National Security: Protecting the Nation from Merchants, Artists, Professors, Students and Lobbyists for Non-Profits?
Journalists aren’t the only ones who run the risk of being accused of committing espionage and other crimes against state security in the course of doing their jobs. Over the past 30 years, so too have those working in a variety of professions, from artists and professors to merchants and lobbyists. When I first encountered the infinite malleability of the Espionage Act in the mid-1980s, while representing an East German academic, I assumed that the expanded use of the statute was the product of the U.S. government’s Cold War mentality. Only later did I fully recognize that the kind of prosecutorial zeal that ensnared Professor Alfred Zehe was hardly limited to cases with an arguably real, even if vastly stretched, national security dimension. But national security was one of the early arenas where the feds pioneered the use of vaguely worded statutes to trap the innocent.
Securing the release of Jewish “refusenik” and human rights activist Anatoly Sharansky from the Soviet gulag had become a cause celebré in the late-1970s. The most promising strategy for freeing Sharansky involved arranging a trade of the high-profile prisoner in exchange for Soviet bloc prisoners held in the West, particularly convicted espionage agents in American prisons. Yet a serious problem stood in the way: there was a dearth of such prisoners at that time. So the American intelligence establishment, in collaboration with the State Department, went about the task of fishing for “trade bait.” All they needed was a Soviet bloc agent (or a reasonable facsimile), and a set of facts they could squeeze into the Espionage Act.1
The opportunity presented itself on November 4, 1983, when Professor Alfred Zehe, a prominent East German physicist, landed in Boston to attend a conference of the American Vacuum Society at the Massachusetts Institute of Technology. It came as a total shock when the professor was immediately arrested by federal agents and dragged to the U.S. District Court for Massachusetts, where he was charged with espionage. So much for the vacuum physics conference. The Americans, if they could convict their prey, had their trade bait. But why Zehe?
On the faculty of Dresden University, Zehe was a favored member of the academic East German elite. He was therefore given considerable leeway to travel, even to the West, and regularly spent a portion of each academic year teaching at the University of Puebla, in Mexico. Zehe made himself available as a technical consultant for the East German government whenever asked. It was hardly unusual on either side of the Iron Curtain. And so he developed a relationship with state security personnel.
When I was an undergraduate at Princeton in the 1960s, it was common knowledge on campus that certain professors consulted with and even recruited for the Central Intelligence Agency—a fact that was later borne out when former CIA director Allan W. Dulles’s papers were released in 1998.2 When I arrived at Harvard for law school, I learned that some faculty members were particularly tight with the Department of Defense. And doubtless a significant number of faculty members at the school down the road from Harvard, the Massachusetts Institute of Technology, served as consultants to national security and defense agencies. Indeed, the Dulles papers revealed that joining the Princeton group were professors from Harvard, M.I.T., Berkeley, Duke, and the Carnegie Institution. The difference, of course, was that American academics were not required to perform such services for their government to win the privilege to travel. They did it for the money, the prestige, or out of patriotic motives, but it was voluntary. In the Soviet bloc, cooperation with the government, especially by the elite, was expected.
Professor Zehe’s involvement in what the Justice Department would later dub “espionage” and “conspiracy to commit espionage” began when U.S. Naval Intelligence selected some documents to use as bait which described long-obsolete submarine sonar technology that remained classified. The agency selected an employee working for a defense contractor in the Washington-Virginia corridor to work undercover to peddle the secret documents to an Eastern bloc agent. The undercover agent made a couple of stops along Embassy Row looking for a buyer. It was on his second attempt at the East German, or German Democratic Republic (GDR), embassy that he finally found an interested buyer.
The GDR agent who purchased the sonar technology documents insisted that they be delivered to the embassy in Mexico so that Professor Zehe could review them and advise his government concerning their meaning and value. Zehe, without being told the source nor the nature of the documents, was summoned from Puebla to Mexico City to meet with GDR officials to explain the documents. Zehe then returned to his teaching post. He thought nothing more of this rather routine incident until he was taken into custody by the FBI in Boston.
