HE DEFENDED A SOVIET SPY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75-00001R000200030098-6
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 7
• Document Creation Date: November 11, 2016
• Document Release Date: January 5, 1999
• Sequence Number: 98
• Publication Date: October 1, 1960
• Content Type: MAGAZINE

CaO1ET OCTOBER 1960
Approv d For Release 1999/09/07 : CIA
CPYRGHT
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Attacked by cranks, self-styled patriots
and even fellow lawyers-
his family threatened-James B. Donovan
lived up to his professional principles
He defended a Soviet spy
CPYRGHT
A. M. on June 21, IUUt, three Y.B.I. agents, led by peeia
Agent Edward F. Gamber, pushed into Room 839 of the
Hotel Latham in New York City and surprised Col. Rudolf
Ivanovich Abel lying on top of the bed sheets. "Colonel," said
Gamber, "we have information concerning you, involving espi-
onage." ^ This was the dramatic beginning of a classic spy
story of our time. It also marked the first peacetime prosecution
by a civilian court of an alien spy, the highest-ranking, most
dangerous Soviet intelligence agent ever ca tured in the U. S.
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and military secrets, find a capable American defense lawyer
and receive a fair trial? "It wasn't so much the trial of Colonel
Abel, as it was the trial of the. American bar," said Justice Miles
McDonald of Brooklyn Supreme Court. "Not since John Adams
defended the British soldiers for the Boston Massacre in 1770,
would a defense lawyer take on a less popular client." ^ The tall,
balding, 55-year-old Russian asked the court, in flawless English,
to assign him counsel. The Brooklyn Bar Association began a
search for a capable lawyer. T <
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character and ability and that his time of his arrest. He had lived as
loyalty was beyond question," said "Emil R. Goldfus," a struggling art-
Raymond Reisler, Brooklyn Bar ist who painted scenes of Bowery
di
H
f
em
ng
rea
resident. "When someone hit upon life, and was fond o
Jim Donovan's name, we knew he ingway, Tolstoi and Victor Hugo.
was our man." "If the allegations are true," Don-
James B. Donovan, 44, a, stocky, ovan said, "it seems that instead of
white-haired New York trial lawyer, dealing with Americans who be-
was a Naval intelligence officer in trayed their country, Nye are dealing
World War II and a member of the with a. Russian citizen, in a quasi-
late Supreme Court Justice Robert military capacity, who has served his
H. Jackson's prosecution team at country on an extraordinarily dan-
the Nuremberg war crimes trials. gerous mission. As an American I
"When I told my wife I'd been would hope that my government
asked to defend a Red spy, she has similar men on similar missions
screamed," recalled Donovan. "I in many countries of the world."
talked to everyone I met about it. The fact that Donovan is a devout
Most said "Why should anyone de- Roman Catholic, a commander in
fend him?' " Jim Donovan would the Naval Reserve and an American
have to live with that question. Legion post commander, was never
"Every man is entitled to a fair discussed between the two men when
trial and the right of counsel," he they met for the first time.
begins. "Even a man coming here
to plan our destruction, if that's ROM THE START, we had no dif-
what it was, should get the best pos- Z` ferences," Donovan said. "I
sible defense lawyer." called him 'Rudolf' nd lie called
No authority could have forced me `Mr. Donovan.' He was an intel-
the lawyer to accept the assignment. lectual, a gentleman and he had a
After a day of deliberation, he de- fine sense of humor. I found him
cided to take on the case on one con- fascinating and, as a man, you
dition: that it be a public service. couldn't help but like him. He
Agent Abel, who had entered the looked like a schoolmaster and he
country illegally in 1948, was could easily have assumed the role.
charged nine years later with the He spoke English and five other laz-
capital crime of conspiracy to com- guages. He was an engineer, he.knew
mit espionage. photography, electronics, nuclear
In addition to hollowed-out coins physics and, of course, he posed suc-.
and other miniature containers for cessfully as an artist. He also played
carrying messages, F.B.I. agents the classical guitar and kidded me
found in the Russian's Brooklyn that Elvis Presley was no musician;
studio a short-wave radio, microfilm lie was simply a `strummer.' "
and maps of major U. S. cities. Cash It wasn't long before vindictive
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steady stream of crank letters and fantastic," he says. "I saw Abel a
threatening phone calls. Finally, hundred times in those months."
