Has the FBI plugged a leak within the US intelligence committee that resulted in a dozen or more of its assets in China either dead or imprisoned? For now, the Department of Justice will charge Jerry Chun Shing Lee only with an 18 USC 793 violation for unlawful retention of classified material when he appears in a Virginia court today. However, suspicions of a mole inside the CIA have people guessing that the feds may have finally found their double agent:

A former Central Intelligence Agency officer was arrested at a New York airport Monday night and accused of keeping notebooks filled with detailed information about undercover agents and assets after he left his job.

Jerry Chun Shing Lee, also known as “Zhen Cheng Li,” 53, is charged with unlawful retention of national defense information. …

Lee has been a suspect in a long-running probe to determine if a mole inside the U.S. intelligence community had led to the deaths of a number of CIA assets in China, according to people with knowledge of the probe, which was first reported by the New York Times. He has not been charged with any crimes in connection with those deaths.

The NYT report came out in May of last year, as China’s media celebrated the news that their intelligence agency had brutally stamped out the CIA’s informant ring. The round-up took place years ago, however, between 2010 and 2012. That was before China began successfully hacking into US government computer systems such as at the Office of Personnel Management (OPM), so the assumption resulting from the NYT story was that a mole had worked its way into American intelligence — or possibly more than one.

However, this is where the story gets mighty curious. According to the Washington Post, the CIA and FBI agreed on the existence of a mole at the time the assets were lost — and they settled on Lee almost immediately. In 2012, the FBI managed to search his hotel rooms as he traveled from Hong Kong to Virginia through Honolulu. That, and not now, was when they found the notebooks with classified information such as the location of the CIA’s covert facilities and the names of undercover CIA employees and other assets.

Some months passed between that discovery and their next direct action regarding Lee, presumably a period that allowed them to watch their suspect to see if he committed any explicit acts of espionage. Investigators finally interrogated Lee five times in May and June of 2013, but still allowed him to continue contact with other government employees. Despite the fact that Lee never told them about the notebooks, the FBI and CIA apparently allowed him to remain at large — and he skipped the country in June 2013 to go back to Hong Kong. They’ve been wanting to get him back into the US ever since, but he apparently just came back on his own thinking the coast was clear.

Why didn’t the FBI arrest Lee after the discovery of the notebooks, and especially after Lee never disclosed their existence during interrogations? They had a clear violation of 18 USC 793 on the table at that time, a felony which carries a potential 10-year sentence. That should have been enough to detain Lee, whose knowledge of American intel operations would still have been potent and dangerous at that time. Perhaps they were hoping to catch him in a more explicit act of espionage in order to get a death-penalty conviction, but if that was the case, investigators wouldn’t have alerted him with an interrogation first. They don’t have anything more on Lee now than they did at the time, but at least this time they’re not missing out on the opportunity to keep him off the streets.

None of this actually settles the question as to whether Lee was the mole, though. The FBI and CIA suspected Lee of being the mole, and they probably still believe it’s the most likely explanation. Proving that in court will be a difficult prospect, however, and the initial charge of unlawful retention seems to hint that the DoJ doesn’t think they have a winning case on the bigger charge. Proving the 18 USC 793 charge should be a piece of cake though, which prompts the question as to why the DoJ didn’t detain Lee in 2013 when they had the same case.

It’s possible that Lee wasn’t the mole, although that would be a big coincidence, or perhaps a little more possible that Lee wasn’t the only mole. We may never know for sure — but putting Lee behind bars gives us a start on making those determinations. Too bad that his imprisonment came more than four years too late.

Update: Why might the DoJ have been reluctant to push hard on Lee at the time? Jeryl Bier dug this up as a possible explanation. Note the date — June 8, 2013:

Chinese President Xi Jinping and US President Barack Obama have begun a two-day summit in California.

The two leaders spoke of overcoming differences and forging a new relationship between their countries.

President Obama spoke of “areas of tension” and mentioned their rivalry in the Pacific, North Korea’s nuclear ambitions, and cyber espionage.

The meeting is the first between the two since Mr Xi became president in March.

Maybe they figured that they could pick Lee up later and lost the gamble?