"He betrayed his country" -- yes, perhaps he did, but who among us has not committed treason to something or someone more important than a country? In Philby's own eyes he was working for a shape of things to come from which his country would benefit."
               Graham Greene, on Kim Philby_{1}

     At an unheralded, yet historic, moment after World War Two, the American Republic was replaced by a National Security State. There thus began a subtle process in government hitherto known only in civil law -- "the exception that swallows the rule." Lawyers use the phrase to describe some anomaly in the law, an exception to a general rule or norm, that becomes so large or so widely used as virtually to nullify the rule itself. This principle had not previously been thought to apply to the requirements of the U.S. Constitution. Slowly but surely, however, "national security" has become such an exception.

     "Persons shall be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," except in cases of national security.

     "The accused shall enjoy the right to be informed of the nature and cause of the accusation," except in cases of national security.

     "Cruel and unusual punishments shall not be inflicted," except in cases of national security._{2}

     In October 1998, a jury in Alexandria, Virginia, found a Washington, D.C., political activist couple, Theresa Squillacote and Kurt Stand, guilty of "conspiracy to commit espionage", "attempted espionage", and related charges having to do with classified documents. The following February, Theresa was sentenced to 22 years in prison and Kurt 17, although they were not found guilty of -- nor had they even been charged with -- doing harm to a single creature on the face of the earth.

     The United States government excels at these charades, leaving scarcely anything to chance. Under William J. Clinton we have seen a steady drumbeat of legislation designed to give the FBI and other law enforcement agencies greater and still greater powers to climb deep inside the lives of individuals in The Land of the Free.

      As it invariably does, the super-secret court created by the Foreign Intelligence Surveillance Act (FISA)_{3} gave the FBI all the go-aheads it asked for in this case, thus making it all nice and "legal". The court was created in 1978 to authorize electronic searches for counterintelligence purposes, with its powers expanded in 1995 to authorize physical searches as well, all free from Fourth Amendment requirements of warrants and upon "probable cause".

      The FBI carried out an investigation and surveillance of Stand and Squillacote for more than two years, most of that period spent in listening in round the clock on the phone conversations of the couple ... conversations between the husband and wife, between the wife and her psychiatrist, between the husband and the wife's psychiatrist, between everyone and everyone, about everything; with Terry crying uncontrollably during one of her attacks of depression, and Kurt repeatedly trying to comfort her; played in the courtroom, on FBI tape, forever.

      During this time the FBI secretly entered the couple's home on several occasions, planting listening devices throughout, picking up all human sound. And while in the house, they pored through every drawer, every closet, every book, every photo, every piece of paper; downloading the computer's entire store of personal files. While on the outside, their trash was picked through, and there was surveillance, whenever feasible, including videos.

      And what had inspired such an indecent violation of the couple's privacy in the first place? After the unification of Germany, Squillacote's and Stand's name had been found on cards of the defunct East German intelligence service, the Stasi, cards purchased, along with vast amounts of other material, by the CIA, and still kept by the United States despite repeated requests from the German government for their return._{4} There were code names and real names, but no indication of any actual acts performed by either of them.

      Stand, 43, a "red-diaper baby", had worked in the American labor movement and the Democratic Socialists of America for many years. Squillacote, 40, active in the Committees of Correspondence (an offshoot of the fragmented U.S. Communist Party), is an attorney, who had had several government positions, the last one with the Pentagon in the Office of Acquisition Reform, dealing with the laws and regulations concerning Defense Department purchases. She had a Secret security clearance at the time she resigned in January 1997.

      The couple lived in the integrated Northeast Washington neighborhood of Brookland with their two children, aged 14 and 12, Karl and Rosa (after Karl Liebknecht and Rosa Luxemburg, the noted German socialist revolutionaries murdered by the state in 1919).

      After their extraordinarily prolonged and intimate investigation of the two, the FBI still had nothing to pin on them. It is highly questionable that the investigation should legally have been undertaken in the first place. The FISA law is written in the present tense, clearly referring to a current "foreign power or an agent of a foreign power" as the target of the proposed surveillance. Inasmuch as the foreign power in question, East Germany, ceased to exist five years before the application to surveil Stand and Squillacote was made, the FBI application to the FISA court ought to have been held invalid at its inception. As the Washington Post has noted, the FISA wiretaps "are intended under the law to respond to imminent threats, not to collect evidence for criminal cases."_{5}

      The indictment states that after the dissolution of East Germany, the defendants' German contact established an espionage relationship with the USSR and then Russia, and "one or more of the defendants planned" to meet with a Russian in 1992. Whether this was secretly told the FISA court to "satisfy" the requirement of a current foreign power as the target; i.e. Russia, in order to get the court's approval, will never be known. But in any event, the alleged planned meeting never took place and this "plan" constituted the entirety of the evidence supporting a "current" espionage operation. Inasmuch as the FBI application for the FISA warrant was made three years after the planned meeting, the use of the Russian connection to create a "current threat" carries no weight.

