The hunt for spies: A lesson in politics and law from the Cold War

The green sign on the door facing a public corridor in the Prettyman Courthouse building in downtown Washington, D.C., advises “Restricted Access.” To reinforce that warning, there’s a biometric hand scanner on the adjacent wall: the hand and bone structure of anyone seeking entry must be compared to the three-dimensional images on file. And beyond that door, in a room encased in walls of reinforced concrete — the precise requirements for constructing a Sensitive Compartmented Information Facility are detailed in 156-page technical compliance manual issued by the director of National Intelligence — sits the Foreign Intelligence Surveillance Court.

{mosads}The court, established as part of the 1978 Foreign Intelligence Surveillance Act (FISA), was conceived by lawmakers as a way of ending past abuses in the investigation of espionage cases and as a means for the government to present classified information in court proceedings without the fear that the nation’s adversaries would get a handle on operational tradecraft.

With the imprimatur of the FISA court judge’s ruling, legitimacy — and as much transparency as could be prudently offered in a counter-intelligence case — would be brought to the process. Judicial review would ensure that the pursuit of the nation’s enemies was not a political vendetta, but rather an investigation into a genuine foreign threat. The charges of witch hunts would go into the dust bin history, discarded along with such Cold War rhetoric as “We will bury you!”

It is an unfortunate irony, then, that the Republican members of the Intelligence Committee who voted to release the Nunes memo are citing the decision made by the FISA court on four separate occasions to monitor Carter Page, a foreign policy advisor to the Trump presidential campaign, as the proof that the Deep State is up to its old tricks. No less disturbing, the president’s refusal to release the Democratic rebuttal memo, citing national security concerns, suggests little appreciation (or even knowledge) of the charged history that preceded the existence of the court and led to its formation.  

Consider, for instructive example, another Russian espionage case that deeply divided the nation — the prosecution of Julius and Ethel Rosenberg. This is a spy story that begins in a former girls’ finishing school just a stone’s throw across the Potomac River in Virginia. At Arlington Hall, as this top-secret government facility was known, a team of ingenious code breakers had been working since the tail-end of World War II to crack the “unbreakable” Russian codes.

In 1948, when Meredith Gardner, the linguist who had inventively succeeded in recreating the KGB code book, began to read the decoded cables sent from Moscow Center to its spies working in America, he discovered the existence of “Operation Enormoz” — Russia’s covert plan to steal the nation’s atomic secrets. Working hand-in-hand with FBI agent Robert Lamphere, using the translated Soviet cables as their guides, the two men began to hunt down dozens of secret agents working against America. It was this operation that led to the arrests of Julius and Ethel Rosenberg.

Yet the Arlington Hall evidence — the cables were indisputable smoking guns — was never revealed in a court room, or, for that matter, shared with a dubious public. One reason was that Gardner’s initial efforts to break the Soviet code had been aided by a “black bag job” — as the FBI’s warrantless surreptitious entries were known in the Bureau.

An FBI team, according to the accounts given by Lamphere, had broken into a Soviet trade office in New York, making off with copies of messages before they had been encoded, and Gardner exploited these “plain texts” as he tackled the encryption. If this illegal operational skullduggery had been revealed in court — and there was little doubt that dogged defense lawyers would keep hammering away until it was — the cables, like any fruits from a poison tree, would have been ruled as inadmissible. And the Bureau’s playing fast and loose with the Constitution would have become a matter of record.

But there was an even larger concern that worked to persuade the intelligence community not to use the cables in the court room — the operation at Arlington Hall was top secret; not even the president had been informed that the Soviet code had been broken. It was “in the national interest,” the cautious spymasters ruled, that it remain that way.

Therefore, the messages from Moscow Center that would have once and for all established that Julius Rosenberg was a Soviet agent who ran a ring of spies were kept secret. And so were the decoded cables that would have saved Ethel Rosenberg’s life: the messages revealed that Ethel, while having knowledge of her husband’s espionage, was not herself an active Soviet agent.

Nearly 30 years later, the FISA court was convened to put an end to such investigative abuses as black bag jobs and unauthorized wiretaps. There would be a process that would allow counter-intelligence work to proceed legally – if it could be established that the concerns were valid. And there would be a means for intelligence agencies to introduce their operational evidence in the court room without the fear that it would be shared with the nation’s enemies. The public’s confidence in the nation’s spy catchers would be restored.

Yet this proved to be wishful thinking. The uproar over the Nunes memo and now the Democratic rebuttal memo demonstrate that neither laws nor facts matter much. The politicization of the hunt for spies is deeply rooted in the way Americans look at the world. During the Cold War, it was the liberals who couldn’t be convinced that the Red Scare was something to be scared about. And now it’s the alt-right who think they have more to fear from the Deep State than from Putin.

As no less an authority than Karl Marx observed, “history repeats itself — first as tragedy, then as farce.”      

Howard Blum is a contributing editor at Vanity Fair and the author of several non-fiction books. His new book, “In the Enemy’s House: The Secret Saga of the FBI Agent and the Code Breaker Who Caught the Russian Spies,” an account of the hunt for the Russian atomic spies, is published by HarperCollins.