Cases & Controversies: Espionage

Espionage: My introduction to the National Security State (1983-84)

            There are some moments in life you never forget, moments seared into your memory forever. Like your high school graduation, your first look at your child, your marriage ceremony – or your first encounter with the National Security apparatus.

While I was not quite a virgin in the area of sealed documents or even classified materials, my representation of Professor Alfred Zehe marked my first foray into the so-called National Security State. An East German academic scientist, in Boston for an academic conference hosted by the decidedly innocuous American Vacuum Society, Professor Zehe found himself in an unenviable position in 1983. In early November of that year, the FBI arrested the moderately eminent physicist on charges of espionage.[1]

Down in Washington D.C., the FBI had been trolling for Eastern Bloc agents who might take the bait offered and engage in what might be loosely deemed “spying.” The Bureau selected some still-classified but obsolete decades-old submarine sonar-technology specifications. They then shopped—some might say peddled—the specs up and down Embassy Row. From one Soviet-satellite state’s embassy to the next, the FBI went undercover fishing, yet no one would bite, at least not at first. Finally—finally—the East Germans took the bait and purchased the documents from the undercover FBI operative. 

The Stasi asked Professor Zehe, who was a faculty member at Dresden University and spent half the year at the University of Puebla in Mexico, to help them evaluate the obsolete materials. While in Mexico the professor fulfilled their request, since his permission to travel was contingent upon the evaluative assistance he provided the Stasi from time to time. (American scientists and academics are no less prone to advise and consult for the United States government in such situations, with the important exception that American citizens’ right to travel abroad is not contingent on rendering such assistance.) Having learned of Professor Zehe’s role in evaluating the papers, the FBI arrested him upon his arrival for the physicists’ conference in our City on a Hill.

When asked by the well-known East German “Spy Trader” Wolfgang Vogel who could represent Professor Zehe, a long-time colleague and friend of mine, Harvard Law School professor Alan Dershowitz, recommended me. Upon entering the case, I recognized immediately what was at issue—a peculiar species of entrapment. Professor Zehe had never received materials directly from the undercover officer, let alone solicited such materials. He was presented with the sonar plans by his government, which had asked for his analysis. What’s more, I recognized a larger disturbing development fueling the prosecution of the professor. The U.S. government, marching under the broad banner of National Security, was attempting to extend its jurisdiction beyond its geographic bounds. It was doing so by invoking our nation’s notoriously broad and vague “conspiracy” laws – an East German operative purchased the documents from an American undercover agent in Washington and brought them to Mexico to be examined there by a professor who had no role in their acquisition. Yet, by the miracle of conspiracy law, the professor was accused of conspiring to violate American espionage laws. The breadth of the concept was mind-numbing. Just think of how many American academics could be accused of the same crime, but by Soviet-bloc states. It suddenly would make academic travel to the Soviet bloc a risky activity. Not that federal prosecutors often think about the broader consequences of their actions.

I met with Vogel at the Parker House Hotel in downtown Boston to eat breakfast the day after Thanksgiving Day, 1983. We discussed the logistics of my forthcoming representation of Professor Zehe. We also discussed the assistant U.S. Attorney who I recognized sitting a few tables away from us. And then we discussed, in the table just beyond that occupied by the prosecutor, two men in trench coats. “I am sure we are being followed, but it’s always hard to tell who is following you, the KGB or the FBI or CIA,” Vogel remarked to me with a twinkle in his eye. “After all, they all order their trench coats from the same manufacturer.” I recognized at that moment how Vogel had survived in a totalitarian country, where full travel and other privileges were available only to a few elite members of the nation. Vogel spoke in elliptical parables, making his political points via indirection, speaking in coded terms that would not be easily understood by those conducting surveillance of him or tapping his telephone. Not only sartorially accurate, “They all order their trench coats from the same manufacturer” was Vogel’s way of also saying that there is very little fundamental difference between the mentalities of Soviet and American intelligence operatives.

Since all of the alleged criminal activity took place in a foreign territory, my colleagues (then-law partners Jeanne Baker and Nancy Gertner) and I barraged the court with dismissal motions. And I told the prosecutors pointblank, “All the East Germans did is bite, they didn’t go out looking for this stuff; you went shopping on Embassy row.”[2] Yet perhaps the most infuriating aspect of the prosecution was the federal prosecutor’s – then U.S. Attorney, now FBI Director Robert Mueller – insistence that I submit to a security-clearance procedure before I could read the classified documents, including the sonar technology plans that had been sold to the East Germans and passed along to Prof. Zehe for his assessment.

My partners and I had retained the services of a technical expert who could examine the submarine sonar documents and let us know if they were worthy of being classified, either initially or, especially, at the time of the alleged espionage. U.S. Attorney Mueller demanded that we submit to the security-clearance procedure, which I felt would have been a gross and unnecessary invasion of my own privacy, to access the documents for our own review and that of our expert. I refused. And I was furious. The FBI and the Department of Justice reasoned that it was OK to sell those obsolete documents to the East Germans yet refused to show them to a U.S. citizen – a lawyer, no less – with no criminal record nor anything in his background to cast doubt on his loyalty.

I complained to the judge, the Hon. David S. Nelson, for whom I had worked while a law student and for 18 months following graduation. I tried to explain the idiocy of the government’s insistence that I get a security clearance to view documents that the FBI had actually selected to sell to the Stasi! While we were arguing over whether I could review the documents, the East Germans were pouring over them in East Germany . My pleas were all to no avail. While I refused to undergo the classification procedure on principle, I was fortunate that one of my then-law partners, Jeanne Baker, agreed to do it, and the case was allowed to proceed.

          All the while, secretive back-channel trades were being discussed between East German and U.S. officials. Out of the blue, however, Professor Zehe, who was out on bail at the time and living in an apartment under the watchful eyes of both East German and FBI agents, decided he wanted to defect to the United States. He asked that I arranged for two FBI agents to meet with him in my office. The FBI agents slipped the professor out the backdoor of my office, unbeknownst to the East German escorts waiting in their car out front. Turns out the City of Boston ’s fickle parking enforcement—the ever-looming threat of ticketing and towing that anyone who has visited the Athens of America knows all too well—had forced the East Germans to stay outside while Professor Zehe defected. Score one for Boston ’s legal-enforcement peculiarities.

          Or not. The U.S. government refused to accept Professor Zehe as a bona fide defector, despite the fact that he had undergone a complete debriefing and disclosed everything he had done—a jumble of admissions that put his defense counsel in a difficult situation. With only two options—either plead guilty and hope for a light sentence, or plead not-guilty and face your chances with the American legal system after the facts were all admitted—Zehe decided to plead guilty. A few months later, he, along with some other “trade bait” sitting in American jails, was traded for Anatoly (since re-named Natan) Shcharansky.