00;00;00;21 - 00;00;37;02

Jonathan Hafetz

Hi, I'm Jonathan Hafetz and welcome to Law on Film, a podcast that explores the rich connections between law and film. Law is critical to many films. Film, in turn, tells us a lot about the law. In each episode, we'll examine a film that's noteworthy from a legal perspective. What legal issues does the film explore? What does it get right about the law and what does it get wrong?

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Jonathan Hafetz

How was law important to understanding the film? And what does film teach us about the law and about the larger social and cultural context in which it operates? Our film today is Bridge of Spies, a 2015 Cold War legal and political thriller directed by Steven Spielberg. The film is based on the true story of American attorney James Donovan, who was assigned to represent Soviet spy Rudolf Abel after Abel was arrested at a hotel in New York and prosecuted for espionage.

00;01;06;19 - 00;01;31;10

Jonathan Hafetz

The story takes a turn when American pilot Francis Gary Powers is captured by the Russians after his plane is shot down over the Soviet Union while conducting a surveillance mission. Donovan is then tasked with negotiating a high stakes prisoner exchange, Abel, for powers that ultimately succeeds in a climactic scene on the galactic bridge that connected East Germany with Western controlled West Berlin in 1962.

00;01;31;12 - 00;01;51;21

Jonathan Hafetz

The film is not only highly entertaining, and also provides a window into important legal issues around national security, criminal and immigration law that still resonate today. Joining me to explore these issues are Lenny Benson, Distinguished Chair, an immigration and human rights law, and New York Law School who is one of the nation's foremost authorities and experts on immigration law.

00;01;51;23 - 00;02;11;26

Jonathan Hafetz

And Jeffrey Kahn, University Distinguished Professor at SMU Dedman School of Law, a leading scholar, unconstitutional and counterterrorism law. An expert on Russian law, and the author of a must read article on the Abel case published in the Journal of National Security Law and Policy. Welcome, Lenny and Jeff. Great to have you on the podcast.

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Lenni Benson

Thank you Jonathan.

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Jeffrey Kahn

Thank you Jonathan. Good to be here.

00;02;15;08 - 00;02;23;09

Jonathan Hafetz

So let's just step back and give a little context. Who were the people? What was the sort of background of the story of the spy Abel?

00;02;23;11 - 00;02;48;05

Jeffrey Kahn

Rudolf Abel is a name we use for a man whose name we actually didn't know throughout the entirety of these events. We later learned from a tombstone in Moscow that his given name at birth was Willie Fisher, and he was actually born in the north of England to parents who were Bolsheviks emigres from the East, and his father actually was an agitator who worked alongside Vladimir Lenin.

00;02;48;11 - 00;03;14;23

Jeffrey Kahn

So after the Russian Revolution, the family moved back to Moscow, and over the course of time that led to Rudolf Abel, also known as Willie Fischer, also known as Emma Gold Fox, also known as Mark, also known as many things to really have the perfect credentials for a spy in the Cold War. He had an honest to goodness legitimate British passport.

00;03;14;25 - 00;03;42;20

Jeffrey Kahn

He spoke the King's English. He was very fervently a supporter of the Soviet cause. And when he left the Soviet Union to become ultimately the spymaster for North America, he also had a credential that probably was not so pleasant, and that is, he had a wife and a daughter sitting in Moscow whom he knew if he ever wanted to see again, he had to work very, very carefully.

00;03;42;22 - 00;04;06;11

Jeffrey Kahn

James Britt Donovan, on the other hand, couldn't have been more different than Rudolf Alva. James Donovan was an outstanding New York attorney. He wasn't, focused on criminal law. He was, focused on civil litigation and insurance law, among other things. He was a rising star on the scene, on the New York legal scene. And he had a very distinguished career in government service.

00;04;06;12 - 00;04;34;09

Jeffrey Kahn

He had worked in the general counsel's office of the OSS, which was the predecessor of the Central Intelligence Agency. He had worked as a Nuremberg prosecutor alongside Colonel Robert Storey and others. I mentioned Colonel Storey because the building in which I sit is named after him. He was a former dean of SMU law school, and he probably had and lost because of this case, the opportunity for an outstanding political career.

00;04;34;10 - 00;04;46;17

Jeffrey Kahn

He could have been a New York senator, and I think that it's quite possible that this was the case, that he accepted it because he believed it was the right thing to do, but ultimately it cost him that future career.

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Jonathan Hafetz

That's interesting. In the film, there are a number of warnings that come from his partner at the film, play by Alan Alda and his wife, Amy Ryan, that, you know, he shouldn't take this case as a lot of pressure against him. He certainly received criticism and people were giving him sort of dirty looks on the subway and things like that.

00;05;03;08 - 00;05;07;04

Jonathan Hafetz

But he didn't get the sense that he might have gone to those political heights. It's quite interesting.

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Jeffrey Kahn

He was not the first person asked a lot of other attorneys in New York actually turned it down, saying they didn't want to be tarred by having Rudolf Abel as a client. But this is a man, I think, of genuine courage. And although you always have to be suspect of autobiographies and memoirs, if there's one book you ought to read, you really want to know more about the details of this case from his perspective.

