09_KAHN_V17_FINAL_6-15-11.DOC (DO NOT DELETE) 6/15/2011 12:22 PM The Case of Colonel Abel Jeffrey Kahn(cid:13) MULTUM IN PARVO1 INTRODUCTION In June 2010, journalists for the Associated Press reported the arrest of ten Russian spies, all suspected of being “deep-cover” illegal agents in the United States.2 Seeking to convey the magnitude of this event, the (cid:13) Assistant Professor of Law, Southern Methodist University. This article resulted from an invitation by the U.S. Department of Justice to address an international conference on Russian criminal law held at the A.I. Herzen Russian State Pedagogical University in St. Petersburg, October 6-8, 2010. Presentations based on this article were also made at the University of Wisconsin and the University of Helsinki on October 14 and 29, 2010, respectively. I thank Vin Arthey, Jeff Bellin, Bill Bridge, Louis Fisher, Fred Moss, Lynn Murray, Anthony R. Palermo, Meghan Ryan, Harry Shukman, Jenia Turner, Matthew Waxman, and my seminar students at SMU, particularly Nicole Hay. 1. “There is much in little.” This five-kopeck Soviet postage stamp bears Abel’s image under the heading, “Soviet intelligence officer.” The stamp is available at http://en.wikipedia. org/wiki/File:1990_CPA_6265.jpg. 2. Pete Yost & Tom Hays, 10 Alleged Russian Secret Agents Arrested in U.S., 263 09_KAHN_V17_FINAL_6-15-11.DOC (DO NOT DELETE) 6/15/2011 12:22 PM 264 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 5:263 journalists wrote that this “blockbuster series of arrests” might even be as significant as the FBI’s “famous capture of Soviet Col. Rudolf Abel in 1957 in New York.”3 The reference may have been lost on many Americans, but Colonel Abel’s story of American justice at a time of acute anxiety about the nation’s security is one that continues to resonate today. The honor, and error, that are contained in Colonel Abel’s story offer lessons worth remembering as the United States struggles against a new enemy: international terrorists. One important lesson is that ad hoc departures from the requirements of constitutional criminal procedure, even in the pursuit of seemingly exigent and unique national security threats, tend to cause more trouble than they are worth. Another is that these lessons have been repeatedly learned and, it would seem, repeatedly forgotten. We should be in the process of relearning these lessons today. In that spirit, after briefly summarizing Colonel Abel’s case and some of the themes it shares with contemporary cases, this article presents selected aspects of Colonel Abel’s arrest, trial, and appeal. Early in the morning of June 21, 1957, almost exactly fifty-three years before the June 2010 arrests, Special Agents Edward Gamber and Paul Blasco of the FBI pushed their way into Room 839 at the Hotel Latham in Manhattan.4 The FBI agents sat a sleepy and half-naked Abel on his bed, identified themselves as charged with investigating matters of internal security, and questioned him for twenty minutes, insinuating knowledge of his espionage activities by addressing him as “Colonel.”5 The FBI agents told Abel that “if he did not ‘cooperate,’ he would be arrested before he left the room.”6 When Abel refused, the FBI signaled to agents of the Immigration and Naturalization Service (the INS, then under the authority of the Department of Justice), who were waiting outside. Under the close observation of the FBI agents, the INS agents arrested Abel, searched him and the contents of his room, and seized several items as evidence of Abel’s alienage.7 Immediately after Abel had “checked out” of the hotel with an INS escort, the FBI agents obtained permission from the hotel manager to ASSOCIATED PRESS, June 28, 2010. 3. Id. 4. “Pushed” is the verb Special Agent Blasco chose to describe their entry. Direct Examination of FBI Special Agent Paul J. Blasco. Transcript of Record at 175, Abel v. United States, 362 U.S. 217 (1960), No. 2 [hereinafter Transcript]. The Transcript of Record may be accessed digitally through the “U.S. Supreme Court Records and Briefs, 1832-1978” series available through the Gale Database, http://find.galegroup.com/. 5. Id. at 179-183. Abel was also directly informed that the FBI had “received information concerning [his] involvement in espionage.” Id. at 184. 6. United States v. Abel, 258 F.2d 485, 492 (2d Cir. 1958); Mildred Murphy, F.B.I. Sifts Abel's Possessions for Possible Clues to Espionage; Cryptic Notes, Films, Scribbled Names and Commonplace Objects Found in Suspect's Rooms Studied Here, N.Y. TIMES, Aug. 9, 1957, at 8. 