The Perilous Game of Trying Spies

By Michael S. Serrill

Balancing the claims of justice and secrecy

The decision seemed obvious. FBI agents said they had evidence that their Los Angeles colleague Richard Miller had turned over a bureau intelligence handbook to the Soviets. So Miller should be prosecuted, right? Well, in the world of espionage it is never that simple. For as long as there have been secret agents, officials have had to weigh two conflicting considerations: the importance of trying accused spies and the risk such trials pose to national security. In the view of intelligence agencies, courtroom disclosures can sometimes be as damaging as the original espionage. Says Joel Levine, a former federal prosecutor with spy-trial experience: "There's always a push-pull relationship between Government agencies, one desirous of prosecuting, one desirous of preserving intelligence."

The trial, scheduled for next month, of Richard Miller and his two Soviet contacts (all have pleaded not guilty) is another sign that prosecutors lately are winning the battle with intelligence officials. Currently there are twelve active U.S. spy prosecutions, the highest total in recent history. One of the most sensitive involves former Army Counterintelligence Officer Richard Craig Smith, who is accused of betraying six U.S. double agents to the Soviet Union. A prolonged debate was waged between the Justice Department and CIA and Pentagon intelligence experts over whether to bring Smith to trial. "Certain strong objections were registered," admits a Justice lawyer dryly. "Charging someone with espionage tells the world that the Soviet intelligence service has successfully penetrated."

Such concerns were once dominant. From 1966 to 1975 there were no successful spy prosecutions in the U.S. The Rockefeller Commission, impaneled to investigate intelligence abuses, discovered one of the reasons in 1975 when it unearthed a 21-year-old secret agreement under which the Justice Department gave the CIA discretion to conceal crimes by its own agents. President Gerald Ford abrogated that agreement in 1976. When the Carter Administration took over, Attorney General Griffin Bell also took a tough stance. "Neither the CIA nor the public at large is well served by hiding cases of successful spying," he later explained.

Since 1975, there have been 19 straight successful spy prosecutions. The new aggressiveness got its first hard test in 1977 after Christopher Boyce and Andrew Daulton Lee were arrested for giving U.S. satellite secrets to the Soviets. During the Boyce trial the CIA was so stingy with top-secret information that even the prosecution had trouble getting access to some of it. At one point, Assistant U.S. Attorney Levine had to fly from California to CIA headquarters in Langley, Va., to plead in person for a piece of evidence that the Company balked at divulging. The personal diplomacy worked. But, says Levine, "we had to walk gingerly to make sure we were not getting involved in information we didn't want compromised."

The CIA's worries were rekindled when Boyce threatened "graymail": the introduction of sensitive information in his testimony. That turned out to be an empty threat. The judge in the case convened private hearings to review secret documents the defense wanted to use; he declared them irrelevant. Such closed-door judicial reviews were institutionalized in 1980 when Congress passed the Classified Information Procedures Act, better known as the graymail statute. The act not only permits private evidentiary hearings but also allows a judge to prevent full disclosure of relevant classified documents at the trial by, for example, having them summarized--restrictions that some lawyers consider constitutionally suspect.

The intelligence community remains exceedingly uncomfortable about public trials in sensitive cases. In at least one instance, a CIA official secretly tried to talk a witness out of testifying. The CIA cooperated only reluctantly in the 1980 prosecution of David Barnett, once one of its own covert agents, charged with selling the U.S.S.R. secrets about U.S. intelligence operations in Indonesia. The agency unsuccessfully tried to bury the case by urging a sketchy indictment and a quick plea bargain. Having failed to get that, the CIA placed extraordinary burdens on the defense. Attorney Dennis Kolenda was required to work out of an empty office in the Justice Department's internal security section in Washington. None of the classified documents or his notes concerning those documents could be taken out of the office. The secretary to the internal-security chief typed his briefs and answered his phone. Kolenda will have no access to his file in the case until the year 2021. In the end, Barnett, convinced that he could not win at trial, pleaded guilty; he was sentenced to 18 years in prison.

There are numerous other obstacles thrown in the path of defense lawyers. One of Smith's lawyers was denied access to classified documents for weeks while he waited for his security clearance to come through. Another Smith lawyer, William Cummings, notes that he may never learn the identities of double agents Smith is accused of compromising, though Cummings concedes, "There is a lot I don't need to defend this case." The impact of secrecy pressures can extend to the press. In the Boyce case, the trial judge forbade reporters from taking notes in open court.

Doubtless some spies are still not tried for fear that public proceedings would reveal national secrets. But Justice Department attorneys are determined to continue their policy of vigorous prosecution when possible. "We don't go ahead recklessly. There is a good deal of pain attached," acknowledges a high-ranking Justice lawyer with knowledge of such decisions. "But you can't allow these people to walk the streets free in a society they have tried to undermine." The policy ultimately works to the intelligence community's benefit, he contends, since spies are more willing to cooperate with prosecutors when they "realize that the Government isn't horsing around, that we're ready, willing and able to go to the mat.'' --By Michael S. Serrill. Reported by Anne Constable/Washington

With reporting by Anne Constable