      A motion on the above grounds to exclude the evidence collected by the FBI was turned down by US District Court Judge Claude Hilton, who declared that it was not his job to "second guess" the FISA court. With the rarest of exceptions, when an American judge hears the mantra of "national security" invoked, his years in law school become but a dim memory.

The South African connection

      The FBI's search of the couple's computer had turned up a letter Squillacote had written to Ronnie Kasrils, South African deputy defense minister, who is also a leader of the South African Communist Party. The letter to Kasrils, written after reading his political memoir, was, except for brief opening and closing remarks, a duplicate of a paper she had written and passed around in a study group she belonged to in Washington. It was an analysis of the world political situation and the prospects for building socialism.

      The FBI also found, stuck in a book, a Christmas card that Kasrils had sent in reply, with a short note of thanks for her letter. Neither the letter nor the card even remotely hinted at any kind of espionage. Indeed, inasmuch as Squillacote had used a pseudonym and a Post Office Box and had made no mention of her position at the Pentagon, Kasrils could have no idea of who she was or what she might have access to.

      The FBI decided that the evidence they couldn't uncover would have to be created. From the voluminous detailed information compiled on Terry Squillacote, of the most intimate nature, the Bureau's team of psychologists put together a Behavioral Analysis Program (BAP), outlining her weaknesses and vulnerabilities. Now part of the permanent public record are comments like: She "has an intense dislike of her stepmother ... she is unkempt and has body odor ... ignores and neglects her children ... suffers from cramps and depression ... her mother was prone to depression; her sister committed suicide; and her brother is taking anti-depressants ... totally self-centered and impulsive. She has no concern for applying logic to thought or argument about long-term issues such as ethics, loyalty or most other moral reasoning."

     The BAP concluded that "it is most likely that she will be easily persuaded if an approach is made to her that plays more to her emotions." A scenario was developed "designed to exploit her narcissistic and histrionic characteristics." The report added that "She will likely grieve for about one year for her 'lost' (former) East German contact [with whom she had had a romantic relationship]. This is an important time period in which it is possible to take advantage of her emotional vulnerability."_{6} It appears to have worked as the FBI envisioned. A letter was sent to Terry supposedly from Kasrils offering a meeting between her and a member of "one of our special components" (read: intelligence service). Before long she passed this undercover FBI agent four documents: Defense Planning Guidance (FY 1996-2001) (Draft); Defense Planning Guidance (FY 1997-2001); Defense Planning Guidance Scenario Appendix (FY 1998-2003); and International Arms Trade Report September-October 1994.

      In court, defense attorneys endeavored valiantly to show that the bulk of the significant information in these documents was already in the public record -- congressional hearings, the New York Times, Jane's Defense Weekly, and elsewhere. One of the documents had actually been declassified before the trial began, yet it was still presented in court as evidence to condemn the defendants.

      The prosecution, for its part, presented two "experts": William H. McNair of the CIA, and Admiral Dennis Blair of the Pentagon, formerly the Associate Director of Central Intelligence for Military Support. The two men were straight out of Central Casting -- so arrogant, tightly-wound and doctrinaire as to make Captain Queeg look like a stoned flower child. Both insisted repeatedly that the fact that "secret" information was in the public domain did not change the fact that it was still a "secret"; that the "authoritative" version locked in a Pentagon file was more valuable to a potential enemy than what appeared in the media, even if the two versions were entirely identical.

     During one exchange, McNair was asked to read a passage aloud to show the similarity between the "secret" and public versions of one of the documents. He refused, on the grounds of ... yes, national security. At another point, Blair said that the release of the documents had caused serious damage. He was not challenged by the defense attorneys to explain in any way the nature of this damage. Except for a rare moment or two, the attorneys treated the two men with considerable deference, frequently apologizing to them for any possible misunderstanding, or imagined offense.