7. Abel v. United States, 362 U.S. 217, 223-24 (1960). Abel did not consent to any search, nor was his consent sought. Id. at 223. 09_KAHN_V17_FINAL_6-15-11.DOC (DO NOT DELETE ) 6/15/2011 12:22 PM 2011] THE CASE OF COLONEL ABEL 265 search Room 839 themselves. There they found a cipher pad, a hollowed- out pencil, and microfilm, all of which became evidence used to convict him at his criminal trial.8 Neither the FBI nor the INS sought a warrant signed by a federal judge or a U.S. Commissioner to arrest Abel or to search his room.9 The immigration agents possessed only an administrative order signed by another Justice Department official, the INS District Director in New York, granting them authority to detain Abel on a suspected immigration violation.10 The initial decision to bypass the standard warrant procedure was perhaps driven by difficulties of surveillance, although Abel’s whereabouts were known long enough before his arrest to have obtained a judicially authorized arrest warrant.11 “We were well aware of what he was when we picked him up,” the Commissioner of Immigration, Lt. Gen. Joseph M. Swing, told reporters. “Our idea at the time was to hold him as long as we could. . . . [W]e were holding him in the hope that sufficient evidence could be gathered to indict him.”12 The Commissioner said that 8. Abel v. United States, 362 U.S. at 225. Abel tossed these three items into a wastebasket prior to leaving his hotel room under arrest. The cipher pad was hidden in a piece of wood wrapped with sandpaper. The microfilm was hidden in the pencil. Brief for the United States at 23, Abel v. United States, 362 U.S. 217 (1960), No.2, 1959 WL 101553. 9. United States v. Abel, 258 F.2d at 490. At the time, a United States Commissioner performed several roles now tasked to a United States Magistrate Judge, including issuing search and arrest warrants. See Charles A. Lindquist, The Origin and Development of the United States Commissioner System, 14 AMER. J. L. HISTORY 1, 2 (Jan. 1970). 10. United States v. Abel, 258 F.2d at 491. Section 242(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. §1252(a), granted the INS this administrative arrest power. Abel v. United States, 362 U.S. at 232. 11. According to Anthony R. Palermo, a key member of the prosecution team, Abel was initially observed by FBI agents as early as mid-May, more than a month before his arrest. But the agents staking out his Brooklyn studio lost track of him, and did not observe him again until the night of Wednesday-Thursday, June 19-20th, when he was followed to the Hotel Latham. Interviews with Anthony R. Palermo, August 2 and September 17, 2010. In an affidavit submitted for Abel’s criminal trial, Department of Justice Special Attorney Kevin T. Maroney averred that no arrest warrant was sought because the Government believed (due to the unwillingness of the Government’s key witness, a Soviet defector, to testify) that it had insufficient evidence available to secure either an arrest warrant or an indictment at that time. Affidavit of Kevin T. Maroney, Transcript, supra note 4, at 57. Mr. Palermo drafted Maroney’s affidavit based on his personal interviews with FBI and INS agents. It should be noted that the reluctance of this witness to testify at trial would not seem to have been an insurmountable impediment to obtaining a warrant to search Abel’s studio (although alerting Abel’s Soviet bosses that his cover was blown, as would his criminal arrest) and a superseding indictment could certainly have been obtained following a lawful arrest and search. 12. Richard C. Wald, Spy Hunters Had Eye on Abel a Year, N.Y. HER. TRIB., Aug. 12, 1957, at 1 (as reproduced in Transcript, supra note 4, at 75-78). As discussed further below, Commissioner Swing’s reference to indictment appears to have been a post hoc rationalization of the FBI’s failure to turn Abel into a double agent. This ambition was not fantastical, notwithstanding Abel’s stoic refusal to cooperate; a senior Soviet intelligence officer, Alexander Mikhailovich Orlov, fled to the United States in 1938 and published The 09_KAHN_V17_FINAL_6-15-11.DOC (DO NOT DELETE) 6/15/2011 12:22 PM 266 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 5:263 his officers would not have arrested Abel had the FBI not requested that they do so.13 In other words, the immigration law was used as a pretext for the INS to arrest the man that the FBI wanted to detain itself, but thought it could not. But there seems