00;05;29;15 - 00;05;56;00

Jeffrey Kahn

He actually kept a lawyer's diary, which he called strangers on a bridge, and it's a pretty good, detailed summary of his day to day workings. You can cross-check a lot of the facts. And frankly, I think somebody on Spielberg's team, or maybe the Coen brothers who helped with the screenplay, must have read this book because there are some excerpts from the dialog in the movie that are almost word for word from the book.

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Lenni Benson

I wanted to say something else about the time in the middle, though, that, you know, we're looking at a period in American history where not just this case, but throughout society, there was growing fear of communism. The US is in the post-World War Two moments of trying to stop the expansion of communism. And of course, you know, we sometimes just call it the McCarthy era, but it had many dimensions to it on both state government levels and federal levels.

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Lenni Benson

And so when we think about a lawyer being brave like Mr. Donovan, at this time, it's very common to be asked to take a loyalty oath. When I was a very young college student and I worked for the government of the state of Arizona, where I'm from. I still had to sign that loyalty oath. At the time. I went to law school, 1980 and 1983, it was still a crime in Arizona, officially on the books to teach anything written by Karl Marx or that espouse the Communist revolution.

00;06;57;28 - 00;07;21;26

Lenni Benson

So there are these echoes throughout. So we're going to talk about modern implications today. But I think we look at what Spielberg might have been trying to do in the film. He's trying to also introduce us a little bit to an awareness of how the emotion of politics, the fear of the atomic bomb, the scenes with Donovan's son learning to duck and cover.

00;07;21;28 - 00;07;40;22

Lenni Benson

It's trying to give us an understanding of the climate and tension, not so much to justify what the government did, but I think for the audience to be placed into the time and place. And I'll talk more about how that was particularly a dangerous moment for people living in the country who had not acquired U.S. citizenship.

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Jeffrey Kahn

Just to double down on Lenny's excellent point, ten days before the first day of the trial, that's when Sputnik was launched. And so the trial begins in mid-October 1957. On October 4th, 1957, Sputnik is launched into orbit, and every 90 minutes you could hear the beep, beep, beep of this Soviet satellite circling the planet. That was a very real, tangible manifestation of the anxiety that Lenny speaks of, even though the McCarthy era is winding down at this point, and it's been almost ten years since the first Soviet atomic explosion.

00;08;18;04 - 00;08;28;19

Jeffrey Kahn

There is a palpable fear of communism in the United States, and for a lawyer like Donovan, to accept this case was an enormous risk. And I think took substantial courage.

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Lenni Benson

And found a new to a government training firm for people working in security areas. Where Donovan is quoted about the case. And they used the hollow nickel case to explain how vigilant you must be when you're working for the Department of Defense or in a corporation that is part of the weapons manufacture, and that's made long after this case.

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Jonathan Hafetz

And just picking up on your points, you kind of see this tension in two ways. There's this idea that. Right, of course, that Abel should have a defense for the idea that American justice is on trial.

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Film Dialogue

Okay, here's the thing. The Soviet spy, they call it. We want you to defend him. Here's the indictment. I'm not sure I want to pick that up. The accused doesn't know any lawyers. A federal court tossed it into our lab. The our committee took a vote for the unanimous choice. It was important to us. It's important to our country, Jim, that this man is seen as getting a fair shake.

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Film Dialogue

American justice will be on trial. Well, of course, when you put it that way, it's an honor to be asked.

00;09;34;23 - 00;09;56;09

Jonathan Hafetz

At the same time, there's pressure on Donovan to kind of not litigate the case too zealously. Right. So they want to kind of showcase that Abel is going to get a fair trial. He's gonna have a defense, of course. But Donovan shouldn't be pushing too hard. And he's doing so. You know, it's, professional and personal sacrifice to himself and his family.

00;09;56;12 - 00;10;16;13

Film Dialogue

To him. He did a great job and fulfilled your mandate. And then some. But the man is a spy. The verdict is correct, and there's no reason to appeal. There's ample procedural reasons. We know the search is tainted, and Fourth Amendment issues will always weigh more heavily in an appellate form. We've got a good shot. The goddamn hell are you talking about?

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Film Dialogue

We were supposed to show he had a capable defense, which we did. Why are you citing the goddamn constitution, Tom, if you look me in the eye and tell me we don't have grounds for an appeal, I'll drop it. Right. I'm not saying that. You know what I'm saying?

00;10;29;18 - 00;10;54;15

Lenni Benson

Tom is saying there's a cost to this. That's right. A cost to both your family and your family. One of the things that actually surprises me a little bit, and I'm sure it had more to do with the State Department and CIA's desire to have a showcase trial exposing Soviet espionage was. One of the things that surprises me is that they just didn't use immigration law completely and ignore criminal law.

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Lenni Benson

Because when you are in an immigration proceeding, it's civil law. You're not entitled to appointed government defense. You can provide your own at your own expense or pro bono, wholly say for free, and that the government in many other situations, when they have a foreign national, they will simply use the great power the federal government has inside of civil immigration proceedings to narrow and control access to the foreign nationals through the use of detention, access to no discovery, no exchange of documents.

00;11;30;29 - 00;11;54;24

Lenni Benson

Secret evidence is possible in some kinds of removal hearings, where even the respondent can't know what is being presented against them. So the fact that they made this a espionage criminal trial to me indicated there were politics behind that as well, because they didn't need to do it if they just wanted to detain or to deport Colonel Abel.

