The Annals of Unsolved Crime

by Edward Jay Epstein

  When Litvinenko walked him out, he recalled that Litvinenko made an extraordinary proposal. After rambling on about suspicious Russian billionaires who had established residence in Spain, he suggested a new business venture for which he and Lugovoi were going to Spain. All Litvinenko told Kovtun was that the service he would provide was to “solve their problems.” Kovtun said he asked, “What kind of problems?” and Litvinenko replied “We’ll provide their problems and then fix them.” Kovtun assumed that Litvinenko planned to somehow extract money from Russians residing in Spain. (It was subsequently revealed at the December 2012 preliminary hearing in London that Lugovoi and Litvinenko planned to go together to Spain.) This was Kovtun’s last contact with Litvinenko.

  Since both Lugovoi and Kovtun claimed that they were merely innocent bystanders who themselves had been contaminated by the same polonium-210 that killed Litvinenko, I asked the office of the Russian prosecutor general what evidence the British government had provided to support its extradition request for Lugovoi. Supposedly, the British and Russians had undertaken a joint investigation of Litvinenko’s death. I was told that the case had been consigned to a new unit called the National Investigative Committee, which was headed by Alexander Bastrykin, a former law professor and a deputy attorney general from St. Petersburg. His office was located in a nondescript but well-guarded building across the street from Moscow’s elite Higher Technical University in the district of Lefortovo.

  Before I could meet officials in a conference room there to review the British file, I had to agree to indemnify the Russian government for any costs that resulted from disclosing the British evidence, submit my proposed questions in advance, and agree not to identify by name any of the officials working for the committee and to refer to them collectively as the “Russian investigators.” I agreed to these terms, and the Russian investigators then provided me with access to the British files.

  What immediately caught my attention was that they did not include the basic documents in any murder case, such as the postmortem autopsy report, which would help establish how—and why—Litvinenko died. In lieu of it, Detective Inspector Robert Lock of the Metropolitan Police Service at the New Scotland Yard wrote that he was “familiar with the autopsy results” and that Litvinenko had died of “Acute Radiation Syndrome.”

  Like Sherlock Holmes’s clue of the dog that didn’t bark, this omission was illuminating in itself. After all, Great Britain and Russia had embarked on a joint investigation of the Litvinenko case, which, as far the Russians were concerned, involved the polonium-210 contamination of Russian citizens who had contact with Litvinenko. They needed to determine when, how, and under what circumstances Litvinenko had been exposed to the radioactive nuclear component. The “when” question required access to the toxicology analysis, which usually is part of the autopsy report. There had already been a leak to a British newspaper that toxicologists had found two separate “spikes” of polonium-210 in Litvinenko’s body, which would indicate that he had been exposed at two different times to polonium-210. Such a multiple exposure could mean that Litvinenko was in contact with the polonium-210 days, or even weeks, before he fatally ingested it. To answer the “how” question, they wanted to see the postmortem slides of Litvinenko’s lungs, digestive tract, and body, which also are part of the autopsy report. These photos could show if Litvinenko had inhaled or swallowed the polonium-210, or gotten it into his bloodstream through an open cut.

  The Russian investigators also wanted to know why Litvinenko was not given the correct antidote in the hospital and why his ailment had not been correctly diagnosed for more than three weeks. They said that their repeated requests to speak to the doctors and see their notes were “denied,” and that none of the material they received in the “joint investigation” even “touched upon the issue of the change in Litvinenko’s diagnosis from thallium poisoning to polonium poisoning.” They added, “We have no trustworthy data on the cause of death of Litvinenko since the British authorities have refused to provide the necessary documents.”

  The only document provided in the British file indicating that a crime had been committed is an affidavit by Rosemary Fernandez, a Crown prosecutor, stating that the extradition request is “in accordance with the criminal law of England and Wales, as well as with the European Convention on Extradition 1957.”

  The British police report that accompanied the extradition papers did not cite any conventional evidence, such as eyewitness accounts, surveillance videos of the Pine Bar, fingerprints on a poison container (or even the existence of a container), or Lugovoi’s possible motive. Instead, the case against Lugovoi was entirely based on a “trail” of polonium-210 radiation that had been detected many weeks after Litvinenko, Lugovoi, Kovtun, and others had been in contact with the polonium-210.

  From the list of the sites supplied to the Russian investigators, it is clear that a number of them coincide with Lugovoi’s movements in October and November 2006, but the direction is less certain. When Lugovoi flew from Moscow to London on October 16 on Transaero Airlines, no radiation traces were found on his plane. It was only after he had met with Litvinenko on October 16 that traces were found on the British Airways planes on which he later flew, suggesting to the Russian investigators that the trail began in London and then went to Moscow. They also found that in London the trail was inexplicably erratic, with traces that were found, as they noted, “in a place where a person stayed for a few minutes, but were absent in the place where he was staying for several hours, although these events follow one after another.”

  When the Russian investigators asked the British for a comprehensive list of all the sites tested, the British refused, saying it was not “in the interest of their investigation.” This refusal led the Russian investigators to suspect that the British might be truncating the trail to “fit their case.”

