An edited version of this blog was posted on Asia Times.
Last May, New York Times
identified Sherry Chen as the person accused of spying for China and then
wasn’t, as the federal prosecutor dropped the charges just one week before her
case was to come to trial. Sherry’s friends and supporters thought that being
free of criminal charges meant that she could go back to her job as a
hydrologist for the National Weather Service (NWS).
Lo and behold, on September 4,
2015, Sherry received a letter from Laura Furgione, Deputy Director of NWS,
informing her that she was being removed as an employee of NWS. In the document
formally known as “Notice of Proposed Disciplinary Action (hereafter PDA),
Furgione proposed removing her for “(1) Conduct demonstrating
untrustworthiness; (2) Misrepresentation; (3) Misuse of Federal Government
Database; and (4) Lack of Candor.” The document ran 20 pages in length.
Peter Zeidenberg, attorney
with Arent Fox LLP based in Washington, was the defense counsel for Sherry; he
submitted a memorandum dated October 2, 2015 addressed to Louis Uccellini,
Director of NWS in response to the PDA. The memo ran 31 pages and provided a
comprehensive rebuttal to all the points raised in the PDA.
Then in a half page memo with
a date stamp of December 9, 2015, Director Uccellini wrote to Vice Admiral
Michael Devany, stating that he cannot serve as an impartial “deciding
official” on the PDA and asked to be relieved from this role. Devany is Deputy
Under Secretary for Operations of National Oceanic and Atmospheric
Administration (NOAA) and is Uccellini’s boss.
Uccellini’s short memo said
he was provided with Furgione’s PDA and back-up material in the capacity of
being the “deciding official.” He also heard an oral reply from Sherry and her
attorney Zeidenberg along with the written material on October 9, 2015.
Then Uccellini made a curious
statement in his memo, “Specifically, in 2014,
I received a series of classified briefings from DOC’s Office of Security
regarding this employee and matters related to this Notice of Proposed Removal.
While I have tried to compartmentalize the additional information I learned
during these briefings, I am unable to focus solely on the information and the
charges in the Notice of Proposed Removal, the materials relied upon, and the
employee’s response.”
Next, Furgione sent Sherry a
second PDA, dated December 18, 2015 rescinding the first because Uccellini would
not serve as an impartial deciding official. Other than stating that Vice
Admiral Devany was now the deciding official, the second PDA was word for word
identical to the first version. In response, Zeidenberg submitted the same
rebuttal since the second version of the PDA added nothing and changed nothing
from the original.
Devany’s decision on the PDA
in the form of a letter dated March 10, 2016 addressed to Xiafen Chen was to
remove her (Sherry) from Federal service. The reasons given in support of his
decision basically followed the accusations as outlined in the PDA virtually
uninfluenced by any of the arguments submitted by Zeidenberg. Devany’s letter
did contain one curious statement: “much
of your reply went to the now-dismissed criminal charges against you, which
have no bearing on this matter.”
Devany’s statement is hard to
fathom. Either Zeidenberg missed reading the PDA and failed to respond
accurately, or the PDA repeated some of the “now-dismissed criminal charges” as
part of its case against Sherry, or Devany had made up his mind to dismiss
Sherry and his general note was a way to sweep away the carefully crafted
rebuttals by Sherry’s counsel and avoid having to deal in any degree of
specificity.
Dr. Uccellini has a PhD in
Meteorology from University of Wisconsin and is a self-confessed “weather geek.”
He has authored more than 60 peer-reviewed articles, books and chapters on
weather related topics. Among many awards and recognition, he was at one time
the president of the American Meteorology Society.
When Uccellini assumed the
leadership of NWS in 2013, outside observers praised the appointment as a
welcome change from the usual practice of filling the post with retired
military officers. He took over an organization riven with scandal, was accused
of misappropriation of funds and marked by the abrupt retirement of his
predecessor.
Ironically, he co-authored an
acclaimed book titled “Northeast Snowstorms.” This January, the NWS forecasted
a killer storm of historic proportions for the New York City area, which
prompted the mayor Bill de Blasio to order the closing of roads and subways
along with schools. One minor detail was amiss, the storm never happened. To
his credit, Uccellini took responsibility for the “historic screw up” and admitted that the weather service needs to
improve the way weather forecast is communicated to the public.