00;11;54;27 - 00;12;24;25

Jeffrey Kahn

You know, I'm not sure I would call this a showcase trial. It's certainly true. I think that what the government really wanted was to be able to turn into a double agent. And so the use of the immigration law was very desirable because it kept Abel out of the public eye. If they had gone and obtained an arrest warrant and arrested him, they would have had to present him to a U.S. commissioner, which is the equivalent of a U.S. magistrate today.

00;12;24;25 - 00;13;01;20

Jeffrey Kahn

And there'd be a public arraignment, and that would just blow the cover off any attempt to use Abel as a double agent. What they really wanted was to turn him and use the Soviets web of spies, which, frankly, would, I think, be quite an embarrassment to the United States in the way that we read now that, part of the motivating factors for having the ex parte a Kirin hearing on the seventh floor of the Justice Department and completely out of the public eye, was in part to hide the embarrassment of not being able to patrol Long Island very well during World War Two.

00;13;01;23 - 00;13;24;05

Jeffrey Kahn

It was a bit of an embarrassment that Orville could operate for so long, so well in the United States. And so when they couldn't turn him after real serious effort, we will get to the eerie resonance with the post 911 cases in a short while when they couldn't turn him, then I think the interest turned towards some sort of deterrence.

00;13;24;09 - 00;13;31;16

Jeffrey Kahn

And so this was a capital case, and it was a capital case, which meant it had to go through a federal trial.

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Lenni Benson

To for audience capital case means death penalty.

00;13;34;24 - 00;13;55;01

Jeffrey Kahn

Yeah. He was accused of atomic espionage and at the time, I'm not quite sure I can think of a worse charge for someone in that day and age. So you can look at whether this is a fair trial or not in a couple of ways. And one is that, not only did he get court appointed counsel, but the counsel was appointed at his request.

00;13;55;01 - 00;14;16;20

Jeffrey Kahn

And this shows his intelligence and knowledge of the system. Although requested that the judge consult with the local bar association to pick a lawyer, not to have the judge pick a lawyer or to tell the government to go find a lawyer. It was the bar association that chose James Donovan. So that's the first point. Second point is this was a ten day trial.

00;14;16;22 - 00;14;57;10

Jeffrey Kahn

The prosecution called 27 witnesses. There were over 100 exhibits admitted into evidence. And so that shows, I think, a serious adversarial process. It also had a jury. Now, on the one hand, you could say that this shows that an adversarial jury trial and also work just fine, even in a top espionage case, even involving national security. On the other hand, the jury deliberated for only 3.5 hours, and some of the language and the judicial opinions generated by the case, was probably better left unsaid, and did evince a sort of strong thumb on the scales for national security considerations.

00;14;57;12 - 00;15;24;21

Jeffrey Kahn

On the other hand, some of the things depicted in the movie, like ex parte de conversations between James Donovan and Judge Byers, the district court trial judge in the case at his home. I can't find any evidence that that ever happened. And the insinuation that Donovan used personal connections to convince the judge not to apply the death penalty, but to, sentenced, able to over 30 years.

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Jeffrey Kahn

That did not happen. In fact, Donovan's advocacy for keeping Arbel in prison as an insurance policy, he needed to be traded in some future case. That was a conversation he had with Assistant Attorney General William Tompkins of the Internal Security Division of the Justice Department. On the eve of trial, and then again in the sentencing phase, after the trial.

00;15;47;03 - 00;15;51;11

Jeffrey Kahn

So a mixed record, you could say about whether it was a fair trial to.

00;15;51;11 - 00;16;12;18

Jonathan Hafetz

The government if Donovan was trying to, you know, he was making his pitch for Abel not to be executed, and instead be given a long sentence and held potentially for a trade if an American was captured as what happened with, Francisco Powers, did the government support that? The government attorney support that? Were they still pushing for capital sentence?

00;16;12;20 - 00;16;45;19

Jeffrey Kahn

My recollection is that the government recognized its utility. I don't recall there being very sort of single minded. We must have a capital sentence in this case. On the other hand, I think there was certainly an awareness that there was certain public pressure. The Rosenbergs had been executed for espionage. Now Donovan, again and again and again, pointed out that a significant difference between Rudolf Abel and the Rosenbergs was that Donovan perceived the Rosenbergs to be traitors to their country, whereas Abel was serving his country.

00;16;45;19 - 00;17;15;25

Jeffrey Kahn

So it was a difference between the work of a spy, honorable or dishonorable. Reasonable minds can differ, versus the work of traitors. And that was a significant difference. But I say it was a mixed record as well, because, you know, Donovan had long experience in US government circles. And for instance, when it came to and this doesn't appear in the movie, when it came to the cross-examination of a government witness, that would have led to the exposure of a lot of government intelligence information.

00;17;15;27 - 00;17;43;08

Jeffrey Kahn

Donovan was anxious and could be accused, I think, of pulling his punches a little bit. We didn't have the Classified Information Protection Act back then, and so as you read in Donovan's diary, there was a sort of quote unquote, gentlemen's agreement between the prosecution and the defense about just how deep to go in cross-examination of one of these government witnesses, Master Sergeant Rhodes, who had betrayed his country, when he was working in Moscow.

00;17;43;15 - 00;17;45;21

Jeffrey Kahn

So, again, a mixed record.

