The Odd Couple

Can the U.S. spy on spies?

The two defendants in the espionage trial were hardly the most dangerous of spies. Ronald Humphrey, 42, emerged in the testimony as a naive, lovelorn officer in the U.S. Information Agency whose lawyer insisted he never meant to harm the U.S. although he delivered Government documents to a foreign agent. David Truong, 32, a Vietnamese peace activist, said he simply wanted to help effect a rapprochement between the U.S. and his homeland.

The U.S. Government pursued its prosecution with immense care and zeal, for more was at stake than the fates of a pair of inept spies. The trial, which ended in the colonial courthouse in Alexandria, Va., last Friday, set the stage for the testing of a crucial constitutional question: whether a U.S. President can order wiretaps without a judicial warrant in cases involving national security.

Much of the evidence used in the case against Truong and Humphrey, accused of passing classified documents to Communist Viet Nam, was developed after bugging devices and a hidden camera revealed the conspiracy. Even though Congress is now considering a bill to ban warrantless surveillance, the Justice Department wanted to pursue its case in the courts. If Truong and Humphrey could be convicted and their conviction sustained on appeal, U.S. Presidents could continue to order the surveillance of suspected foreign espionage agents without prior court approval.

A year ago an intelligence review uncovered what one investigator called "one of the worst leaks in State Department history." Acting with Jimmy Carter's consent, Attorney General Griffin Bell ordered a tap to be placed on the phone of Truong, expatriate son of a South Vietnamese "peace candidate" who ran unsuccessfully in 1967. The FBI quickly traced one of Truong's contacts to the U.S.I.A. The suspect turned out to be Humphrey, a middle-ranking official who had served three years in Viet Nam and was desperately trying to extricate his Vietnamese mistress and her children from Saigon, where they remained after the Communist takeover in 1975. Moving in, the FBI borrowed a Vietnamese woman agent from the CIA to act as a courier between Truong and Vietnamese officials in Paris. It also planted a hidden TV camera in Humphrey's office. In June, the woman met Truong at a shopping center in Alexandria, where he handed her a grocery bag full of documents, some marked SECRET and CONFIDENTIAL.

Those papers, insisted the Government, contained vital data about national security. Defense lawyers answered that the sack held little more than "diplomatic chitchat" and assorted trivia. One cable marked SECRET was a published interview. Other sensitive items included copies of the Congressional Record and a book on fish protein concentrate. But some papers were not so banal. Humphrey admitted releasing confidential cables to Truong in the forlorn hope of freeing his mistress. The two defense lawyers cooperated throughout most of the trial, but at the end Humphrey's attorney dramatically turned on Truong, accusing him of being a professional spy who had duped Humphrey into his misdeeds.

The tactic failed to separate the pair in the eyes of the jury. After two days of deliberations, both men were found guilty on six of the seven counts of espionage, making them subject to life imprisonment. As for Humphrey's mistress, she was freed last July.

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