to be more to this story, for it may not have been mere doubt about the power to detain Abel that led to this tandem operation. As already noted, reasonable minds might differ about whether the FBI had probable cause to arrest Abel and search his rooms.14 Another explanation for the FBI’s warrantless arrest might have been the FBI’s desire to keep Abel’s detention absolutely secret; a warrant would have required an arraignment, the opportunity for legal counsel, and the potential for press coverage. What transpired after Abel’s detention suggests that avoiding the publicity that a standard arrest and arraignment would generate may well have influenced the FBI’s modus operandi. At the Hotel Latham, the INS gave Abel a written order to appear at INS offices in Manhattan to show cause why he should not be deported.15 Perhaps because he was “the most professional spy we have yet encountered” (as his prosecutor later informed a rapt press corps), Abel remained there for only a few hours.16 Instead, later that day, he was secretly bustled onto a special plane waiting for him in Newark and flown thirteen hours to a federal detention center in McAllen, Texas.17 He was held there for almost seven weeks. During this time the FBI (not the INS) questioned him in lengthy interrogation sessions and without a lawyer. The FBI hoped to turn him into a double agent or at least obtain intelligence about Soviet espionage. Secret History of Stalin’s Crimes (1952). The defection of Abel’s subordinate, which led to Abel’s arrest, may have further encouraged hope to capitalize on Abel’s own opportunism. The FBI misjudged its quarry. 13. Wald, supra note 12. 14. See supra note 11. During Abel’s detention in Texas, discussed infra, one of the FBI agents involved in his arrest submitted an affidavit to a federal judge in support of a warrant to search Abel’s Brooklyn studio. The affidavit stated that Abel had been “taken into custody” by INS officials and that “subsequent to his arrest” Abel had revealed his identity and citizenship to INS officials. The affidavit made no mention of the involvement of the FBI in either Abel’s arrest, interrogation, or continuing detention in Texas, where this information was obtained. Affidavit of Agent Joseph F. Phelan, Transcript, supra note 4, at 48-49. 15. Order To Show Cause and Notice of Hearing, reproduced in Transcript, supra note 4, at 34-37. The order compelled Abel to appear at 70 Columbus Avenue in Manhattan on July 1, 1957, and informed him that he had the right to appear with counsel, to present evidence and witnesses, and to cross-examine government witnesses. Id. at 35-36. 16. The Rise and Ruin of a Successful Spy, LIFE MAG., Aug. 19, 1957, at 22. The quotation is from Assistant U.S. Attorney William F. Tompkins. 17. Brief for Petitioner at 7, Abel v. United States, 362 U.S. 217 (1958), No.2, 1958 WL 91804. Frank Gibney, Intimate Portrait of a Russian Master Spy, LIFE MAG., Nov. 11, 1957, at 126. 09_KAHN_V17_FINAL_6-15-11.DOC (DO NOT DELETE ) 6/15/2011 12:22 PM 2011] THE CASE OF COLONEL ABEL 267 But Colonel Abel met threats and blandishments alike with stony silence.18 The FBI finally gave up. He was quickly processed through deportation proceedings (for which he was permitted a lawyer), found deportable, but not deported.19 Instead, after three more weeks of interrogation without the benefit of any counsel, Abel was returned to New York to face capital charges of military and atomic espionage.20 Only with the announcement of his indictment on August 7th, did his forced disappearance come to an end.21 Abel had been held by federal agents in solitary confinement and total secrecy for forty-eight days, two thousand miles from the place of his initial arrest, without meaningful access to counsel, and without having appeared before any judicial officer for any reason.22 The Justice Department had 18. Brief for Petitioner, supra note 17, at 7. Today, his silence might not be considered sufficient to invoke his Fifth Amendment right to have an attorney present during a custodial interrogation. In Berghuis v. Thompkins, 130 S.Ct. 2250, 2253-2254 (2010), the Supreme Court held that the right must be invoked “unambiguously.” The Court held that Thompkins had not invoked his right by sitting “largely silent” through two hours and forty-five minutes of interrogation before giving an inculpatory response and that he had knowingly and freely waived this right when this silence was finally overcome and he chose to respond to his interrogators’ questions. 