00;17;45;24 - 00;18;09;07

Jonathan Hafetz

Well, let's go back for a minute to the arrest, which sets up the movie and sets up some of the legal issues. He talked about the trial, and there's a there's a question of factual guilt was either a spy or not. But the central issues in the case, certainly in the film, are around actually the legal motions, the effort to suppress the evidence that was, Donovan argued, illegally seized.

00;18;09;07 - 00;18;17;04

Jonathan Hafetz

And that's the case. It goes to the Supreme Court. So what happens when Abel is arrested? And how does this set up some of the legal issues that are explored in the film?

00;18;17;06 - 00;18;40;23

Lenni Benson

Spielberg sets us up beautifully, I think, in the film to feel a sense of urgency. We are following these FBI agents that are apparently engaged in a day of surveillance. We're not told everything from the FBI agents point of view, and they lose him in the subway and he looks like a cool Mark Rylance. His performance in this film is extraordinary.

00;18;40;26 - 00;19;01;25

Lenni Benson

But he Mike Rylance playing Colonel Abel, he just is so calm in this hot, sweaty, dirty Brooklyn subway and they lose track of him. So then they're suddenly the cars are rushing, the agents are running. And if you've watched enough television shows in the United States, you think, oh, it's an exception to the warrant requirement because you're in pursuit or something.

00;19;01;25 - 00;19;15;08

Lenni Benson

The first year law student is going, gotta get into the apartment before the evidence is destroyed. But all of that is drama, I think. And so now we'll turn to our experts who will tell us what was really going on.

00;19;15;11 - 00;19;45;20

Jeffrey Kahn

Well, I agree, Mark Rylance. His performance is outstanding and his quiet confidence, and unflappable ability is really, I think, quite accurate. It's certainly what James Donovan remembers in his lawyer's diary. And it's a great film. And there's a lot that's historically accurate about this film, but not that opening scene. It couldn't be more incorrect. And it made all the difference in the world from the point of view of the actual legal motions, to suppress the evidence.

00;19;45;20 - 00;20;10;07

Jeffrey Kahn

So learning, of course, is absolutely correct. The movie does suggest a certain urgency, and it also suggests that all of the players are FBI agents. And if you look at the closing credits to the movie, you'll see that indeed, there are listed as FBI agents. But they weren't all FBI agents that day. And so I just need to step back a little bit to say, first of all, there was no urgency.

00;20;10;10 - 00;20;36;04

Jeffrey Kahn

The United States government had been surveilling, for at least a month prior to this arrest. They would lose him at times, and this caused great anxiety in the FBI. But then they pick up his trail again. And so that months long period of surveillance prior to the rest leads to a disagreement that I had with the last surviving member of the prosecution team, an outstanding lawyer in New York named Anthony Palermo.

00;20;36;07 - 00;21;01;11

Jeffrey Kahn

And he and I disagree about whether the US government could have obtained an arrest warrant on the information that they had. I think that they could have. He disagrees. Reasonable minds can differ. We can explore that disagreement later. But there weren't just FBI agents involved. In fact, there were a lot of I.n.s. agents involved. The Immigration and Naturalization Service, which at the time was a part of the Department of Justice.

00;21;01;14 - 00;21;29;24

Jeffrey Kahn

So Arbel had been moving around and he was living for a period of time in a hotel, the Hotel Lanham in Manhattan. And early in the morning of June 21st, midsummer day, 1957, two FBI agents knocked on his door, and when he went to open the latch, they pushed their way in. That's the language in the affidavit. There wasn't this breaking down of the door to find Abel with his teeth out in the bathroom.

00;21;29;24 - 00;21;51;19

Jeffrey Kahn

In fact, Abel was stark raving naked. It was so hot that night that he'd been lying in bed, sleeping in the nude, and had just gotten up to peek through the door. But the agents push in, and they sit him down on the bed. They call him by his, rank, Colonel, to let him know that the game is up and Abel just goes into total silence mode.

00;21;51;19 - 00;22;00;09

Jeffrey Kahn

He won't answer their questions. He won't even look at them. You just silent. He is the defendant that I think every criminal defense lawyer would love to have.

00;22;00;10 - 00;22;04;18

Lenni Benson

He never an immigration lawyer. You do not have to speak.

00;22;04;20 - 00;22;34;18

Jeffrey Kahn

Every lawyer. He knew his rights. And so he just sat there and the agents tried. There were two agents in the main agents, Gamboa and Blasco. But most significant, Lee and most obscured by the movie. What happened next was the FBI walked out signal to the INS agents waiting outside the door that they should go in, and they approached Abel and presented him with a administrative warrant for having violated the immigration laws.

00;22;34;18 - 00;22;59;00

Jeffrey Kahn

And then pursuant to that warrant, they searched him. And the room for what they said was evidence of alien. Now, the warrant was not signed by a magistrate judge. It wasn't signed by a federal judge. It was signed by a US commissioner. It was signed by an internal government official in the i.n.s.. And its advantage, as I mentioned before, was it allowed the government to keep Abloh's detention completely secret.

00;22;59;02 - 00;23;33;05

Jeffrey Kahn

He is then marched out of the room. The FBI then comes in and starts searching the room. After they go down to the hotel desk lobby to say, since the room is vacant, may we have your permission? Hotel manager to search the vacant room and the hotel manager agrees. Of course, it's been vacated by the FBI. And so there's another element to what would become the motion to suppress all of the evidence, and I should say, audible, for all his brilliance as a spy was caught in flagrante delicto that morning.