The National Weather Service
is part of NOAA and its mission is to “provide
weather, water and climate data, forecasts and warnings for the protection of
life and property and enhancement of the national economy.” In other words,
NWS keeps its eye on Mother Nature. The meteorologists in this organization
watch the sky while the hydrologists monitor the rivers.
Sherry Chen was employed as a
Hydrologist in the Ohio River Forecast Center. This office monitors the Ohio River
basin including its many rivers and tributaries that flow into the 900-mile
long river. This river system affects approximately 25 million lives. A major
part of Sherry’s duty is to construct and continually improve a computer model
of the river to facilitate making accurate forecasts of the water flow on the
river.
Sherry’s modeling work is
based on a software package provided by the Hydrologic Engineering Center –
River Analysis System (HEC-RAS). The Center belongs to the Army Corp of
Engineers (ACE) and is well known world wide for its technical expertise on all
things related to water, and HEC-RAS is just one of a large family of software
programs the Center has constructed and made available for general use.
In fact the river forecasting
centers belonging to NWS work closely with the ACE. The centers perform the
forecasting while the Corp of Engineers control the dams and levees that can prevent
or at least mitigate the impact of the river overflow. One instance where the collaboration
did not pan out so happily was the Nashville flood of 2010 when the Cumberland
River overflowed its banks, and 31 lives were lost along with approximately $2.3
billion in damages. It was a natural disaster that rivaled Katrina of New
Orleans in severity.
The Cumberland is a tributary
of the Ohio and Tom Adams, the senior hydrologist of the Ohio River Forecasting
Office, led the forecasting effort and Sherry was his lead modeler. Adams and
his group could see that the torrential downpour was leading to the threat of
serious flooding. He tried to warn the ACE office in charge of this region.
Finally on May 2, a Sunday morning, he was able to hold a conference call including
Deborah Lee who was in charge of ACE office. He warned Lee of the impending
threat but he felt that Lee was distracted and did not sensed the urgency of
the situation.
The river crested in the
evening of May 3 and all hell broke loose on May 4. The press severely
criticized the ACE for poor handling of this matter including mismanagement of
the dams in the affected area and should have done more to prevent flooding.
Lee telephoned Adams to scream at him alleging that everyone in his office was
incompetent. Adams explained to me, “Debbie
Lee was really upset and worried about losing her job. She really got me mad. If she had been standing in front of me, I would have
punched her.”
Since that incident, the
working relationship between the forecasting center and Lee’s group in ACE
turned sour. Adams speculated that the success of Sherry’s modeling most likely
became an added source of embarrassment to Lee. Earlier in her career, Lee had
also worked as a hydrologist at the same river forecasting center. Lee was the
person that originated the accusation of Sherry being a spy for China.
Adams having seen all the
discovery material related to the original criminal charges volunteered to me
that emails from Debbie Lee showed clear indications of racial profiling as
alleged by Zeidenberg in his memo in defense of Sherry. “All the charges leveled at Sherry were all bullsh*t,” Adams said.
In Zeidenberg’s memo, one the
sections had a heading that read: “Deborah
Lee’s suspicions of Ms. Chen were based on ignorance and racial profiling.”
The concluding sentence of this section was, “These two concerns—one based on Ms. Chen’s national origin, one based
on a erroneous factual understanding—are what triggered this entire
investigation and a nightmare for Ms. Chen that is still ongoing.”
In his letter of dismissal,
Devany’s response was curt: “That you are
of Chinese descent is irrelevant. That you reached out to her (Deborah Lee)
at the behest of an official in the
Chinese government is not irrelevant.” The official was a vice minister who
asked Sherry how the U.S. finance the repair of old dams. Sherry, not sensing Lee’s
hostility towards her, asked her about where such publicly available
information could be found. Her query gave Lee cause to report her to the DOC
Office of Security.