19. Exactly when Abel was permitted to consult with a lawyer is disputed. The affidavit of Abel’s attorney at his criminal trial, James B. Donovan, whose integrity and professionalism were praised throughout and after the trial, states that “[a]lthough he promptly requested counsel in McAllen, his request was denied and he was held incommunicado for five days, with daily questioning.” Affidavit of James B. Donovan, Transcript, supra note 4, at 24. Abel himself said that his request for counsel was denied on the morning of his arrival in McAllen and he was questioned from nine in the morning until midafternoon that day (a Saturday), followed by six hours of questioning on Sunday and again on Monday by two teams of FBI agents working “in relays.” On Tuesday, Abel averred that he gave his name (an alias) and was then allowed counsel for purposes of his deportation hearing, which was held that Thursday. Abel states that after he was found deportable he was then questioned daily by FBI agents for the next three weeks. He does not state whether his lawyer was present at these sessions, though that is doubtful given that his limited role in Abel’s deportation proceedings had concluded. Abel stated that he was “served . . . with a criminal warrant for [his] arrest” during his sixth week of secret detention. Affidavit of Rudolf Ivanovich Abel, Transcript, supra note 4, at 30-31, 33. The affidavit of Kevin T. Maroney, a special attorney from the Justice Department’s Internal Security Division, stated that Abel did not request an attorney for the first four days of his detention and disputed Abel’s characterization of the intensity of his initial interrogation. Affidavit of Kevin T. Maroney, Transcript, supra note 4, at 60-61. It should be noted, however, that Maroney did not dispute (or even reference) Abel’s claim to have been questioned by the FBI daily for three weeks after his deportation hearing was held and prior to both the issuance of a judicial warrant for his arrest and his indictment. 20. Russell Porter, Spy Suspect Fights Use of Seized Tools, N.Y. TIMES, Sept. 15, 1957, at 1. 21. Brief for Petitioner, supra note 17, at 8. Espionage: Artist in Brooklyn, TIME MAG., Aug. 19, 1957. 22. Brief for Petitioner, supra note 17, at 7-8. 09_KAHN_V17_FINAL_6-15-11.DOC (DO NOT DELETE) 6/15/2011 12:22 PM 268 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 5:263 used the immigration laws as a pretext to accomplish this secret arrest, which was otherwise impossible in our system of criminal justice. The resonance between Abel’s treatment and the seizure and extraordinary detention of suspected terrorists in the years after September 11, 2001, is striking. For example, U.S. citizen Jose Padilla was detained on a judicially authorized material witness warrant for thirty-three days in 2002.23 Ostensibly, the arrest was to secure his testimony for the ongoing grand jury investigation into the September 11th attacks, but in reality the arrest was preventive detention on suspicion that he was plotting a major terrorist attack himself. On the eve of a hearing about Padilla’s legal status (at which he would have been represented by counsel), the warrant was vacated at the government’s request.24 Padilla was transferred to military custody, where he was held as an enemy combatant for almost four years with no substantial contact with counsel. For the first six months, he was held without any judicial decision regarding the lawfulness of his detention.25 In March 2011, the Supreme Court heard the case of Abdullah Al-Kidd, another American who alleges that the federal material witness statute was used as a pretext to arrest, interrogate, and mistreat him on the basis of terrorism suspicions that were insufficient to satisfy the Fourth Amendment’s requirements for a lawful arrest.26 The Supreme Court (in an opinion handed down just as this article was going to press) declined to resolve the difficult issues presented by the allegations of pretext in the case.27 But even Padilla and Al-Kidd were not made to disappear in the way that Abel did. The material witness statute used to justify their detention at least required that a neutral magistrate authorize a warrant for their seizure and that they be brought to a court for a public hearing shortly after being 23. Padilla ex rel. Newman v. Bush, 233 F. Supp.2d 564, 571 (S.D.N.Y. 2002). 24. Id. at 572. 