Everything is just on paper. We are a number. We are a digit. We are just another name.”