by David Wise
“He admitted it was him in the pictures,” Parker said. “He never admitted meeting Danilin in Washington. We talked to him about three hours. Some of it was, how do you like Minnesota, the weather. We would change the subject.”
Conway said the bureau hoped to turn the PALMETTOS. Once Lopez confessed, instead of being arrested, he might agree to work for the FBI against the Russians, becoming a double agent for the United States. Or as Conway put it: “Our main purpose was to try to flip the guy. We were trying to give him a break. We gotcha: You can go to jail, or you can work with us. It was a little more sophisticated than that, but that was the bottom line.”
It is a classic maneuver in spy cases and has often worked. In questioning an espionage target, the FBI will attempt—without making any actual promises—to lead a suspect to think he might be able to avoid prison by confessing or acting as a double agent. And sometimes such cooperation does get the suspects off the hook. In this case, Parker encouraged Lopez to talk but offered no guarantees.
“We would not say if he became a double for the bureau he would not be prosecuted. It would depend on the extent of his cooperation. If he turned over to us half a dozen recruitments by the GRU, there was a good possibility he’d walk.
“We’re not after you, we’re after the people who are running you. If you’ll cooperate with us, things will go easier for you. We didn’t promise him he would walk. We did not say we were going to arrest him.”
The FBI agents, Parker said, asked Lopez “when and how he was recruited and by whom. He would not say. He seemed on the verge of cooperation at various points, and we did what we could to make him roll over.”
While the FBI men were questioning Lopez at the hotel, Alicia Lopez was simultaneously being interviewed by Carmen Espinoza and an agent from the Minneapolis office. The two agents had moved in as soon as Lopez had left for the hotel.
“They lived in a town house,” Espinoza said. “We rang the bell, she answered. I went in, and we spoke in Spanish. We told her they were caught. We showed her surveillance photos of them making the drops, some with their child. She was hard as a rock. She was a tough cookie. She said we had fabricated the photographs. She didn’t believe it. She wasn’t going to say anything, and we’re making all this up.”
When Espinoza reported that Alicia Lopez was stonewalling, Parker decided to bring the PALMETTOS together. “We had told Lopez his wife was also being interviewed,” Parker related. “At that point, we suggested he call his wife. We were at an impasse. He agreed to call his wife and ask her to come to the hotel.
“She showed up about half an hour later. She and her two kids were brought over by Carmen Espinoza and the other agent.” Now there were nine people in the room, five agents and four Lopezes. “When Alicia walked in, her husband said, ‘They know everything.’ ”
“Don’t say anything,” Alicia shot back.
Recognizing Flores, she embraced him. “She gave me a hug and a kiss,” he recalled. “She said, ‘¿Qué pasa? What is this all about?’ ”
The PALMETTOs, of course, knew what it was all about. It was Parker’s move. “We decided to leave them alone in the hotel room, and we went to eat,” he said.
Parker wanted the Lopezes to have time together to talk over their predicament. But Parker was apprehensive; he had checked the windows in the room, which was on the fourteenth floor, and knew that they could be opened. “I was worried about a suicide pact,” he said. “They’re in the room, and they’re saying, ‘Oh shit, what are we going to do?’ and they go out the window. That is not a nice thing to happen.”
As soon as Parker had left the hotel, he went across the street to the FBI office and called Gene Peterson at FBI headquarters to report that Lopez had confessed. “I briefed him on what Lopez had said. . . . He said, ‘OK, get it into a 302,’ which is an interview report. I said, ‘When do we get the authorization to arrest?’ He said ‘We’ll get back to you.’ ”
In less than an hour, Peterson called back, having talked to the Justice Department. Parker shook his head at the memory of that moment. “Pete said they wouldn’t authorize it.”
Parker was crushed and furious. His disappointment was shared by Peterson, who had supervised the case for so long. The bureau had by then worked the overall operation for twenty years—the longest espionage case of its kind in the history of the cold war. Two FBI men had died. The Justice Department had refused to move unless Parker got a confession, and he had just gotten it. But still the answer was no.
The FBI agents returned to the hotel, but the Lopezes declined to say more. “Lopez said, ‘What are you going to do to me?’ We said we don’t know yet, or words to that effect.” Parker then told the Lopezes they could go.