25. Id. at 571; Hanft v. Padilla, 546 U.S. 1084 (2006). Donna Newman was Padilla’s assigned counsel. For a careful study of her efforts on behalf of her client both in and out of the material witness statute framework, see LOUIS FISHER, THE CONSTITUTION AND 9/11: RECURRING THREATS TO AMERICA’S FREEDOMS 197-209 (2008). 26. Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), cert. granted, 131 S.Ct. 415. Oral argument was held on March 2, 2011. The material witness statute, 18 U.S.C. §3144, authorizes a judicial officer to issue a warrant for the arrest of a witness if “it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena.” The statute also contemplates judicial consideration of less intrusive means of securing the testimony of the witness. 27. Ashcroft v. al-Kidd, 563 U.S. __(2011). In a concurring opinion joined by Justices Ginsburg, Breyer, and Sotomayor, Justice Kennedy noted “the difficulty of these issues,” and observed that the Court’s holding left “unresolved whether the Government’s use of the Material Witness Statute in this case was lawful.” Ashcroft v. al-Kidd, No. 10-98 (U.S. May 31, 2011), slip op. at 1-2 (Kennedy, J., concurring). 09_KAHN_V17_FINAL_6-15-11.DOC (DO NOT DELETE ) 6/15/2011 12:22 PM 2011] THE CASE OF COLONEL ABEL 269 seized, a hearing at which they had the right to be represented by counsel.28 Abel was only provided counsel for the few hours consumed by his deportation hearing; the rest of his summer was spent in lawyer-less, secret detention and subject to frequent interrogation.29 Padilla’s detention also differed significantly from Abel’s in that it was announced almost immediately by the Attorney General, ironically enough, at a press conference in Moscow.30 After 9/11, transparency has not always been the default. In the immediate aftermath of the terrorist attacks, Chief Immigration Judge Michael Creppy ordered the closure of “special interest” immigration hearings that many subsequently suspected to have involved the same pretextual conduct evidenced in Abel’s case.31 In the words of Yogi Berra, was this déjà vu all over again? Who was this Colonel Abel, whose case would be argued twice before the United States Supreme Court? Who was his American lawyer, James Donovan? Why did he take this case, how did he argue it, and what resonance does the matter have for American criminal law and criminal procedure? Ideologically driven, international terrorists are today’s nearest analogue to Communist agents in the atmosphere of hyper-fear that was still so palpable in the shadow of the McCarthy era. What lessons can be learned from the case of Colonel Abel as the United States struggles to balance national security and justice in its pursuit of suspected terrorists? 28. 18 U.S.C. §3144. This statute incorporates by reference 18 U.S.C. §3142(f): “The hearing shall be held immediately upon the person’s first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of such person may not exceed five days . . . , and a continuance on motion of the attorney for the Government may not exceed three days. At the hearing, such person has the right to be represented by counsel, and, if financially unable to obtain adequate representation, to have counsel appointed.” 29. See supra note 19. 30. U.S. Arrests Man Allegedly Planning Attack, NewsHour, June 10, 2002, available at http://www.pbs.org/newshour/updates/dirtybomb_06-10-02.html. 31. Memorandum from Michael Creppy to all immigration judges and court supervisors, September 21, 2001, available at http://fl1.findlaw.com/news.findlaw. com/ hdocs/docs/aclu/creppy092101memo.pdf. A circuit split resulted that the Supreme Court declined to resolve. The Sixth Circuit held that the Creppy order violated the First Amendment. Detroit Free Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002). The Third Circuit, on the other hand, sustained Judge Creppy’s closure order by distinguishing immigration hearings from other judicial hearings with a greater tradition of openness. North Jersey Media Group v. Ashcroft, 308 F.3d 198 (3rd Cir. 2002), cert. denied, 538 U.S. 1056 (2003). The justification offered by the FBI for closed deportation hearings was very similar to the national security interest advanced in keeping Abel’s arrest a secret: “insight gleaned from open proceedings might alert vigilant terrorists to the United States’ investigative tactics and could easily betray what knowledge the government does-or does not-possess.” North Jersey Media Group, 308 F.3d at 200. 