Donovan ordered the phone cut oll. At the end of each day, the lawyer
"I told the local precinct police set aside a half-hour for keeping a
we were being bothered," says Don- personal diary on the case. Much of
ovan, "but they couldn't monitor the it is devoted to Abel and a record of
phone simply because some drunks conversations the two men had,
wanted to call up and blasphemeinc which ranged over art, literature,
as a Commie-lover." book collecting and trial strategy.
If Donovan was prepared for the "This is a classic case," the lawyer
attacks from outside his profession, wrote one night, "and it demands a
he was unprepared for the taunts classic defense."
from inside the bar. "One day a law- "I was working against the Jus-
yer I knew said to me, `Here comes tice Department and the F.B.I.,"
the million-dollar Commie lawyer."' says Donovan. "I felt I couldn't af-
Without raising his voice, Dono- ford a single mistake, for it might
van replied, "Counselor, that re- cost the colonel his life. I had the
mark is as valid as most of your uneasy feeling that if this happened,
legal opinions." someone would point out that it was
"At a bar meeting," recalls Don- a former U. S. Naval intelligence
ovan, "I was asked by a fellow Cath- officer who sent a Russian intelli-
olic if my sense of guilt wasn't gence colonel to the electric chair."
overwhelming. These people should On Monday, October 14, 1957,
understand that for a lawyer to be- the testimony began in Federal
come deeply and personally in- Court, Brooklyn, before a jury of
volved is just vanity. It's an exalt- nine men and three women. The
geration of the importance of the grimy Gothic towers, which stand
individual lawyer's role. He doesn't like sentinels at the corners of the
determine the outcome of a case. 68-year-old building, looked across
You have a judge and jury for this." to 252 Fulton Street, where Abel
Jim Donovan was born in a coin- had quietly carried on espionage
fortable old residential section of the from his $35-a-month studio.
Bronx. His father was a prominent World-wide attention focused on
New York doctor. Today Donovan's the courtroom. Only the Soviet press
home is a 15-room duplex apartment had chosen to ignore the trial. Men-
-overlooking Prospect Park. The tion of it finally in Literaturnaya
lawyer is an omnivorous reader and Gazeta broke a five-month silence
a collector of rare books. and branded the case as a hoax and
Preparing for the trial, Donovan low-brow crime fiction concocted by
pushed his own practice-mostly in- F.B.I. Chief J. Edgar Hoover.
surance law-into the background. Abel took his seat at the defense
For three months he worked on table with Donovan and two young
Appro
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u~eis spent omit s~'I`NI.'1 enevoi e an nP30
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Fraiman. Brooklyn Federal Court
Judge Mortimer W. Byers, 80, and
since retired, called for order in the
court. Tension bristled. "People
seemed to be on the edge of their
seats waiting for a knockout," says
Donovan. "When I stood up to make
my first objection, I felt as if I were
all alone."
Donovan produced no witnesses;
and with the death penalty hanging
over him, Abel chose not to take the
stand and subject himself to intense
questioning by the prosecution.
Donovan ripped into the credibility
of the Government's two key wit-
nesses: Reino Hayhanen, the loud-
talking, hard-drinking Russian agent
who betrayed Abel, and Roy A.
Rhodes, a U. S. Army master ser-
geant, who confessed during the
trial that he had sold the Russians
information while serving at the
American Embassy in Moscow.
In his summation, Donovan paid
particular attention to why Abel
should receive a vigorous defense
and a fair trial. "Our principles are
engraved in the history and the law
of this land," he said. "If the free
world is not faithful to its own moral
code, there remains no society for
which others may hunger."
When the jury, after three and a
half hours, reached a verdict of guil-
ty, reporters rushed Abel. Had it
been a fair trial? The colonel's an-
swer was a penciled message, which
was signed "R. I. Abel" and read :
"I would like to take this oppor-
tunity of expressing my appreciation
of the way in which my court-ap-
for the tremendous amount of work
they put into their efforts on my
behalf and for the skill and ability
they havr shown in doing so."
The Christian Science Monitor
called the trial "proof of the matur-
ity of the system of due process of
law and its capabilities to deal on its
own terms with representatives of
the system which seeks to destroy it."
On November 15, Abel was
brought back to court for sentencing.
