The Spy's Son

by Bryan Denson

The judge ruled that Hooper didn’t have to answer the question.

  Everyone in the room knew that if the judge was boneheaded enough to let Jim free on bail while awaiting trial, the FBI would stick to him like a sea of barnacles.

  Rob Nicholson took the stand as a character witness for his brother. He testified as to the bona fides of his patriot clan. Every member of his family could recite The Star-Spangled Banner. Nick, their father, had retired from the military in 1971 after combat tours in Korea and Vietnam, and he had taken part in the Berlin airlift, one of the early skirmishes of the Cold War. Rob had served in Germany in the U.S. Army Signal Corps. He held top-secret clearance. But he told the court he only joined the service after getting his big brother’s blessing.

  “I was apprehensive about whether or not he would like me to have joined the Army,” Rob testified. “And he wrote me a letter back. I still remember to this day. He told me that it was a noble decision, an honorable decision, and that serving in the U.S. Army was one of the greatest privileges that I could—that I could have.”

  Rob gushed about Jim’s parenting skills.

  “He always, always took time for his kids. He’d tuck them in at night, read to them constantly,” Rob testified. “If they needed help with their homework, he was always there for them.” Rob told the court that Jim had flown him out twice to watch his niece and nephews when Jim left the country on government business, and that Jim felt better knowing the kids were being watched by family.

  “Have you talked to the children about his arrest?” Shapiro asked.

  “Yes, I have,” Rob said.

  “And what have they told you about it?”

  “They do not believe that their dad could have done this, and they are behind their dad one hundred percent.”

  Under cross-examination, Rob admitted it was news to him that Jim was engaged to Kanokwan. Rob said he knew nothing of his brother’s double life in the CIA, his aliases, or his meetings with foreign spies, and that he wasn’t sophisticated about code names, mail drops, or electronic communication gear.

  Shapiro grew agitated. He wanted to put an end to the notion that Jim might make a James Bond escape from the bosom of his own family.

  “Mr. Nicholson,” he said, “how much sophisticated electronic equipment do you have in your house in Eugene, Oregon?”

  “We have a telephone and a fax machine.”

  “Do you have a mail drop in your house?”

  “No, sir.”

  “If it meant your brother was going to be released, would you squawk if the FBI set up camp outside your house?”

  “No, sir.”

  Shapiro then called Len Beystrum—Jim’s boyhood pal and best man at his wedding—to the witness stand.

  “Is he a man of his word, in your opinion?” Shapiro asked.

  “Yes, he is,” Beystrum said. “He’s stuck behind me all my life and he’s interested in seeing this through. I don’t think he’ll flee.”

  “All right,” Shapiro said. “You have a son yourself?”

  “Yes, I have a twelve-year-old son who was born on the same day as Jim’s younger son, Nathan. We told our wives we had it planned since high school.”

  “And what is his middle name?”

  Beystrum said Nathan’s middle name was James, as was his own son’s.

  “We didn’t communicate our plans,” he explained. “So we both named them after Jim.”

  Chesnut cross-examined Beystrum about Jim’s failure to disclose outside income to the CIA.

  “Would your opinion as to Mr. Nicholson change at all if you learned during the course of the last, let’s say, two years, he received over $180,000 from outside income and didn’t report that on his disclosure [affidavit]?”

  “That wouldn’t change my mind.”

  “If it had been a million dollars, would it change your mind?”

  “No, sir.”

  “So virtually nothing that Mr. Nicholson would have done, whether it broke a rule or not, would change your mind as to his . . . character. Is that correct?”

  “I would say that the business that he’s in, there are rules that not everybody is aware of.”

  Betty Nicholson, on the witness stand in a light blue pants suit, pledged the equity in her house as collateral to assure Jim would appear in court. Under questioning by Shapiro, she recalled her last chat with Jim.

  “I think his last comment to me on the phone was to be sure that his children received plenty of hugs because he’s concerned that they won’t get enough without being with him,” Betty said.

  While Shapiro worked to build up Jim’s character, Chesnut took the position that he was a dangerous man with nothing left to lose: The government had taken his house, minivan, and bank accounts. He faced life imprisonment. His fiancée lived in Thailand.