09_KAHN_V17_FINAL_6-15-11.DOC (DO NOT DELETE) 6/15/2011 12:22 PM 270 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 5:263 As already noted, one lesson is that the reluctance to pursue Abel through regular criminal justice processes was unnecessary and even potentially damaging to the Government’s national security interests. In the end, it was the evasion of general rules – because of the certainty of government officials that this case was an exceptional one – that required the Government to defend its actions in two separate oral arguments before the Supreme Court. Although the Court sustained the Government’s actions, it did so by a single vote in a weak judicial opinion that could easily have gone the other way. Had the United States followed normal procedure, Abel would still have been convicted, but without the need to justify this exceptionalism and risk the loss of its biggest catch yet in the Cold War. The Abel case is a fecund study worthy of book-length treatment.32 In this brief article, I will explore just three topics: the appointment of counsel; the defense’s investigation and cross-examination of witnesses for the prosecution; and the defense motion to suppress the evidence obtained through the tandem conduct of the FBI and the INS that midsummer’s morning. It was this motion that brought Abel’s case to the attention of the highest court in the land. FBI MUG SHOT OF RUDOLF ABEL33 I. WHO WAS COLONEL ABEL? But first, who was Colonel Abel? Even the most basic details of the life of a master Soviet spy are shrouded in obscurity. Rudolf Ivanovich 32. Indeed, it has been the subject of such treatment in the United States, JAMES B. DONOVAN, STRANGERS ON A BRIDGE: THE CASE OF COLONEL ABEL (1964) [hereinafter DONOVAN], and in the United Kingdom, VIN ARTHEY, LIKE FATHER LIKE SON: A DYNASTY OF SPIES (2004) [hereinafter ARTHEY]. With the exception of Donovan’s own diary-driven recollection of the case, no one has written a book focused on the legal issues presented by the case. 33. This FBI mug shot is available at Famous Cases & Criminals, FBI.GOV, http://www.fbi. gov/about-us/history/famous-cases/hollow-nickel/rudolph-ivanovich-abel- hollow-nickel-case/. 09_KAHN_V17_FINAL_6-15-11.DOC (DO NOT DELETE ) 6/15/2011 12:22 PM 2011] THE CASE OF COLONEL ABEL 271 Abel was born in 1903 as William August Fisher in what was then the outskirts of the city of Newcastle upon Tyne in northern England.34 He was the son of Heinrich Fischer, a well-educated metalworker born in Russia of German ancestry who would later flee Tsarist Russia to found the Newcastle branch of the Russian Social Democratic Workers’ Party and assist in the publication and distribution of the party organ, Iskra, while Vladimir Lenin was quartered in London.35 As a teenager, Abel moved from England to Moscow, where his father took a short turn on the Comintern’s UK desk before Lenin’s death made the life of an old Bolshevik a precarious one.36 Abel married and the couple was blessed with a daughter. Abel’s British citizenship meant a legitimate Western European passport, his Newcastle upbringing gave him native English fluency, and his wife and child in Moscow were excellent insurance against defection; this plus his worker’s credentials and internationalist upbringing were (to quote Humphrey Bogart quoting Shakespeare) the stuff that dreams are made of – that is, if the dreamer recruited for the Soviet clandestine services.37 After surviving the Stalinist purge and with a distinguished record in World War II (no mean feat, either one), Abel became an “illegal” KGB intelligence officer – i.e. one formally unassociated with the Soviet Embassy or other official mission – active in Oslo and London before he ran all Soviet espionage in North America for nine years.38 34. ARTHEY, supra note 32. Because Abel is the name by which Fisher was known during his trial, I use it here for consistency with most primary sources. His real identity was unknown until 1972, when an American journalist found both “Abel” and “Fisher” carved in his tombstone in Moscow’s Donskoi Cemetery. JOHN COSTELLO & OLEG TSAREV, DEADLY ILLUSIONS 372 (1993). It should be noted that some have questioned the integrity of this book due to the active role of the Russian foreign intelligence service in selecting its author and allowing him selective access to its records. CHRISTOPHER ANDREW & VASILI MITROKHIN, THE MITROKHIN ARCHIVE: THE KGB IN EUROPE AND THE WEST 26-27 (1999). To his credit, Costello is clear about this collaboration but does so while effusively thanking Vladimir Kryuchkov, the KGB’s last chairman and a plotter in the coup against Gorbachev. COSTELLO & TSAREV, supra, at vii. The “real” Rudolf Ivanovich Abel was actually a very close friend of Fisher and a fellow KGB officer. ARTHEY, supra note 32, at 114-116. Unbeknownst to Fisher, Abel had died shortly after Fisher left Moscow for what would be his last assignment. ARTHEY, supra note 32, at 226. The name had been used as the agreed means to signal Moscow that Fisher had been arrested, but its use in this way after the death of his friend apparently haunted Fisher. ARTHEY, supra note 32, at 226; ANDREW & MITROKHIN, supra, at 225. 