00;23;33;07 - 00;23;45;01

Jeffrey Kahn

All of the evidence of espionage was all around him. Cipher notes, hollowed out, wooden pads and pencils, all sorts of tools of the trade.

00;23;45;06 - 00;23;51;22

Lenni Benson

I just have to ask you, when they marched him out, did they put something on him, or was he a naked man going down the stairs of the hotel?

00;23;51;29 - 00;23;54;00

Jeffrey Kahn

No, no, no, he was dressed at that time.

00;23;54;07 - 00;23;57;08

Jonathan Hafetz

They let him get changed, right? They let him put on some clothes first. Right.

00;23;57;10 - 00;24;33;28

Jeffrey Kahn

Right. So he would have ordinarily, if he was an ordinary person, subject to an administrator warrant on an immigration matter, be brought to the nurse's offices on Columbus Circle in Manhattan. He may have gone there for a couple hours, but actually. And here's where things get eerily similar to post 911 cases. He's then brought to Newark Airport, where he's put on a government plane flown 13 hours and almost 1700 miles to McAllen, Texas, where he's held in secret detention for almost seven weeks.

00;24;34;01 - 00;25;00;15

Jeffrey Kahn

He's not afforded a lawyer except for purposes of a deportation hearing where he's found deportable, but he's subjected without a lawyer to conveyor belt interrogation by FBI agents intent on turning him into a double agent and finding out all the information that he knows. If that doesn't sound familiar to those of us who've been following post 911 counterterrorism cases, you haven't been paying attention.

00;25;00;18 - 00;25;24;11

Lenni Benson

This sounds very familiar to me from a case that I recently was involved in as a young man, about 16 years old, who had been released from immigration and custody to his mother's care in long Island. He was in the front yard, watering the lawn and when to clean clothes. Men came up to them, asked if he was his name or his his mother's name, because that's the name of the case.

00;25;24;13 - 00;26;03;21

Lenni Benson

Saravia. And he says, yes. And they took him into custody, held him for hours. His mother didn't know where he was. His mother called my office. We are trying to find out where he is. He is put on a plane for most of the day. They won't tell him where he's going. They take him to a children's psychiatric detention center where he's locked up as a security risk child, where he's put in a cell where he's monitored 24 hours and released out to go to the restroom or to eat, but always isolated from the other use that are in the facility.

00;26;03;23 - 00;26;25;15

Lenni Benson

It took me, calls to Washington, D.C. to Health and Human Services, which is the agency that detains nonimmigrant children. I make calls to the government counsel in the case because we were already representing him in an immigration case. He had never been in a criminal matter. He had been in a school altercation where someone accused him of stealing a bicycle.

00;26;25;18 - 00;27;08;28

Lenni Benson

But that was all there was that the school officials said, we think he might be in a gang because he wears blue and white. He has a Chicago Bulls cap and the bull sign. If you do the finger sign of what the bull headgear looks like, it could be a gang sign we eventually recruited. I was ready to go for the habeas corpus petition, but his custody having now then moved to Northern California, I recruited the northern chapter of the ACLU to file for him, and it became a settlement case about children that are rearrested for any reason by the immigration services and held through the agency of HHS, must give a child what they

00;27;08;28 - 00;27;40;11

Lenni Benson

call a bond hearing, even though there's no bond that never posted but a custody release hearing. And so that just happened a few years ago. Litigation is ongoing. The government just reached a new settlement. You can be snatched off the street from your mother's house when you've never committed a crime, and accused of being a security risk. So this is still alive in the light of day, even if it's not something as powerful as the government alleging you're a 911 terrorist.

00;27;40;14 - 00;28;06;24

Jeffrey Kahn

Bubble never turned that summer. You just sat there. And when the government finally realized he's just not going to give them any information and he's certainly not going to become a double agent. He's then returned to New York and brought into the public criminal justice system with arraignment on these capital death penalty charges of atomic espionage. And that was the basis of James Donovan's motion, he said.

00;28;06;26 - 00;28;24;21

Jeffrey Kahn

And he made this argument all the way through to the Supreme Court, where it was argued twice that the government had a fork in the road moment in that hotel Lanham, when they pushed in through the door, was DOJ going to act as a law enforcement agency, or was it going to act as a national security agency?

00;28;24;24 - 00;28;51;03

Jeffrey Kahn

If it was going to act as a law enforcement agency, then it needed to obtain a warrant to arrest and search, and it had to follow all the other requirements of a federal criminal prosecution. If the National Security Road was taken, then his clandestine seizure and his concealed attempt to turn him. If they didn't work out well, the government couldn't then just turn around and choose the other law enforcement path, the road not taken.

00;28;51;05 - 00;29;18;23

Jeffrey Kahn

And on that ground the evidence ought to be suppressed. So Donovan argued that the search of all those hotel room, and the use of that evidence in the criminal trial, was an unreasonable search and violation of the Fourth Amendment, because it was not a good faith effort to search for evidence of alien EJ. It was just pretext to have the INS there in the first place in order to avoid a judicial warrant and subsequent publicity.

00;29;18;25 - 00;29;29;03

Jeffrey Kahn

And that was the argument that Donovan made again and again and again, as he tried to suppress the evidence and then appeal the conviction. After trial.

