The following is from the Nov. 17, 2015, edition of The Atlantic. SMU Law Professor Jeffrey Kahn provided expertise for this story.
November 17, 2015
By Garrett Epps
Behind Steven Spielberg’s spy thriller, Bridge of Spies, is one of the strangest cases ever decided by the U.S. Supreme Court. Take its very name: Rudolf Ivanovich Abel, also known as ‘Mark’ and also known as Martin Collins and Emil R. Goldfus, Petitioner, v. United States. The United States had convicted a Soviet spy, but was still not certain about his name. Historians still argue whether Abel was a brilliant master spy, or a mere administrator who was unable to recruit an effective network at all. “Here we are 58 years later, still wondering what went on,” Anthony Palermo, the only living lawyer who took part in Abel’s trial, told me.
Questions still surround the arrest, search, and detention that led to Abel’s conviction for espionage in 1957. In The Case of Colonel Abel, a gripping narrative of the case, Professor Jeffrey Kahn of Southern Methodist University writes that the FBI stalked Abel for days—that they knew exactly where he lived and could have easily performed an ordinary arrest, armed with arrest and search warrants. Palermo, who as a junior prosecutor prepared the agents involved for the trial, rejects that interpretation. The impetus for the arrest came from the Immigration and Naturalization Service, he told me in an email. “The Courts who considered the facts rejected the defense argument that this was a ‘pretextual’ arrest initiated or orchestrated by the FBI.”
Or take Justice Felix Frankfurter’s opinion, written for a five-justice majority, which solemnly said, “Of course the nature of the case, the fact that it was a prosecution for espionage, has no bearing whatever upon the legal considerations relevant to the admissibility of the evidence.”
The curious, in fact, would do better to start with Kahn’s article than with the opinion. In very brief (omitting, for example, the curious case of the newsboy who was sold a copy of The Brooklyn Eagle and got a hollow nickel filled with microfilm), here are the facts: A Soviet spy defected and fingered his American handler, code-named “Mark.” The bureau notified the Immigration and Naturalization Service (INS, which today is called Immigrations and Customs Enforcement), of the presence of an alien—deportable for the use of a false name. An INS official issued an “administrative arrest warrant”—no judge required—against the suspected spy.
FBI and INS agents went to the Latham Hotel in Manhattan, where “Mark” was living. While INS agents held back, the FBI agents sat him half-dressed on the bed and told him to cooperate with them or the INS would arrest him; meanwhile, INS conducted a brief search of the hotel room. The INS ordered him to pack his bags and come to INS headquarters. Before he left the Latham, Abel politely paid his bill. At that point, FBI agents were free to search his room. When they reached district headquarters, the INS searched his bags. The searches turned up an apparent coded message, phony identification papers in three names, a hollow pencil with 18 microfilms inside, and a cipher pad.
Formally, the issue before the court was whether the detention and the searches were a violation of the Fourth Amendment’s ban on “unreasonable” searches and seizures. But the real issue was what happened after the searches. From the INS detention center, Abel was hustled to a secure facility in McAllen, Texas, where for more than five weeks agents interrogated him day or night, seeking to convince him to go back into the field as a double agent for the U.S.
Abel gave them nothing. Finally they flew him to New York, and, with great fanfare, announced his arrest on charges of espionage.
The charges carried a possible penalty of death.
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