Sherry learned of the
National Inventory of Dams (NID) from a colleague at her center. According to
Adams, everything in the NID was public information and no disclosure could
possibly represent a threat to national security. However, the fact that Sherry
did borrow a password to download some data from the NID, even though there was
no evidence that she shared the information with anyone served as a major justification
to dismiss her. Adams said that it would have been natural for Sherry to assume
that the NID data would be relevant to her modeling work and only upon
examination of the actual data would she discover that the data was “garbage.” (Ironically, since April 2015,
most of the NID data is freely available to the public without any password.)
Tom Adams worked with Sherry
Chen for more than five years before leaving the Ohio River Forecasting Center
in February 2013--before Sherry Chen was arrested. Having left the service, he
did not feel the constraint of a current employee and spoke to me freely. He
maintained contact with Sherry and was working on a paper with her. In her
letter of dismissal, Devany, who had a prior career in the U.S. Navy, treated
the sharing of public information with Adams as if Sherry was consorting with
an enemy. The weather service has a mandate to communicate and share freely the
results of their findings with the public but apparently that does not include
a former employee.
Adams wanted me to know that
there is life after the river forecasting center. He has been consulting for
the World Bank along with other gigs around the world including Beijing. He is the
author of a basic textbook on flood forecasting to be published next month.
As for Sherry Chen, she has
indicated that she is not willing to quietly go away. She said, “Why do I have to accept the unfair and
unjust treatment my government has given me?” She goes on to say, “I am not just fighting for myself but for
all victims of racial profiling so that it won’t happen again.”
It would seem that someone
powerful is out to get Sherry Chen but that person is not likely to be in NWS. The
leadership of NWS does not seem to be much invested in the process to dismiss
Sherry. Other than drafting the PDA, Deputy Director Furgione has not shown any
further engagement. She did not attend any of the meetings when Sherry and
Zeidenberg presented their arguments against the proposal to dismiss. The
second version of the PDA was an obvious cut and paste of the first version and
would suggest that Furgione didn’t bother to read Zeidenberg’s response to her
PDA. A logical question might be to ask her if she personally wrote the PDA and
if not who did.
Uccellini declined to act as
the deciding official on the PDA originally submitted by his deputy. Why? Did
he find wielding the hatchet on Sherry distasteful? On the other hand, did the
powers that be that insisted on terminating Sherry’s employment far exceeded
his authority to countermand? If so, who is pushing to dismiss Sherry? (I
contacted the offices of Furgione and Uccellini hoping for some answers and
clarifications. Both referred me to the public affairs office of the Department
of Commerce. Someone from the public affairs office promised to get back to me
but has not so far.)
Vice Admiral Devany’s letter
to remove Sherry also struck me as perfunctory and lacking in substance. His
letter basically read like a re-written version of Furgione’s PDA. His reasons
to dismiss read like re-statements and displayed no understanding or attempt to
respond to the rebuttal presented by Zeidenberg. Again, if Devany did not write
the letter, then who did and why?
Other than claiming that
Sherry’s national origin is “irrelevant,” Devany did not address why he does
not consider Deborah Lee guilty of racism. This question needs further
investigation. Why was Lee not reprimanded for her obvious racist remarks? Who
is protecting her and why? Lee has recently returned to NOAA as a director of a
research laboratory. Surely she could not have been promoted as some kind of
reward for her bigotry, could she?
Frank Wu, former Dean of
Hastings Law School and incoming chairman of the Committee of 100, is
personally advising Sherry on arriving at an appropriate response. “Notwithstanding the prosecution having
dropped all charges against Sherry Chen and members of both houses of Congress
have demanded from Justice Department a full investigation on whether racial
bias have been involved,” Wu said, “How
is it possible for NOAA and NWS to thumb their collective noses at that?”
“The highest priority right now,” he said, “Is to generate support from the communities that should be outraged by
the government conduct in this case and others.” Readers are encouraged to
contribute to Sherry Chen’s legal war chest to help her paid her bills and as
she ponders her next move. Please visit http://www.sherrychendefensefund.com/donate.html.
Readers interested in
reviewing the developments leading to the case up to the latest are encourage
to visit the website being maintained by Jeremy Wu at http://bit.ly/AAProfiling.