  “Espionage, by definition,” Chesnut said, “gives someone like Mr. Nicholson a place to go, a safe haven from prosecution where they cannot be retrieved by any form of extradition. By definition, there is a place in the world—Russia—that would welcome Mr. Nicholson, provide him with financial support and give him a safe haven from the serious charges in this case. . . . The evidence has shown that he has passed a significant amount of this information already, but what is of such great concern to the United States in a case like this is not what he’s already passed, but what he has up here in his head, from sixteen years of working in so many different places through the agency, working with so many different people. . . . He has already ruined careers, your honor, of a number of people who wanted to dedicate their life to government service. . . . This is an individual who speaks a number of foreign languages. This is an individual who is truly very familiar and comfortable moving in and out of the world because of his work.”

  Chesnut said Jim had a track record of deception, violated his oath of office, disclosed classified information, and lied about his assets. For that reason, he argued, he needed to stay in jail while awaiting trial.

  Defense lawyer Liam O’Grady stood.

  “It’s an interesting weave of an argument, your honor,” he began. “The director of the CIA, director of the FBI get on CNN last week and say they’ve had Mr. Nicholson under investigation, observation, for years, looking in his house, looking in his office, looking in his car, tracking him across the world. And today we hear that there is all kinds of secrets that he may release to the community at some time in the future if he’s permitted to. Well, your honor, that’s just disingenuous. The government knows everything that Mr. Nicholson has done for the last two years, and it knows that he is not a future danger to this community on that basis.”

  O’Grady, who was Jim’s age, told the magistrate that the client sitting next to him—if freed on pretrial release—had nowhere to go. The government’s extensive pretrial publicity over the last week, he said, might have given Jim as much public visibility as O. J. Simpson, the former NFL star acquitted of murder in 1995. He pointed out that the FBI had already seized his client’s passport and all his money, and that Jim was willing to live under house arrest, wear an electronic monitor, and allow his phones to be tapped.

  “And we have an absolutely legitimate explanation for the $61,000 in that Swiss account,” he said. “My goodness, why would a spy who thinks he’s secreting money use his own name on a bank account, put the number of the account on a card in his . . . wallet and leave the receipt for the money in his home. That doesn’t make any sense at all. He is very anxious to prove his innocence on these charges in a court of law where guilt and innocence properly should be determined and go get back to his children, your honor.”

  Judge Jones had the final word.

  “Espionage is by its nature an offense which, in many cases, can be committed only by somebody with the sort of background that this defendant has.” While Jim posed little danger of getting his hands on new U.S. secrets,
the judge feared Jim might hold secrets in his head that were valuable to foreign governments. “Accordingly,” he said, “Mr. Nicholson will be held without conditions of release until trial and is remanded to the marshal’s custody.”

  Len Beystrum joined Jim’s family—Nick and Betty, and half siblings Rob and Tammie—for the drive over to the town house in Burke. The FBI had carted off everything of value, and would eventually sell it all as proceeds of espionage. But they had left a few things—an empty cabinet, a cap-and-ball frontier rifle, and a couple of dozen paintings, which the family boxed up and shipped home to Oregon for safekeeping.

  Judge Jones issued a gag order preventing both legal teams—along with the FBI, CIA, and Justice Department—from commenting on the Nicholson case.

  Jim’s defense team took another stab at getting Jim out of jail while he awaited trial. They took a novel tack, saying that the FBI had proven it could keep eyes on espionage suspects. They used the example of Felix Bloch, a U.S. diplomat suspected in 1989 of selling government secrets to the KGB. The FBI wiretapped Bloch’s phones and performed “bumper-lock” surveillance wherever he went, sticking a circus-like entourage on him for seven months. In the end, Bloch faced no charges.

  Prosecutors fought back, filing court papers of their own. They pointed out that a superseding indictment accused Jim of three espionage charges and that he faced the possibility of life in prison. The government, they wrote, was still reviewing evidence to determine whether it would seek the death penalty against him.