     Again and again, when they were obliged to give an answer that they thought might benefit the defense case, the two government witnesses quickly editorialized how this was not necessarily what it appeared to be. Neither the defense attorneys nor the judge ever cautioned either witness to limit himself to answering the question at hand.

     The two men testified under a legal doctrine that says such witnesses, if appropriately qualified, are "expert witnesses", and that what they declare in court is to be regarded as "expert evidence" or "expert testimony", due to their special knowledge, skill or experience in the subject about which they are to testify. And the opposing side -- in this case the defense -- when it knows it will lose a motion to disqualify the witnesses, states that it is in agreement as to their expertise. The fact that such witnesses can be -- and in this case were -- terminally biased seems to be completely lost in the process. If either of the "expert witnesses" had been part of the jury panel, the defense would undoubtedly have challenged their selection without a moment's hesitation.

     It remains obscure why Theresa Squillacote thought that such documents could be of any help to the government of South Africa, or to Cuba or Vietnam (she asked the FBI agent whether South Africa passed such information to those countries, and was assured that it did). It may also seem puzzling that she would accept unquestioningly that anyone from South African intelligence, or any intelligence service, would be politically progressive, simply because he told her an appropriate story about government oppression of his parents. But she has pointed out that her thinking was influenced by her experience with the East Germans. Some of them, she feels, were truly anti-fascist, socialist reformers, and internationalists.

      From this and other testimony at the trial, it appears that Squillacote had a highly romanticized view of revolution and her role in it. She had long fancied herself as an adventurous spy, with close ties to the East Germans during the 1980s, including the romantic connection. Part of her saw her job at the Pentagon, 1991-97, as a means to somehow further the cause, yet she received "highest outstanding performance" ratings on her job during three of those years, and a "reinventing government" award in 1996.

     Another apparent contradiction lies in the fact that after exchanging the totally innocuous letter and card with Kasrils, and then receiving his supposed letter to arrange a meeting with a South African intelligence agent, she was taped telling her brother, with great excitement: "I did it! I did it!" And then telling the undercover FBI agent: "I was kind of hoping he [Kasrils] would read between the lines and he did read between the lines. And that's why we're here." These inexplicable remarks undoubtedly hurt her entrapment defense seriously.

     There is no evidence, however, that she ever passed the Stasi any classified documents during the life of that organization; indeed, during that period she never held a position which gave her access to such material. She and her husband did, however, pass unclassified material to the East Germans, things they came across in the public domain that they thought would be of interest to them, including items on Jesse Jackson's presidential campaign and the 1984 re-election of Ronald Reagan.

     Kurt Stand, whose ties to East Germany went back to his German father, never had access to classified documents. The only overt acts he was charged with were having made photocopies of the Pentagon documents his wife obtained and having whited out the word "secret" from them.

     Why, the prosecution kept asking, would the two defendants have undertaken secret travel to meet their German handlers, received special espionage paraphernalia and training, used code names, etc., if all they were passing to the Stasi was unclassified material?

     Could the defense make the jury understand that during the cold war an American could not have open contact with East Germany without risking heavy-handed scrutiny and harassment from U.S. authorities? In the 1950s, Kurt's father, a refugee from Naziism, had been fired or blacklisted from several jobs in the United States because of his politics, and after the FBI informed at least one of his employers that he supported leftist causes.

     In her meetings with the phony South African, Terry appeared to be offering more of the same non-secret material. At their first meeting, in fact, she gave him an unclassified Defense Department document on the subject of "DOD Interaction with the Republic of South Africa."

     From numerous phone taps, and from things said by Terry to the agent, it was evident that she was looking to leave her Pentagon position in the very near future. The FBI knew that it had to make her take the fatal step as soon as possible. While she was of a mind to offer political analysis/policy material, the agent made it clear to her that he wanted more "practical" material, "information not otherwise available to the public"; "scoops" is a word he used. Thus it was that she took copies of the four documents from the Pentagon. In five previous years at that job, she had not done any such thing. And six months had elapsed since she had received the card from Kasrils and had not written back to him. The FBI had built a crime where none had existed before. Her lawyer called it "entrapment". The prosecution said that she was clearly "predisposed" to commit such an act.

