Treason: None dare call it nothing
by Bill Blum
"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}
The case of the United States vs. Theresa Squillacote and
her husband Kurt Stand ended on October 23, 1998 in Alexandria,
Virginia, with the jury finding the Washington, D.C. political
activist couple guilty of "conspiracy to commit espionage",
"attempted espionage", and related charges having to do with
classified documents. They were sentenced to 22 years and 19 years
in prison although they were not found guilty of -- nor were they
even 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
she 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 Defence 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. Romantic Revolutionary
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, 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 is 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
Written by William Blum, author of Killing Hope: U.S. Military
and CIA Interventions Since World War II
email: bblum6 [at] aol.com
return to beginning
return to homepage