My law partners, Jeanne Baker and Nancy Gertner, and I were hired to represent Professor Zehe by the East German lawyer Wolfgang Vogel, the legendary “spy trader.”3 Vogel had arranged the repatriation of Francis Gary Powers, the American pilot who had flown an American U-2 high-altitude spy plane into Soviet airspace, only to be grounded and captured by the Soviets in 1960. It was the beginning of a long, if controversial, career for the suave lawyer who was the only member of his profession to belong to the bars of both East and West Berlin.
Vogel understood from the start that if Zehe were convicted, it would be up to him to figure out how to get the professor back. Vogel’s (but not necessarily his government’s) long-range plan, which ironically depended on the conviction of East Germans in U.S. custody, fit nicely into the Americans’ desire to accumulate enough bait to secure the exchange of the high-profile Sharansky. My partners’ and my role, however, was to represent Zehe to the best of our ability with the intention of securing his acquittal. Vogel fully understood this when he retained us, since we clearly explained to him the ethical obligations of American lawyers to represent their clients zealously and without conflicts of interest. Vogel may have been a “spy trader,” but Zehe was not a spy. Still, Vogel retained us, likely assuming that if Zehe were in fact convicted, he would figure in a trade. If acquitted, Zehe would simply go home.
When we examined the factual and legal issues in the case, my partners and I discovered a very potent reason why the physicist should be acquitted and allowed to return to East Germany without the need of a trade: by any reasonable interpretation of the Espionage Act, Zehe had not committed a crime. After all, he was a non-citizen who had performed outside the United States the rather routine service for which he was indicted. If federal prosecutors’ loose interpretation of the Espionage Act were allowed to stand in this instance, it would be extremely dangerous for a rather large number of foreign academics, scientists, and technical experts who occasionally consulted for their governments on issues of national security to set foot in the United States. Likewise, it would surely open the way for foreign governments, by way of retaliation, to treat American experts in a similar fashion when they traveled abroad for business or pleasure. It would be, in short, an absurd and ultimately self-defeating interpretation of the law, with disastrous consequences for those scholars who consult for their governments.
But this was the 1980s, the beginning of the “Silly Putty®” era of federal criminal law. The prosecution team, led by then-Assistant U.S. Attorney (and later director of the FBI) Robert S. Mueller, pushed the case forward, and so we filed a motion asking U.S. District Judge David S. Nelson to dismiss the indictment. We lost. Despite his admission that the Espionage Act did not state explicitly that it applied to non-citizens acting outside the United States, Judge Nelson concluded that it did so implicitly, however much the legislative evidence for such a conclusion was “sparse and at times ambiguous.” It therefore covered Professor Zehe’s scientific consultation at the GDR embassy in Mexico.4
The national security aura overhanging the case was powerful, to the extent at times of bordering on the comic. At one point I asked the judge to order the government to allow me to examine the sonar technology plans at the center of the case. I wanted to determine whether the defense te
am needed to call in an expert witness to assist in understanding the documents. Prosecutors objected to my having access to the sonar plans unless I obtained a security clearance. I lodged an objection to such a requirement. I was, after all, a native born American citizen and a member of the bar with no criminal record and nothing in my past to suggest disloyalty. I was asking to see the very same documents selected by Naval Intelligence and the FBI to pass along to the East German government. Those very documents were still sitting in some state security file in East Germany! Yet Judge Nelson sustained the prosecutors’ objection. I refused, partly on principle and partly for tactical reasons, to undergo the security clearance procedure, not wanting to concede that the passing of the documents under any circumstances could be deemed injurious to national security, or that the obsolete documents were still properly classified. Eventually, the FBI backed down and the prosecution withdrew the motion demanding I obtain clearance. All the while, secretive back-channel trades were being discussed by East German and U.S. officials, without my or my colleagues’ knowledge.