Aurelio Flores said the news seemed almost disappointing to the couple. “They wanted to be martyrs, to go on trial. He [Lopez] said, ‘We want our kids sent back to Mexico, and we want to stand trial.’ They wanted the publicity.
“Alicia said, ‘Why are you letting us go, we could have a trial.’ She said, ‘Is this like a spy swap? The Soviets have somebody they are going to exchange for us?’ She said to Gilberto in Spanish, ‘Ask Aurelio, why are they letting us go?’ ” There may have been another reason why the Lopezes were scared, Flores said. “I think she was worried about what might happen when they got back to Mexico and had to explain to their handlers what had happened. She didn’t say that, but I felt that.”
Espinoza, too, remembered that the Lopezes were reluctant to leave, though for another reason. “They thought they were going to be killed if they walked out the door,” she said. “They didn’t want to leave. I had to convince them it was OK. Finally, they walked out and left.”
Parker knew the spies were slipping out of his grasp, but he was not ready to give up just yet.
The FBI continued to watch the couple. “The Lopezes were under surveillance from the time they left the hotel,” Parker said. Two days later, Parker got word that the Lopezes were leaving for the Minneapolis–St. Paul airport.
Lopez may have thought there was safety in numbers. Arturo Madrid, the chairman of the Spanish department, got a frantic call from Manuel Guerrero, Lopez’s colleague and friend. “He said, ‘Arturo, I need you to meet me at the airport.’ ” With another professor from the Spanish department, Madrid sped to the airport, where he met Guerrero. “Manuel said, ‘I can’t explain right now. I need you to come to the gate with me. Gilberto is leaving on a plane for Mexico City right now.”
The FBI agents conducting the surveillance had followed the Lopezes to the airport. With several other agents, Parker also drove to the terminal.
He found a telephone and called William O. Cregar, the assistant director of the FBI in charge of the intelligence division.
“They’re in the terminal,” Parker said. He pleaded with his superior in Washington to try to reverse the decision. “I’ll call back later,” Parker said.
“No, they’re not going to authorize,” Cregar replied.
Parker watched the Lopezes get on the plane.
As the airliner taxied toward the runway, he called Cregar again.
“We’ve got one chance,” Parker said. “They’re going to land in San Antonio. It’s not too late.”
“Forget it,” Cregar said.
It was clear that the conversation was over. Parker added, “I was not in a position to question Bill Cregar.”
Totally frustrated, Parker watched until the plane carrying the Lopezes was only a speck in the distant sky.
He alerted the FBI’s San Antonio office, where Edward J. O’Malley was the assistant special agent in charge. “O’Malley had two of his biggest, toughest guys board the plane. One of the agents leaned over and said, ‘Have a good trip, Mr. Lopez.’ As the agents got off the plane, Lopez threw up.”
Professor Rolando Hinojosa-Smith, the new chairman of the Chicano studies department at the University of Minnesota, was startled to get word that day that Professor Lopez had vanished. “I went
to work one day, and all of a sudden I was confronted with a missing professor,” he said.
No accurate explanation was given to Lopez’s students for his mysterious departure. Another faculty member took over his classes.
Among the faculty, there was a good deal of buzzing over the unexpected, fast exit of Lopez and his family. Hinojosa-Smith reported Lopez’s abrupt departure to Frank J. Sorauf, an eminent political scientist then serving as dean of the College of Liberal Arts. But Sorauf had apparently already learned something about what had happened, according to Arturo Madrid. Along with a few other colleages, Madrid knew that Lopez had been confronted by the FBI. Madrid recalled speaking with Hinojosa-Smith at the time.
“I remember saying to Rolando we really must protest this, this is outrageous,” Madrid said. “And Rolando said, ‘Well, I’ve already taken it up with the dean, who has informed me that Gilberto was operating as an agent of a foreign power.’ ”
In the days that followed, word spread among Lopez’s closer associates on the faculty that he had somehow been involved with Cubans. It was a cover story encouraged by Lopez himself.
