Behind Steven Spielberg’s spy thriller, Bridge of Spies, is one of the strangest cases ever decided by the U.S. Supreme Court. Take its very name: Rudolf Ivanovich Abel, also known as ‘Mark’ and also known as Martin Collins and Emil R. Goldfus, Petitioner, v. United States. The United States had convicted a Soviet spy, but was still not certain about his name. Historians still argue whether Abel was a brilliant master spy, or a mere administrator who was unable to recruit an effective network at all. “Here we are 58 years later, still wondering what went on,” Anthony Palermo, the only living lawyer who took part in Abel’s trial, told me.
Questions still surround the arrest, search, and detention that led to Abel’s conviction for espionage in 1957. In The Case of Colonel Abel, a gripping narrative of the case, Professor Jeffrey Kahn of Southern Methodist University writes that the FBI stalked Abel for days—that they knew exactly where he lived and could have easily performed an ordinary arrest, armed with arrest and search warrants. Palermo, who as a junior prosecutor prepared the agents involved for the trial, rejects that interpretation. The impetus for the arrest came from the Immigration and Naturalization Service, he told me in an email. “The Courts who considered the facts rejected the defense argument that this was a ‘pretextual’ arrest initiated or orchestrated by the FBI.”
Or take Justice Felix Frankfurter’s opinion, written for a five-justice majority, which solemnly said, “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 the evidence.”
The curious, in fact, would do better to start with Kahn’s article than with the opinion. In very brief (omitting, for example, the curious case of the newsboy who was sold a copy of The Brooklyn Eagle and got a hollow nickel filled with microfilm), here are the facts: A Soviet spy defected and fingered his American handler, code-named “Mark.” The bureau notified the Immigration and Naturalization Service (INS, which today is called Immigrations and Customs Enforcement), of the presence of an alien—deportable for the use of a false name. An INS official issued an “administrative arrest warrant”—no judge required—against the suspected spy.
FBI and INS agents went to the Latham Hotel in Manhattan, where “Mark” was living. While INS agents held back, the FBI agents sat him half-dressed on the bed and told him to cooperate with them or the INS would arrest him; meanwhile, INS conducted a brief search of the hotel room. The INS ordered him to pack his bags and come to INS headquarters. Before he left the Latham, Abel politely paid his bill. At that point, FBI agents were free to search his room. When they reached district headquarters, the INS searched his bags. The searches turned up an apparent coded message, phony identification papers in three names, a hollow pencil with 18 microfilms inside, and a cipher pad.
Formally, the issue before the court was whether the detention and the searches were a violation of the Fourth Amendment’s ban on “unreasonable” searches and seizures. But the real issue was what happened after the searches. From the INS detention center, Abel was hustled to a secure facility in McAllen, Texas, where for more than five weeks agents interrogated him day or night, seeking to convince him to go back into the field as a double agent for the U.S.
Abel gave them nothing. Finally they flew him to New York, and, with great fanfare, announced his arrest on charges of espionage.
The charges carried a possible penalty of death.
During his secret detention, Abel had asked for counsel and been denied. In open court, he requested that a panel of the New York Bar appoint a lawyer to defend him. (Palermo’s copy of the trial transcript notes Abel saying that he had contacted a lawyer named John Jacob Apt, but that “he informed me that he is unable because of prior commitments to take my case.” Apt was general counsel of the Communist Party USA.) The bar committee settled on James B. Donovan, the former general counsel of the Office of Strategic Services and a former Nuremberg prosecutor.
“Donovan,” Kahn reports, “was convinced that the state could lawfully conduct the warrantless arrest of Abel, hoping to turn him into a double agent for counterintelligence purposes, or it could prosecute him for the capital crime of espionage. But it could not do both.” Donovan argued that the FBI had plenty of time to get an arrest warrant and a search warrant. But the government wanted to grab Abel secretly; if its recruitment succeeded, his masters in Moscow would never know it had happened. So they used the INS—and its “administrative warrant”—as a way around the law.
Frankfurter, however, rejected Donovan’s interpretation. Abel’s arrest, he wrote, was merely an example of “rightful cooperation between two branches of a single Department of Justice.” The searches, then, were justified, and Abel’s conviction would stand.
In the principal dissent, Justice William Brennan, writing for himself, Chief Justice Earl Warren, and Justices Hugo Black and William O. Douglas, argued that a search of an individual’s property “on the authorization of one administrative official to another” should make the fruits of the search inadmissible in a criminal trial. Douglas, writing separately for himself and Black, dissented in a near-Scalian tone: “How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment! What a hindrance it is to work laboriously through constitutional procedures! How much easier to go to another official in the same department!”
Abel—an implacable enemy of the United States at the height of the nuclear standoff—came remarkably close to succeeding. Donovan fought gamely for his client’s Fourth Amendment rights; he also convinced the district judge to spare Abel’s life on the grounds that he might be useful in a swap later. (In the film this is depicted as taking place in an improper secret talk with the judge, but in reality the argument was made in open court.) That happened, and five years later, Rudolf Abel walked across the Glienicke Bridge between Potsdam and East Berlin, where he was met by Soviet intelligence.
Bridge of Spies is the best picture of a good lawyer I have ever seen. As Donovan, Tom Hanks is both restrained and implacable. Donovan fought hard for Abel, and the case cost him dearly. “In fact,” Kahn told me, the film “might even have undersold how much of a political risk he took.” Donovan ran for Senate in 1962 and was beaten badly.
Mark Rylance is chillingly likable as a determined foe of the United States ready to die for the Soviet cause. Palermo has tried to get word to the actor that “he absolutely nailed the man I saw in court day after day for four months.”
The real Abel was a resourceful rogue who gave his captors nothing—not even his real name. In fact, his claim to be “Abel” was a final coup; when the arrest was announced, the name signaled the Soviets that the secrets of their spy ring had not been compromised. As Kahn reports, the West only learned his real name—William August Fisher—when American journalists visited Moscow’s Donskoi Cemetery in 1972 and found both names carved on “Rudolf Abel’s” tombstone.