Prosecutors then suggested a way for Professor Zehe to avoid a conviction: end the prosecution by defecting and take up residence and an academic career in the United States. 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 would agree to defect to the United States. He agreed to meet with two FBI agents in my office. The FBI agents slipped the professor out the back door of my office, unbeknownst to his East German escort (a humorless trench-coated character right out of central casting) waiting out front in his car. It turned out that the City of Boston’s hard-fisted parking enforcement unit had forced the East German to stay outside, live parking, while Professor Zehe defected.
The U.S. government, however, threw an enormous monkey wrench into the works. It refused to accept Professor Zehe as a bona fide defector despite the fact that he had undergone a full debriefing, complete with a lie-detector test—the results of which did not meet with FBI approval. (Years later, Zehe suggested to me—and I now believe that he might well be right—that both he and his lawyers were naïve in believing that the government’s defection suggestion was offered in good faith, since the feds had an overriding interest in using Zehe as trade bait rather than in bringing him over to the American side with a promise of permanent residence.) With only two options, either plead guilty and hope for a light sentence, or plead not-guilty and take his chances with the American legal system, Zehe decided to plead guilty. A few months later, he, along with some other Eastern bloc trade bait sitting in American jails, was exchanged for Anatoly Sharansky, who headed for Israel where he was received as a hero and commenced a new life as Natan (his Hebrew name) Sharansky. In contrast, when Zehe returned to East Germany, he found himself out of favor with the regime. When the GDR government fell and the Berlin Wall was torn down in 1989, Zehe left Germany and resumed his academic career in Puebla. The unified Germany was no kinder to him than either the East Germans or the Americans had been.
The precedent set by the Department of Justice, however, had legs. As tension between the West and Islamic radicalism began to grow in the increasingly contentious world that emerged after the collapse of Soviet Communism, the feds’ Zehe escapade proved a worrisome harbinger of things to come. In October 2002, Wall Street Journal reporter Daniel Golden noted that ties between federal intelligence agencies and American universities had increased substantially after the terrorist attacks of September 11.5 An increased number of academic political scientists and economists, he reported, were consulting with intelligence agencies, and the CIA’s Intelligence Technology Innovation Center sponsored $2 million a year of “unclassified research by post-doctoral fellows” at 18 universities, including Harvard, Stanford, Carnegie Mellon, the University of Michigan, and Louisiana State University. What Golden didn’t say was that the Zehe case put them at much greater risk.
Dual citizens, whose numbers among the professions have been growing during this era of increased globalization, are in even greater peril. On May 8, 2007, Iranian authorities arrested Haleh Esfandiari, a U.S.-Iranian dual citizen described as “a prominent Iranian-American academic who headed the Woodrow Wilson Center’s Middle East programme in Washington.”6 She ended up spending more than 110 days in confinement and was questioned repeatedly by Iranian authorities before she was finally released. Former Congressman Lee H. Hamilton, president of the Wilson Center, said that he learned from his contacts in Iran that “her interrogations had focused almost entirely on activities of the Wilson Center.”7 Her detention, he exclaimed, was “an affront to the rule of law and common decency.”8
Iranian intelligence continued its dragnet of U.S.-Iranian dual citizens. Just three days later, on May 11, authorities detained Kian Tajbakhsh, described by the Associated Press as “an urban planning expert who has also worked for the World Bank and is a senior research fellow at the New School in New York,”9 and by June they had snared Ali Shakeri, described as “a peace activist and founding board member at the University of California at Irvine’s Center for Citizen Peacebuilding.”10 These detentions, for reasons of Iranian “security,” had followed the arrest of Parnaz Azima, an Iranian-American journalist-scholar working in Prague for the United States-financed Radio Farda, a Persian-language service of Radio Free Europe.11 She was eventually released, but in March 2008, she was convicted and sentenced in absentia to one year in prison for “spreading anti-state propaganda.” If she failed to return to serve her sentence, she would lose the deed to the home of her elderly mother, which was used to post bail.