Arturo Madrid remembered running into Lopez a year later in Mexico. “I was in Guadalajara, and I saw Gilberto Lopez at a conference I was at,” Madrid said. “He came up and thanked me profusely for having come to the airport that day. I kept Gilberto at a distance. I remember talking to my friend Jorge Bustamente. . . . I said, ‘Be careful, he [Lopez] was acting as an agent of a foreign power.’ Years later, Jorge told me what happened” the day Lopez and his wife fled to Mexico. “He said he had got a call from Lopez from San Antonio saying, ‘It’s a life-or-death situation, meet me at the airport in Mexico City.’ He came off the plane white as a sheet, scared to death, looking all around, and they drove him to his father-in-law’s house. He told Jorge he had been a courier for the Cubans and the FBI had shown him incriminating photos in which he was giving or receiving something from somebody from the Cuban mission to the UN, or the Cuban office in Washington.”
When Gene Peterson had relayed the disappointing word from headquarters on June 3, Parker recalled, he said the Justice Department attorneys, in refusing to authorize the arrest, “had alluded to the entries in Austin.” Yet the department’s internal-security lawyers had known of the taps, bugs, and videos of the PALMETTOS before Parker ever went to Minneapolis to confront the Lopezes.
The decision to let the spies go was due in part to the complex legal issues involved but also to a confluence of external political factors. The PALMETTO case came at a time when the law governing electronic eavesdropping in espionage cases was evolving, and the government’s power to intrude in the life of the individual for purposes of national security was being reexamined by Congress and the courts.
Probably no murkier area of law existed at the time than that surrounding wiretaps, bugs, and surreptitious entries in foreign-intelligence cases. The FBI’s use of these methods reflected the long and continuing tension in America between liberty and security. The Constitution was designed to protect against government intrusions and violations of the rights of the individual. The FBI, with responsibility for catching spies and terrorists, focused primarily on its mission. And the courts tended to give the bureau more latitude in counterintelligence investigations against foreign targets than in ordinary criminal cases.
In 1936, President Franklin D. Roosevelt authorized J. Edgar Hoover to collect intelligence on domestic “subversive activities.” In 1940, Roosevelt approved warrantless wiretaps in such cases, as well as against spies. Wiretaps can be installed from outside a building, but installing bugs to pick up room conversations normally requires entry into the premises. Hoover, a bureaucratic master at protecting himself, pressed the Justice Department for permission to plant bugs in national-security cases, authority he finally won in 1954. In 1965, however, Lyndon Johnson’s attorney general, Nicholas Katzenbach, changed the rules; from then on, the attorney general would have to give written approval in order for the FBI to plant bugs.
Under Hoover, the FBI had carried out literally hundreds of “black bag” jobs—illicit entries—many to install bugs. Hoover ostensibly banned the practice in 1966 after a subordinate pointed out that burglaries were “clearly illegal,” but the break-ins continued. In any event, the prohibition did not apply to break-ins to plant bugs against or search premises of foreign targets.
Two years later, Congress passed the Omnibus Crime Control Act of 1968, which required court warrants for wiretaps and bugs in criminal cases. Congress said nothing, however, about national-security targets, a loophole that allowed such practices without a warrant in spy cases. The law also contained a disclaimer that said the statute did not limit the powers of the president to authorize whatever was necessary to collect foreign intelligence or to protect against foreign spies.
In 1972, the Supreme Court in United States v. United States District Court for the Eastern District of Michigan, known as the Keith case, barred warrantless wiretaps for domestic-intelligence purposes, but it was and has remained silent on the use of taps in foreign-intelligence cases. Between 1971 and 1976, when the various techniques were used against the PALMETTOS in Salt Lake City, Austin, and Minneapolis, the law was unclear on the status of warrantless wiretaps, bugs, and entries in espionage cases. During the early 1970s, the approval of the attorney general was required by Justice Department policy but not by law or presidential executive order.
In 1976, President Ford issued an executive order on foreign counterintelligence requiring the attorney general, then Edward H. Levi, to issue guidelines allowing warrantless taps and bugs in espionage cases with the approval of the attorney general. The guidelines were classified. In 1978, President Carter issued a similar executive order.