The Third Man

     There had been a third person arrested in October 1997 -- James Clark, 50, who had in fact passed classified documents to the East Germans and had blabbed about it to an FBI agent pretending, in his case, to be a Russian intelligence agent. He entered into a plea agreement before the trial began. Clark had obtained the documents from two friends who worked at the State Department, telling them he needed such material about the Soviet Union and Eastern Europe for a graduate class he was taking. After Clark's plea agreement, his attorney stated that "We have spent hundreds of hours investigating ... and I've not spoken to one person who indicated that Jim did anything to harm the national defense."_{7}

     Clark's sentencing was delayed until he testified for the prosecution at the Squillacote/Stand trial. The three of them had met at the University of Wisconsin at Milwaukee in the early 1970s. Clark testified with full knowledge that the degree of severity of his sentence would be influenced by his testimony. Yet he stated that he had never conspired with them for any espionage purpose and knew of no classified material that either one had ever passed to the East Germans. In December 1998, Clark was sentenced to 12 years and seven months, the shortest prison term recommended under federal guidelines.

     Those in the national security establishment who play "the secrets game" for a living are usually much more upset by the act of -- the very idea of -- someone not taking the game seriously than in the disclosure of the secrets themselves, which, in their moments of self-honesty, they know to be trifling matters in the larger world of real politik. During the cold war, can it be imagined that there were secrets which, if known by the Soviet Union or the United States, could have tipped the balance of power and terror to any significant degree at all? Much of foreign policy secrecy is maintained only to avoid embarrassment over the exposure of unethical actions or public disinformation, not because of any danger to national security.

     And the harshness of the punishment for "treason" is proportional to the fear of the act.

     The two individuals who passed the documents to Clark have not been charged with a crime. One lost his security clearance and job, the other was placed on leave with pay. It's very difficult to explain the gulf between the government's treatment of these two and the treatment of Clark, Stand and Squillacote, except that the latter three are all self-described "communists". Did they fall victim to the US government's never-ending need for "enemies", particularly of the red-devil kind?

     In the end, the defense had to contend with America's state religion: patriotism, a phenomenon which has convinced many of the citizenry that "treason" is morally worse than murder or rape, even if it's a victimless crime. The jury lived in Northern Virginia, home of the CIA, the Pentagon, and a host of other national security institutions. Several of them had had, or still had, a security clearance. Almost certainly, the same held for people close to them. The chief prosecutor, in his opening remarks, made it a point to tell the jury that Terry and Kurt "hated the United States. They were dedicated communists."

     It was absolutely vital -- sine qua non -- for the defense attorneys to pierce this American frame of mind that comes with mother's milk, that penetrates every ganglion of the American nervous system. Patriotism, like religion, meets people's need for something greater to which their individual lives can be anchored. But the lawyers -- from a liberal corporate law firm, acting largely pro bono -- were not up to the task. It was a radical task -- nothing that law school prepares one for very well -- and they were not radicals. Instead of challenging the jury's mind set, they catered to it.

     Their unquestioning deference to the CIA and Pentagon witnesses, referred to above, is a case in point. Moreover, on at least two occasions, one of the defense attorneys, in citing a document, made it apologetically clear that he wasn't going to mention certain information in it, like numbers. He was thus reinforcing the mystique of "classified information", and "national security". And instead of flaunting their clients' social and political idealism -- their fighting for a better world -- as a wonderful thing, they apologized for it, telling the jury things like: "You may think they've acted stupid or foolish, and we may think so too, but it's not illegal to act stupid or foolish."

     And no mention that in a world of murderers, rapists, torturers, and robbers, Theresa Squillacote and Kurt Stand hadn't hurt anyone. The United States government has made sure that they will pay dearly for that.

     As will their young children, bringing to mind the plight of the Rosenberg children. Ironically, the children of Stand and Squillacote have received some aid from the Rosenberg Fund for Children, set up by Robert Meeropol, one of the sons of Julius and Ethel Rosenberg, to help the children of progressive parents who have been imprisoned or otherwise persecuted because of their politics.

NOTES

     1. From the Introduction to Kim Philby, My Silent War (Great Britain, 1969), p.7

     2. The preceding is adapted from an approach taken by Frank Mankiewicz in his book, Perfectly Clear (New York, 1973). The quoted words are from the Fourth, Sixth, and Eighth Amendments to the Constitution.

     3. See Philip Colangelo, "The Secret FISA Court: Rubber Stamping on Rights" in CovertAction Quarterly, Summer 1995, #53, pp.43-9

     4. Washington Post, Nov. 22, 1998, p. 2.

     5. Washington Post, October 31, 1998, p.8

     6. FBI document, National Security Division, "Behavioral Analysis Program Team Report", June 20, 1996

     7. Washington Post, June 4, 1998