00;29;29;05 - 00;29;59;07

Lenni Benson

That could interject some more history here in the time of Attorney General and Wilson administration, we had something called the Red scare raids of 1919 and 1920 and, 5000 people or more across the country in coordinated raids by a young J. Edgar Hoover, a very nascent FBI, US attorneys and immigration officials, which were then part of the Department of Labor, rounded up people at English language schools, working circle schools.

00;29;59;07 - 00;30;46;02

Lenni Benson

Those of you in New York, we know that today we ethical, culture, society, there were these societies for the betterment of people to educate them in mathematics or skills or trades or English or literacy. Horrific mass detentions of women, children and men on Deer Island, off the coast of city of Boston. And in a real act of bravery, the acting Secretary of Labor, a man named Lewis of Post, ruled that most of the arrests lacked any kind of sufficient, reasonable inquiry into whether or not these were anarchists or a threat to national security, whether these people that in any way were subjected to the expulsion laws of 1917 or 1918, and he quashed almost all

00;30;46;02 - 00;31;21;03

Lenni Benson

of the orders and removal, leading to impeachment hearings in the House of Representatives, which did not at all go to an article of impeachment being issued against him. Instead, it led to a severe criticism which may have been in part politically motivated against Attorney General Palmer, who at that point was one of the leading Democratic candidates for the next presidential race, and Palmer tried to justify some of what he had done as being necessary to the protection of the United States, in part because a bomb went off in front of his own home.

00;31;21;08 - 00;31;48;08

Lenni Benson

I mean, there were bits of flesh of a human being and pamphlets in front of his own yard, in 1919. So this massive argument, we have to round up the subversives. We have to stop this internal threat from the foreign. Louis post was incredibly brave. And his book, The Deportation Delirium of the 1920 news, is a fantastic read, and I highly recommend it.

00;31;48;08 - 00;32;04;12

Lenni Benson

He's one of my all time heroes. In their recent impeachment of Secretary Me works, a lot of people said this is the first time the cabinet officer has ever been impeached. Louis Post came close, and that's because he was standing up for the rights of the foreign born.

00;32;04;14 - 00;32;28;16

Jonathan Hafetz

Have. One theme that really comes across here is the way the government would try to use, in the case of Abel, immigration law, where there are weaker protections to carry out things that it can't do in a formal criminal proceeding, something that the government would return to, especially in the post 9/11 era with suspected terrorists through the label of enemy combatant or the seizing the material witness warrant.

00;32;28;16 - 00;32;55;24

Jonathan Hafetz

And as Lenny pointed out, it still happens with immigration. I think the film does a nice job, actually, of kind of isolating this cherry picking where the government tries to pick from the area of law that's helpful at a particular point. And Donovan makes this argument, you either have to classify Abel. You can to me, there's a criminal defendant, or you can treat him as a spy, national security spy, kind of a combatant in the war, if you will.

00;32;55;24 - 00;32;58;26

Jonathan Hafetz

But you can't do both.

00;32;58;28 - 00;33;23;14

Film Dialogue

Mr. Chief Justice, may it please the court. The Cold War is not just a phrase here. It's not just a figure of speech. Truly, a battle is being fought between two competing views of the world. I contend that Rudolf Ivanovich Abel, Colonel Abel, as he was called even by the men who arrested him, is our foe. In that battle.

00;33;23;17 - 00;33;48;07

Film Dialogue

He was treated as a combatant in that war until it no longer suited our government to so treat him accordingly. He was not given the protections we give our own citizens. He was subjected to treatment that, however appropriate for a suspected enemy, was not appropriate to a suspected criminal. I know this, but if the charge is true, he serves the foreign power, but he serves the faithful.

00;33;48;10 - 00;34;09;14

Film Dialogue

If he is a soldier in the opposing army, he is a good soldier. He has not fled the field of battle to save himself. He has refused to serve his captor. He has refused to betray his cause. He has refused to take the coward's way out. A coward must abandon his dignity before he abandons the field. The battle that Rudolf Abel will never do.

00;34;09;16 - 00;34;11;05

Film Dialogue

00;34;11;08 - 00;34;19;18

Jonathan Hafetz

And this issue is what's presented. Or one of the central issues presented to the Supreme Court, right. And what's a dispute in the court and becomes sort of the central part of the decision?

00;34;19;22 - 00;34;41;23

Jeffrey Kahn

It's really an interesting record. Both, the legal arguments made in the briefs and the arguments made, before Judge Byers, who, issued a written opinion denying the motion to suppress this evidence, unanimous opinion by the Second Circuit and then a very narrow 5 to 4 opinion by the Supreme Court. So Byers was very serious. Judge.

00;34;41;23 - 00;35;03;23

Jeffrey Kahn

He had been on the bench a long time and he knew how to insulate his record. And so one of the things that comes across, at least to a lawyer reading, is opinion denying the suppression motion is that he again and again points out that the evidence that he has seen and judged is, not showing any evidence of bad faith.

00;35;03;27 - 00;35;39;27

Jeffrey Kahn

And so there were really two parts to Donovan's argument. One was that the misuse of the i.n.s. as a tool for the Justice Department to try to go down both roads, that that was evidence of bad faith. Judge Byers really insulates that in the record by saying, all the evidence I've seen clearly show good faith on the part of these government officials, and you can trace that good faith assertion all the way through to the Supreme Court, where Justice Frankfurter, writing for the majority, says, well, questions of good faith or bad faith are just not open to us on this record based on what's happened below.