  Chief U.S. District Judge James C. Cacheris was assigned as Jim’s trial judge. As a young defense lawyer in the late 1960s, he and his big brother, Plato Cacheris, had served as defense counsel in the espionage case of Air Force cryptographer Herbert Boeckenhaupt, a Pentagon-based staff sergeant who had apparently seen one too many Bond movies. Boeckenhaupt sold secrets to the Soviets to buy himself Avanti sports cars and was sentenced to thirty years in prison. Plato Cacheris later negotiated Aldrich Ames’ plea in that very courthouse.

  “One who commits espionage has forsaken all allegiance to his homeland,” Judge Cacheris wrote in an order denying Jim’s pretrial release. He noted that it would be in Russia’s best interest to help Jim conceal his crimes. “Finally, in this case, the defendant faces life in prison, or perhaps even execution, if ultimately convicted. These factors compel the court to find that the crimes with which Mr. Nicholson has been charged create an unusually high risk of flight, and a tremendous incentive on the part of a defendant and his or her co-conspirators to procure that defendant’s escape.”

  Cacheris also served as one of the seven judges rotating through the Foreign Intelligence Surveillance Court. Five days before Christmas, the judge dropped a bombshell: He acknowledged that he had signed two FISA orders that allowed the FBI to electronically eavesdrop on Jim. Cacheris said he didn’t feel that approving those orders as a member of the highly secretive court disqualified him from the case. But he said Jim’s lawyers were free to file a motion for his recusal in the Nicholson case if they wished.

  Members of the defense team were taken aback. The judge assigned to hear Jim’s espionage case had just admitted in open court that he had approved secret orders to snoop on him. The defense wasn’t allowed to view those papers, because they were protected from disclosure by the Foreign Intelligence Surveillance Act. This meant that if they challenged the constitutionality of FISA, Cacheris would have to consider the legality of the very orders he had approved.

  Shapiro sought the assistance of Jonathan Turley, a George Washington University Law School professor who was one of the nation’s leading critics of the surveillance court and the law that created it. Turley had long argued that the panel served as little more than a rubber stamp for the FBI’s snooping. He was convinced FISA violated Americans’ constitutional rights against unreasonable eavesdropping on their homes and belongings. Worsening matters, as Turley saw it, the government had gained additional powers under FISA in 1995, when President Clinton signed an executive order that allowed government agents to physically search homes, autos, and other property.

  Turley joined Jim’s defense team, which by early 1997 included eight lawyers. On January 30, they filed a motion asking Cacheris to recuse himself from the Nicholson case: “Under the unique circumstances presented in this case and in the absence of recusal, the same judge who authorized the FISA warrants against Mr. Nicholson will be called upon to assess the validity of the warrants—quite possibly without any substantive input or argument by the defense. . . . The appearance of partiality is raised by the possibility that Judge Cacheris—during his approval of the FISA warrant applications—received confidential information from the government concerning allegations against Mr. Nicholson beyond what will be used at trial; information that, due to the nature of FISA, will be unknown to the defense.”

  At a hearing on February 3, Jim’s lawyers told Cacheris they were mounting a groundbreaking challenge to FISA—the first to attack the constitutionality of the surveillance court’s authority to permit physical searches of targets. If Jim’s lawyers prevailed in such a challenge, prosecutors might have to throw out a mountain of evidence gathered in searches of Jim’s town house, minivan, and CIA office—a potential game changer for the defense. But at the end of the thirty-minute hearing, Cacheris said he wasn’t disqualifying himself. He set trial for April 14.

  Turley told the judge he needed more time to mount a proper challenge of FISA’s constitutionality. He wanted to collect friend-of-the-court briefs from a half-dozen legal and civil liberties groups. Turley, a bold lawyer reviled by many national security lawyers, believed the surveillance court trampled civil liberties in the quest for national security. (Sixteen years later, Edward Snowden, an ex–National Security Agency contractor, took Turley’s argument public by leaking a FISA court order that permitted the NSA to vacuum up the phone records of millions of ordinary Americans as it hunted down foreign terrorists.) Turley knew the outcome of his FISA challenge would have a major impact on Jim’s trial strategy.