It’s a surprisingly dangerous world for academics, but the United States would be hard pressed to claim that it did not contribute to a body of precedents that make it easier to charge those engaged in what is perhaps most harshly characterized as “scholarly espionage” with serious national security crimes, and to do so for political rather than legally defensible reasons.
Just a few years after the Zehe case, the Department of Justice made clear the lengths to which it would go in the name of protecting national security, when my law firm and I became involved in a post-conviction appeal defending two people charged with assisting India’s nuclear weapons program. “[T]he most troubling criminal proceeding over which I have presided in nearly seventeen years as a trial judge”—these were the words of Judge Douglas P. Woodlock, who presided over the trial. A Reagan appointee to the federal trial bench, Woodlock is one of those rare judges who cannot be pinned down as either pro-government or pro-defendant, “liberal” or “conservative,” in criminal cases. His reputation is that of a cerebral, no-nonsense jurist who relishes the intellectual aspects of his cases. He has been known to think long and hard on difficult legal issues before rendering a decision, often to the dismay of court administrators who seem to value efficiency and “closed cases” statistics above all else.
Much about the prosecution was indeed disturbing, including, as we later learned, the fact that the government’s position on the proper interpretation of the criminal statute and attendant regulations underlying the case contradicted its stance in other courts. But the more fundamental underlying problem was the utter inability of judges, lawyers, and experienced businessmen to figure out whether and how the federal export control regulations restricted the shipping of a certain piece of equipment manufactured by Walter L. Lachman, founder and chief owner-operator of two related companies (Fiber Materials, Inc. and Materials International) engaged in making high-technology materials and components mainly for the defense industry, and Maurice H. Subilia, Jr., his second-in-command.
Lachman and Subilia’s long and arduous legal battle began in 1993 when they, along with their two companies, were indicted for allegedly selling equipment with military capabilities to India. In 1988 the two had arranged for a Swiss company to manufacture and ship to India a piece of equipment called a hot isostatic press, or HIP, which, due to its large size, would have required an ex
port license had it been manufactured in and shipped from the United States. Lachman’s company manufactured and shipped from the United States a smaller HIP that everyone agreed did not need an export license. (HIP devices subject materials to extreme heat and pressure, making them harder and more heat-resistant. Such technology is critical for a multitude of purposes, both industrial and military. The larger HIP, in particular, had uses in missile manufacture.) However—and here was the rub—Lachman’s company also exported to India a control panel capable of operating both the smaller American-manufactured HIP and the larger Swissmanufactured device. Was export of this panel prohibited without a license?
The political climate of the time played a large role in Lachman’s and Subilia’s indictment. During the late-1980s and early-’90s, Pakistan sought to bolster its nuclear arms program, aggravating an already hostile relationship with neighboring India. Prosecutors later claimed that the ability to super-harden materials used to manufacture the nose-tips of atomic missiles, and thus enhance their accuracy, was crucial to India’s efforts to maintain its advantage in the arms race with Pakistan.
The export of certain materials and devices in this area was subject to two somewhat interlocking, but also conflicting, sets of regulations. One set of regulations issued by the Department of State (“State”) dealt with controlling the export of items “specially designed” for military purposes, in hopes of both cooling the atomic arms race and maintaining American nuclear supremacy. To ship such specially designed equipment abroad, sellers would need export licenses. The other set of regulations, established by the Department of Commerce (“Commerce”) for the purpose of encouraging American economic activity and a vibrant export sector, dealt exclusively with commodities having “dual” civilian and military uses. And so, while “specially designed” military-use materials and equipment clearly required an export license, “dual use” items were in somewhat of a twilight zone. Commerce insisted that it needed information when any “dual use” item was considered for shipment abroad so that it could examine the full context and decide whether to allow the shipment.
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