Before Judge Byers imposed a 30-
year prison term on the spy and
fined him $3,000, Donovan stepped
forward and made a dispassionate
plea that Abel's life be spared. He
emphasized that the death penalty
would eliminate the possibility of
Abel's ever "cooperating" and would
preclude any possibility of exchang-
ing him for 'an American of equal
rank, should a U. S. intelligence offi-
cer fall into Russian hands.
The logic of Donovan's plea was
recalled last May when the Russians
dramatically announced the capture
of the U-2 flier Francis Gary Powers.
On August 7, 1958, Abel's appeal
reached the U. S. Supreme Court.
Donovan claimed Abel's Constitu-
tional rights had been violated when
F.B.I. agents, along with Immigra-
tion and Naturalization Service
men, searched the colonel without a
warrant. Following the arrest, Abel
was secretly flown to an alien deten-
tion camp at McAllen, Texas. Six
weeks later, he was returned to
Brooklyn and indicted as a spy.
"The Fourth Amendment, which
says a man's home is his castle, was
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T'esTeZT i on e s reng i o a civi
alien detention writ. Similar writs,
called writs of assistance, were used
by the British in the 1760s to harass
Americans. John Adams said that
when James Otis, the great Boston
lawyer, denounced these writs,
`American independence was then
and there born.'
"This was the first time the US.
Supreme Court had to rule on secret
espionage by an alien and our whole
system, the maturity of American
justice, was being tested here,"
Donovan declared. "The Constitu-
tional issues have nothing to do
with whether Abel really was a
Soviet spy. At issue were the rights
of us all."
At dinner recently, a friend abused
the lawyer because he had spent hun-
dreds of hours on Abel's defense- -
time, the friend said, he could have
been devoting to something worth-
while, "like the legal problems of
American businessmen."
"Some night this fellow will be
arrested for drunken driving," says
Donovan. "He'll scream then for the
best lawyer in the county to defend
him and he'll demand every Consti-
tutional right to which he's entitled.
These people never think about
rights and privileges until they per-
sonally feel the need of them."
On February 24, 1959, Donovan
argued the appeal before the U. S.
Supreme Court. "As I walked up
the steps of the court," the lawyer
said, "I looked up at the inscription.
`Equal Justice Under Law.' `This is
why I'm here,' I said to myself. `This
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contentions o the justice Depart-
mcn.t, saying it had devised a scheme
whereby it could abuse deportation
power to seize evidence that could
be used later to indict a man on
criminal charges. The lawyer said
the Abel case posed a challenge:
civil liberties vs. internal security.
On March 28, 1960, the Supreme
Court upheld Abel's conviction. The
5-4 decision and the filing of two
dissenting opinions, by justice Wil-
liarn O. Douglas and William J.
Brennan Jr., indicated how deeply
divided the court was on the Con-
stitutional issue raised by the spy's
lawyer. Chief Justice Earl Warren
paid Donovan the highest praise. "I
think I can say that in my time on
this court no man has undertaken a
more arduous, more self-sacrificing
task," he said.
Donovan made one last try, ap-
pealing to the court for reargument.
This was refused on May 16 and,
after nearly three years, the case was
closed. Lawyers assert the defense
figuratively cost Donovan $250,000,
a fee he might have earned had Abel
been president of a U.S. business
corporation. As it was, the court
approved a fee of $10,000 and the
lawyer donated the money, sent
through East Germany by the spy's
wife, to Fordham University, Colum-
bia and Harvard Law Schools.
"I don't want to sound like a
martyr," says Donovan, "but the
whole thing turned out to be more
like a career than a. case. The fact
that Abel received due process every
step of the way was, I believe, ex-
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future may
be imperiled by
the serious
shortage of
these specialists-
the newest in
our educational
system
We need
20,000 guidance counselors
CPYRGHT
See -year-e girl ft4fteim it
classmate with a knife for flirting with her boy friend.
Approved Fo
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on applying for admission to Princeton. In Minneapolis, a
In Cleveland, a high school senior with a "C" average insists
and parents worry about their child because he has no idea
a shy youngster says, "I can't get along with the other kids,"
courses to take to prepare her for a career in advertising,
though ability tests show he could be a good engineer.
Elsewhere, a confused girl wants to know what high school
boy is about to quit school for a job in a supermarket al-
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