  Despite its erratic nature, the radioactive trail clearly involved the Millennium Hotel. Traces were found both in rooms in which Lugovoi and his family stayed between October 31 and November 2, and in the hotel’s Pine Bar, where Litvinenko met Lugovoi and Kovtun in the early evening of November 1. If Litvinenko’s tea was indeed poisoned at that Pine Bar meeting, as the British contended, Lugovoi at least could be placed at the crime scene. But other than the radiation, the report cited no witnesses, video surveillance tapes, or other evidence that showed that the poisoning had occurred at the Pine Bar. It could just as well have occurred early in the day at any of several other sites that also tested positive for radiation.

  Litvinenko, who was probably the best witness to that day’s events, initially said he believed that he had been poisoned at his lunch with his Italian associate Mario Scaramella at the Itsu restaurant. (Even one week after he had been in the hospital, he gave a bedside BBC radio interview in which he still pointed to that meeting, saying Scaramella “gave me some papers.… after several hours I felt sick with symptoms of poisoning.” At no time did he even mention his later meeting with Lugovoi at the Pine Bar.)

  Not only did Itsu have traces of polonium-210, but Scaramella was contaminated. Since Scaramella had just arrived from Italy and had not met with either Lugovoi or Kovtun, Litvinenko was the only one among those people known to be exposed to polonium-210 who could have contaminated him. If so, Litvinenko had been tainted by the polonium-210 before he met Lugovoi at the Pine Bar. Other evidence from the British radiation trail indicated that Litvinenko had been contaminated well before his meeting with Scaramella. For example, several nights earlier, Litvinenko had gone to the Hey Jo club in Mayfair, and the place where he was seated in the VIP lap-dancing cubicle tested positive for polonium-210.

  The most impressive piece of evidence in the British report involves the relatively high level of polonium-210 in Lugovoi’s room at the Millennium Hotel. Although the police report does not divulge the actual level itself (or any other radiation levels), Detective Inspector Lock states that an expert witness called “Scientist A” found that these hotel tr
aces “were at such a high level as to establish a link with the original polonium source material.” Since no container for the polonium-210 was ever found, “Scientist A” presumably based his opinion on a comparison of the radiation level in Lugovoi’s room and other sites, such as Litvinenko’s home or airplane seats. Such evidence would only be meaningful if the different sites had been pristine when the measurements were taken. However, all the sites, including the Millennium hotel rooms, had been compromised by weeks of usage and cleaning before they were tested. Therefore the differences in the radiation levels could have resulted from extraneous factors, such as vacuuming, washing, or heating conditions.

  The Russian investigators also found that these levels had little evidentiary value because the British had provided “no reliable information regarding who else visited the hotel room in the interval between when Lugovoi departed and when the traces of polonium-210 were discovered.” As a result of this nearly monthlong gap, they could not “rule out the possibility that the discovered traces could have originated through cross-contamination by outside parties.”

  Hospital tests confirmed that Lugovoi, Kovtun, Scaramella, and Litvinenko’s widow, Marina, all had some contact with polonium-210. But it was not clear who contaminated whom. The British police never found the container for the polonium-210. The Russian investigators concluded that all the radiation traces provided in the British report, including the “high level” cited by “Scientist A,” could have emanated from a single event, such as a leak at the October 16 meeting at a security company in Berezovsky’s building (which was also contaminated). But they could not find “a single piece of evidence which would confirm the charge brought against A. K. Lugovoi.”

  The radiation trail led to what appeared to be a dead end. All that could be established from it was that probably no later than October 16, 2006, by unknown means, individuals in London, including Litvinenko, Lugovoi, and Kovtun, had been tainted by a rare radioactive isotope. The small quantity of polonium-210 found in London could have been made in any country that has an uninspected nuclear reactor—a list in 2006 that included Russia, Great Britain, China, France, India, Israel, Pakistan, and North Korea (which manufactured a substantial quantity for its October 2006 nuclear tests). It could also have been stolen from stockpiles in the former Soviet Union or in America, where, according to the International Atomic Energy Agency’s Illicit Trafficking Data Base, there had been fourteen incidents of missing industrial polonium-210 since 2004.

  Consequently we not only don’t know when it arrived in London; we don’t know where it came from. Nor do we know why it was smuggled into Great Britain. It could have been smuggled to sell on the international black market. It also has some utility in the universe of modern espionage, since it can be used to power a miniaturized transmitter that can be planted in such classic targets as an embassy ceiling, a diplomatic vehicle, or an article of clothing. Because a single gram can produce 140 watts of energy, it can be left in place for long periods of time. It can also be used as an exotic assassination weapon, since it is lethal once it is inhaled or otherwise gets into the bloodstream. But if polonium-210 were to be deployed as an assassination weapon, the assassin would need to handle it with great caution, since it is extremely unstable and becomes airborne with ease. Before Litvinenko’s death, six people are known to have died of exposure to polonium-210—two in a radiation lab in France, three in a nuclear facility in Israel, and one in a nuclear research lab in Russia. All of these deaths were accidents resulting from airborne leakage.