00;35;39;27 - 00;36;12;06

Jeffrey Kahn

So then the second part of Donovan's argument is that even if we can't show bad faith pretext, well, it was just categorically unreasonable to use an administrative tool in this way. And that gets to issues of pretext. So I teach constitutional law, and I can trace pretext arguments all the way back to McCulloch versus Maryland. And you can read this really beautiful language about how it would be the painful duty of the Supreme Court if it was ever presented with a case of pretext to strike it down as unconstitutional.

00;36;12;06 - 00;36;32;17

Jeffrey Kahn

But then you can find lots of examples in the record where a pretty good case of pretext is showing and it just doesn't happen. And so Justice Frankfurter writes a pretty formalistic opinion, in which he points out that, well, when the i.n.s. was in the room, they were following their rules and they did everything according to the book.

00;36;32;23 - 00;36;53;12

Jeffrey Kahn

And then the evidence that was later found, well, that was found subject to a different type of search. And, we've got to go case by case. So there's no real set formula here to say what's unreasonable. But then the dissenters, there was a very strong dissent, written by justice, Douglas and a very strong dissent written by Justice Brennan.

00;36;53;15 - 00;37;13;01

Jeffrey Kahn

And both of them take very pragmatic approaches to say, well, let's just look at what's actually going on here and how easy it would be under these circumstances to circumvent the protections of the Fourth Amendment. And if you'll permit me, Jonathan, there's just a short part of one of these dissents, that really brings this home. If I can just read it to you.

00;37;13;01 - 00;37;36;01

Jeffrey Kahn

This is from Justice Douglas, and he writes, the issue is not whether these FBI agents acted in bad faith. Of course they did not. The question is how far zeal may be permitted to carry officials bent on law enforcement. As Mr. Justice Brandeis once said, experience should teach us to be most on our guard, to protect liberty when the government's purposes are beneficent.

00;37;36;03 - 00;37;57;22

Jeffrey Kahn

The facts seem to me clearly do establish that the FBI agents wore the mask of i.n.s. to do what otherwise they could not have done. They did what they could do only if they had gone to a judicial officer, pursuant to the requirements of the Fourth Amendment, disclose their evidence and obtain the necessary warrant for the searches which they made.

00;37;57;24 - 00;38;20;26

Jeffrey Kahn

If the FBI agents had gone to a magistrate, any search warrant issued would be. Terms of the Fourth Amendment. Have to particularly describe the place to be searched and the things to be seized. 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.

00;38;20;29 - 00;38;44;09

Jeffrey Kahn

How much easier to go to another place on the same department? The administrative officer can give a warrant good for unlimited search, no more showing a probable cause to a magistrate, no more limitations on what may be searched and when. And each of those sentences is punctuated with an exclamation point. So the very different points of view, and it was a hard case for the Supreme Court.

00;38;44;10 - 00;39;11;13

Jeffrey Kahn

Even Justice Frankfurter, probably based on his own past experiences, writes this formalistic opinion, but then feels compelled to say, well, of course there would be exceptions to this. He wants to keep the door open now. That door was slammed shut by Justice Scalia in a unanimous opinion in the Wren case years later, saying that we simply don't look at any subjective intent or concerns.

00;39;11;18 - 00;39;31;09

Jeffrey Kahn

We just look at the objective basis in law to determine whether a search or a seizure or an arrest was unreasonable. But it's interesting to see the struggle, even at this moment, and eerily familiar to those who have been following post 911 counter-terror. Some cases where judges have wrestled with this difficult dilemma.

00;39;31;11 - 00;39;40;24

Jonathan Hafetz

The rank case from 1996 involved a traffic stop, and the idea was there was a racial background to the traffic stop. The traffic stop was used as pretext for something else.

00;39;40;27 - 00;40;02;10

Jeffrey Kahn

It's a fascinating case. It happened in Washington, D.C., and it involved some policemen who were in an unmarked car. The vice squad, if I recall correctly, and they just tailed a car that they were certain in their own minds but didn't have any concrete evidence to support their hunch that this was a car that was involved in drug transactions.

00;40;02;17 - 00;40;26;15

Jeffrey Kahn

They stopped the car on a pretextual traffic stop, and then, sure enough, they find some drugs. Now, what's interesting about the Rand case is that it referenced, Justice Scalia referenced the Albo case. He ran for Senate in dicta, noting that the other court regarded Donovan's argument as a claim of, quote, serious misconduct, but didn't think the record could support any finding of bad faith by the government.

00;40;26;15 - 00;40;54;17

Jeffrey Kahn

Cynthia Inez had followed its procedures regardless of what the FBI had done. And in the red case, one of the arguments I recall the attorneys made was that it was just so out of sync with DC police procedures and the D.C. police procedural manual to use an unmarked vice squad car in this way, that that showed an intent to do something other than stop the car for a traffic stop.

00;40;54;22 - 00;40;56;23

Jeffrey Kahn

And Justice Scalia just wasn't buying it.

00;40;56;25 - 00;41;23;10

Lenni Benson

Let me give me this back to your comment on Justice Frankfurter. You were talking about how he had to carefully cobble this decision when I noted the Red scare, earlier Frankfurter that a professor at Harvard and very active in civil liberties movement and one of the first non-citizens, if not the first to ever serve on the Supreme Court, he was derivative, naturalized, was born in Vienna when he immigrated the United States with his parents.