35. ARTHEY, supra note 32, at 3, 11, 21-23. 36. Id. at xxxi, 66-68. 37. Sam Spade in The Maltese Falcon (1941); William Shakespeare, The Tempest, Act 4, scene 1, lines 156–158. 38. DONOVAN, supra note 32; ARTHEY, supra note 32, at 87-116, 163. He was apparently also active in France and Turkey. ARTHEY, supra note 32, at 124. Evidence at his trial established links of various strengths to Morris and Lona Cohen, a.k.a. Peter and Helen Kroger, arrested in Britain along with Gordon Lonsdale, and Helen Sobell, wife of 09_KAHN_V17_FINAL_6-15-11.DOC (DO NOT DELETE) 6/15/2011 12:22 PM 272 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 5:263 That all came crashing down with his arrest in Manhattan, secret interrogation in Texas, and trial in the U.S. District Court for the Eastern District of New York, which sits in Brooklyn. The trial required ten days, the prosecution called twenty-seven witnesses, and over one hundred exhibits were admitted into evidence.39 The prosecution’s case revolved around the testimony of Reino Hayhanen, Abel’s incompetent subordinate, who had secretly defected to the United States.40 Due to a surprising lapse by a spy as accomplished as Abel, Hayhanen had learned the location of Abel’s workplace in Brooklyn.41 It was also probably due to Hayhanen’s own incompetence that a local newsboy acquired a hollowed-out nickel containing an encrypted message to Hayhanen, physical evidence that figured prominently at trial.42 It was Hayhanen’s initial refusal to testify against his former superior officer that led the FBI to enlist the assistance of the INS in Abel’s arrest.43 Abel was caught surrounded by the tools of his trade, ample evidence to support espionage charges.44 Under the immigration statutes at that time, no judicial approval was necessary for federal executive agents to detain Abel and search his effects.45 But it was this pretextual use of administrative powers under the immigration laws – a sham in fact intended to pressure Abel to become a double agent or, failing that, to gather evidence for his criminal prosecution – that attracted the interest of the Supreme Court, not Abel’s notoriety.46 Morton Sobell, a co-defendant in the Rosenberg case. ROBERT J. LAMPHERE & TOM SCHACTMAN, THE FBI-KGB WAR: A SPECIAL AGENT’S STORY 274-278 (1986). Subsequent information suggests connections with American scientist Ted Hall, Soviet spy and defector Alexander Orlov, and the Rosenbergs. ANDREW & MITROKHIN, supra note 34, at 193-195; JOSEPH ALBRIGHT & MARCIA KUNSTEL, BOMBSHELL: THE SECRET STORY OF AMERICA’S UNKNOWN ATOMIC SPY CONSPIRACY, 196-97, 221-22, 244-253 (1997) (Cohens & Hall); EDWARD VAN DER RHOER, THE SHADOW NETWORK: ESPIONAGE AS AN INSTRUMENT OF SOVIET POLICY 160-161 (1983) (Rosenbergs). Notwithstanding these links, others have judged his career to have been a “pedestrian reality” that “achieved nothing of real significance.” ANDREW & MITROKHIN, supra note 34, at 229. 39. DONOVAN, supra note 32, at 245-246. 40. Espionage: Pudgy Finger Points, TIME MAG., Oct. 28, 1957. 41. DONOVAN, supra note 32, at 146; ARTHEY, supra note 32, at 208-210. 42. DONOVAN, supra note 32, at 185-86; LAMPHERE & SCHACTMAN, supra note 38, at 274. The newsboy found the nickel in 1953 and gave it to the local police, who sent it to the FBI. Robert Lamphere, the FBI specialist who examined the nickel and the cipher it contained, wrote a memo that (unsuccessfully) urged an immediate redeployment of manpower to search for an illegal Soviet intelligence officer in New York. LAMPHERE & SCHACTMAN, supra note 38, at 270-272. 43. Brief for the United States at 6, Abel v. U.S., 362 U.S. 217 (1958), No.2, 1958 WL 101553. 44. See supra note 10 and accompanying text. 45. See supra note 11. 46. Abel v. United States, 362 U.S. 217, 219-220 (1960) (“Of course, the nature of the case, the fact that it was a prosecution for espionage, has no bearing whatever upon the legal considerations relevant to the admissibility of evidence.”).