  There is also some mystery about the activities of the men whose persons and premises were tainted by the smuggled radioactive isotope. At the time that his offices tested positive for polonium-210, Berezovsky had an extraordinary agenda, which he himself described as overthrowing the regime of his archenemy, Putin. And he had gathered in London a number of former intelligence officers from Russia and Ukraine to undertake projects that furthered this agenda. Litvinenko was also involved in a convoluted plot with Scaramella, who was also contaminated with polonium-210 in London. A self-styled nuclear-waste investigator in Naples, Scaramella had enlisted Litvinenko in a plot to incriminate putative members of a “Red Mafia” in Ukraine that smuggled arms, including nuclear components. One of their targets was an ex-KGB agent living in Naples, to whom who they arranged for a box of contraband Russian rocket grenades to be delivered. The plan was to tip off the Naples police to the shipment and claim it was to be used for an assassination, but it backfired because Scaramella’s and Litvinenko’s phone conversations were being listened to by the Italian intelligence service. Scaramella had also provided police with a tip that led them to a suitcase containing enriched-uranium rods that supposedly belonged to other “Red Mafia” agents trafficking in nuclear components. As a result of these entrapment schemes, Italian authorities criminally charged Scaramella with planting false evidence, and, after he returned from London, he was imprisoned in Naples on charges of calumny and arms smuggling.

  As for the crime itself, most of the evidence in the case has either vanished or been suppressed. Polonium-210 has only a brief half-life of 138.4 days. By 2012, more than twelve half-lives have passed, meaning that almost all of whatever traces were gathered no longer exist in identifiable quantities. So there is no longer a radioactive trail, if indeed there ever was one. The autopsy results are still classified as a national security secret, and the coroner’s report has never been completed.

  This void has given rise to a profusion of theories. The most prevalent one, which has received wide circulation from Berezovsky and his associates, is that Putin gave the orders to murder Litvinenko, and that Lugovoi carried them out. Certainly, Putin had a motive, as Litvinenko had been publishing books, articles, and internet reports charging that the FSB blew up six residential buildings in Russia, killing hundreds of innocent people, on Putin’s orders. A second theory is that Putin’s enemies in London arranged the death of Litvinenko so to cast suspicion on Putin. Even before Litvinenko was dead, websites controlled by Berezovsky and his allies had declared Putin the villain. A third theory holds that the ex-KGB mafia that Litvinenko and Scaramella were trying to frame for smuggling nuclear materials arranged his poisoning. His attempt to incriminate ex-KGB men in Ukraine, Russia, and Italy by planting items with a radioactive signature could also have led to his own exposure. A fourth theory suggested to me by Alexander Goldfarb, who, it will be recalled, was with Litvinenko when he died, is that Litvinenko was killed because of his investigation into organized crime in Spain. According to Goldfarb, Litvinenko, who had made several trips to Madrid in 2006, had uncovered connections between Spanish mafia and criminal elements in Moscow and the Kremlin. He said that Litvinenko planned to provide further information about this liaison to José Grinda González, a special corruption and organized crime prosecutor in Spain, and theorized he was poisoned on November 1 to silence him. Kovtun also told me that Litvinenko was attempting to ferret out compromising data about Russian activities in Spain in November. If he had found such material, and was about to reveal it, it could indeed provide a motive for murder. (Although the choice of a slow-acting poison such as polonium-210 would not have prevented Litvinenko from revealing these secrets during his weeks in the hospital.) Finally, there is the theory that Litvinenko’s associates, if not Litvinenko himself, were engaged in smuggling radioactive material and an accidental leak contaminated him. Among other things, his murky operations, including seeking contacts in the Pankisi Gorge, a lawless area in Georgia that had become notorious for nuclear smuggling, could have exposed him to accidental radiation.

  My own assessment, after considering the evidence made available to me in London, Washington, D.C., and Moscow, is that Litvinenko was likely contaminated by accidental leakage of polonium-210. If so, his death would be consistent with all the known previous cases of polonium poisoning in France, Israel, and Russia. Such a leak would be even more likely if a vial was handled outside a lab because polonium-2
10, which can turn into a gas because of the heat produced as it decays, has a propensity to leak from containers. To be sure, polonium-210 is not readily available, other than to people in rarified professions, such as nuclear scientists, smugglers, and intelligence operatives. As for the latter category, Litvinenko was involved with a number of intelligence services, including British intelligence, Russia’s FSB, America’s CIA (which rejected his offer to defect in 2000), and Italy’s SISMI (which was monitoring his phone conversations). One way that an intelligence service might use polonium-210 is in a battery for a miniature transmitter used to track a person of interest. Another way would be to use it in an intelligence game as a sample in an exchange to entrap someone suspected of buying nuclear components.

  The British government has gone to considerable lengths to conceal Litvinenko’s relationship with its intelligence services (even delaying the coroner’s report for, as of this writing, six years). Other intelligence services have no doubt also made sure that their dealings with Litvinenko will not surface. But we know Litvinenko and a number of his associates, whether wittingly or not, were in contact with a container of polonium-210. My conclusion is that it leaked.