Finally, in 1978, Congress attempted to dispel some of the legal fog by passing the Foreign Intelligence Surveillance Act (FISA) and creating new machinery to govern eavesdropping and entries by the government in espionage cases. Since October 1978, when FISA was signed into law, wiretaps or break-ins to place bugs to eavesdrop on agents of foreign powers must be authorized by a special court.7 This judicial machinery did not exist, however, when the PALMETTOS and IXORA were subject to electronic surveillance.
In the PALMETTO case, it was not entirely clear why the Justice Department raised questions about the FBI’s entries at the eleventh hour, after Lopez had confessed. “The Justice Department knew everything about the case all along,” Parker said. “I talked to Tafe about the entries.”
Because some of the FBI’s actions in the case had not been approved by the attorney general, Parker said, “we all knew it might be a problem. We knew that from the beginning, but we were willing to go to court with it. If DOJ [the Department of Justice] wasn’t, why didn’t they say that at the start?” Given the fuzzy state of the law at the time, Parker felt the department might well have prevailed had it chosen to prosecute.
In meetings with the Justice Department lawyers, FBI officials insisted that there had not even been any unauthorized entry in Austin. Some weeks before the confrontation in Minneapolis, Peterson recalled, he and Parker met with John Martin. “We told Martin unequivocally that nothing was acquired from any unauthorized techniques. There was no trespass.”
Peterson’s argument rested on the unusual physical circumstances in Austin, where a camera had been installed in a crawl space that was above but not part of the PALMETTOS’ duplex. But the camera’s pinhole in the ceiling, however minute, could be regarded as an “entry.”8 And the bureau’s agents had gone into the Lopezes’ house when they were away. On the other hand, since Lopez had freely sent a key to Aurelio Flores, it could also be argued that the entry was consensual. But a defense attorney would certainly maintain that the key had not been given to Flores so that his associates could copy Lopez’s code pads and remove his shortwave radio.
Peterson said Martin was noncommital in response to his arguments and indicated he would take the matter under advisement. On June
3, Peterson said, after receiving word from Parker that Lopez had confessed, he went to see Martin again. “Martin said he could not approve prosecution because of the entry in Austin. Martin said something about the political climate not being right to prosecute where the use of the techniques is going to come out. John Martin had never lost an espionage case. That was a factor.”
Bureaucratic confusion also played a part in the department’s refusal to authorize the arrest of the PALMETTOS. In 1971, a message went out from FBI headquarters to Tampa and Salt Lake City informing both offices that President Nixon’s attorney general, John N. Mitchell, had authorized an entry into the Lopezes’ apartment at the University of Utah to install a microphone. Mitchell, Nixon, and the president’s national security adviser, Henry A. Kissinger, were all briefed regularly on the progress of the PALMETTO case.
As a result of this message, the FBI agents who tapped and bugged the Lopezes in Salt Lake City believed they were acting under the authority of the attorney general. The message, however, was in error. There is no record in the FBI’s files that the request for approval by the attorney general ever left the bureau.
In retrospect, it is clear that several external events, and politics, played at least as great a role in the department’s decision as any points of law. It was the post-Watergate era; six years before, Richard Nixon had tried to use the CIA and the FBI to coverup a burglary at Democratic National Committee headquarters. Then, in 1975, the Senate intelligence committee headed by I daho Democrat Frank Church had revealed abuses by then ation’s intelligence agencies—drug testing on unsuspecting subjects, assassination plots, and mail opening by the CIA, and “black bag” jobs by the FBI. The intelligence agencies were on the defensive.
In April 1978, less than two months before Parker flew to Minneapolis to interview the Lopezes, a federal grand jury had indicted two senior FBI officials, Mark Felt and Edward Miller, for authorizing break-ins to search the homes of relatives and acquaintances of fugitive members of the Weather Underground.9 “The government has to speak with one voice,” said a Justice Department attorney who worked on the PALMETTO case. “We’re prosecuting somebody at a high level in the FBI for illegal activities, then we’re going to go prosecute a case where the bureau was doing the same thing?” The searches in the Felt-Miller case did not take place as part of a foreign counterintelligence investigation, however. But from a political viewpoint, prosecution of the PALMETTOS might have appeared inconsistent.