  Cacheris, unbowed, told him he had seventy days to prepare for trial.

  “I knew the Nicholson case was the best vehicle for challenging the FISA court,” Turley later said. He had been looking for a test cast to put the law on trial before the U.S. Supreme Court, and he believed Jim’s case was the ideal vehicle to demonstrate the law’s unconstitutionality. “We made it clear we were going to take this FISA challenge all the way.”

  Lawyers spent much of February 1997 arguing the legality of the FBI’s electronic snooping on Jim. Turley filed a motion to suppress the evidence obtained by the surveillance of Jim’s home, office, minivan, safe-deposit box, and personal effects. He wrote that FISA had been denounced for nearly twenty years for failing to meet probable cause standards of the Fourth Amendment, which established that Americans had the right to be secure in their homes. Turley now sought copies of the Justice Department’s applications to the surveillance court and the orders signed by Cacheris (and perhaps others).

  Prosecutors in response acknowledged that searching Jim’s home violated his privacy, but that the sneak and peeks were no more intrusive than, say, bugging his house, including bedrooms—which was legal under FISA. Attorney General Janet Reno signed an affidavit saying the release of the surveillance court documents would harm national security. Reno submitted, for the judge’s eyes only, an affidavit from FBI director Louis Freeh, stamped “Top Secret,” which she said set out the facts for her claim. She wrote that releasing this information in open court, or to the defense, would reveal FBI methods and sources that would undermine U.S. counterintelligence operations.

  The FBI’s applications to eavesdrop on Jim almost certainly held highly classified information about the Russian who helped the FBI pinpoint Jim as the leaker of CIA secrets. If Cacheris ruled that the defense had the right to know that information, Jim’s lawyers would have carried a huge bargaining chip int
o plea negotiations. Reno and the U.S. government would go to almost any length to protect its sources—so much so that government prosecutors might have found themselves offering Jim a light sentence for espionage rather than risk public exposure of the Russian’s identity.

  The defense, meanwhile, filed a peculiar motion that appeared to be grasping at straws. Jim’s lawyers asked the court to pay for him to join them in a flight to Singapore, where they would retrace his steps to prepare for trial. Prosecutors rightly pointed out that espionage wasn’t an extraditable offense in Singapore, meaning that once Jim set foot there, he’d be a free man.

  Cacheris denied Turley’s FISA challenge on Valentine’s Day, writing that while lawyers had attacked the constitutionality of the surveillance law since its inception in 1978, judges had upheld it every time.

  This essentially crushed Jim’s defense.

  His lawyers would soon schedule meetings with government prosecutors and key FBI agents to hammer out a plea agreement. These gatherings offered Jim the chance to confess all his spy work for Russia in exchange for a more lenient sentence than life in prison. The government would not have to disclose its Russian source, and they would succeed in putting Jim behind bars.

  But for how long?

  On the last day of February 1997, Jim signed a plea agreement admitting that he was guilty of conspiracy to commit espionage. Part of the contract required him to tell government intelligence officials every detail of his betrayals to Russia before he gave interviews to news organizations. He also agreed to submit to polygraph examinations as part of those debriefings and turn over to the government any money he might earn by writing a book about his life or selling movie rights to his story.

  A few days later, Jim forfeited his assets to the United States. This included the $180,000 he had stashed in banks (including the Swiss account, and savings set aside for Nathan, Star, and Jeremi), his minivan and Toshiba laptop, plus his town house and every stick of furniture in it. Jim also gave up all the interest in his Army and CIA retirement funds, although Laurie’s divorce decree gave her half of his pension from the time they married until she left him in Bucharest. The government seized Jim’s stamp and coin collections, including a couple of one-ounce Krugerrands, his Rolex, jewelry, an Olympus 35mm camera, books—­including his collection of James Bond novels by Ian Fleming—a Technics CD player and sound system, and a handful of firearms that included a .40-caliber Glock 23 pistol (the preferred handgun of countless federal agents). The FBI even hauled off Jim’s king bed frame, a brass model with baked enamel inscribed, “Especially handcrafted for Batman.”