00;41;23;10 - 00;41;47;08

Lenni Benson

And then when his father and mother naturalized, he was derivative lead naturalized. And in his confirmation hearings, several members of Congress didn't know that he was qualified to sit on the Supreme Court since he was born outside the United States, but he had been a passionate critic of the government for those Red scare Palmer raids. And another point I wanted to raise was this case, the all case since the end of the 1950s.

00;41;47;08 - 00;42;17;29

Lenni Benson

In 1953, Frankfurter was in dissent in a case about the need for warrants and the need for judicial review of unlimited detention of communists. In a case called Carlson v Landon decided in 1953. It's a 5 to 4 decision. The four dissents are black, Frankfurter, Douglas, Bertram. Frankfurter. They're being very shrewd, I think, to his approach and philosophy is very specific about the scope of power.

00;42;17;29 - 00;42;46;18

Lenni Benson

Congress is actually delegated under the Internal Security Act, Internal Security Act of 1950 and says that the attorney general, him or herself, is the person who can make a decision about continued detention of someone who isn't a danger to the United States. It should not be this blanket. All members of the Communist Party can be detained without individualized assessment of their risk and harm to society.

00;42;46;21 - 00;43;20;15

Lenni Benson

In the dissent of Justice Black, he quotes the immigration officials of that time who say that the need that they have to arrest, even without any warrants, they don't always have the proper warrants. Members of the Communist Party across the United States, it's akin to we are not going to release a deadly germ into the country that to allow these communists, even if all they're doing is political activity or education activity, to speak about their philosophy of communism would be a danger to the nation.

00;43;20;18 - 00;43;41;18

Lenni Benson

And so in this period of the 50s and even into the 60s, many non-citizens lived under severe controls as to their liberty that they might be released on a bail, but they had to check in once a week or twice a month with the local I.n.s. officials. They had to report who they were speaking with. Where did they work, how do they earn their living?

00;43;41;20 - 00;44;08;16

Lenni Benson

And this was a really frightening time for these non-citizens who wanted to be engaged in political activity, something most authors and people don't actually always know, too, is people will just shrug their shoulders and go, well, they should become citizens. Well, Congress had close that door saying that if you ever had been a member of the Communist Party, even if the Communist Party had expelled you from membership, you could not naturalize.

00;44;08;23 - 00;44;38;23

Lenni Benson

We still have some vestiges of that today in our modern immigration law. Our government is fairly generous with waivers of inadmissibility. If you have been a member of the Communist Party, if you can argue you were a member of a Communist party under duress or granting a temporary waiver if you're coming as a foreign student. But these immigration laws are thicker and encrusted and waiting on the books for any time.

00;44;38;23 - 00;45;05;00

Lenni Benson

A government official wants to target a population and your discussion of pretexts now is very much the argument challengers made about Mr. Trump's so-called Muslim ban. His initial proclamation the first days that he's in office. In 2017, after his election in 2016, he issued a very poorly worded executive order that had to be rewritten by professionals to withstand constitutional muster.

00;45;05;03 - 00;45;31;10

Lenni Benson

The Ninth Circuit had struck it down, saying that he was using a provision of the immigration law as a pretext for unjustified, expansive use of the national security, race and racial and religious animus. The Supreme Court, taking the case of, I think, poorly developed, record expedited treatment rules, at least the majority that they will not entertain that argument of pretext.

00;45;31;10 - 00;46;05;26

Lenni Benson

And since there is a waiver possibility ground of inadmissibility, the government can exercise that discretion fairly. And they do leave open the possibility that later litigation could show that there was racial or religious animus, and there was some litigation successful, not in striking down the president's authority to issue such a wide ranging, religiously based ban. But there was some litigation that did succeed that some of the people who had been refused admission, it was solely based on their religious identification.

00;46;05;28 - 00;46;13;17

Lenni Benson

I can't help but watch this film and see the echoes and footprints of the case pounding into reality today.

00;46;13;20 - 00;46;44;10

Jeffrey Kahn

Let me give you not just an echo, but a huge shout for what you just said about pretext. And then I'll reference another case that doesn't involve immigration law. So one of the strongest pieces of evidence that James Donovan presented, that the immigration authority was used as a pretext, here was an admission to the press actually bragging to the press of an IRS commissioner named swing, who said, we knew exactly who Abu was when we picked him up and we would not have done so, but for the request of the FBI.

00;46;44;10 - 00;47;20;14

Jeffrey Kahn

And even this wasn't enough to sway the courts. Now, Abbott says that although he was pushed around a little bit, he was never physically abused during his incommunicado disappearance in McAllen, Texas, or subsequently. And that's an important point to make. Not everybody has had that same experience, and a case I'd like to connect this one to is a case from, some years ago called Ashcroft versus Abbasi, which involved the Metropolitan Detention Center in Brooklyn, where a number of individuals immediately after nine over 11 were rounded up.

00;47;20;17 - 00;47;52;23

Jeffrey Kahn

Immigration violations or alleged immigration violations that were subjected by their own evidence and arguments in testimony to horrific abuse in the Metropolitan Detention Center in Brooklyn. So much so that a lawsuit was brought, made its way to the Supreme Court. Unfortunately, didn't meet with success there. Oh, but here's the interesting point. The case was argued in the Supreme Court by Rachel Meeropol, who's a very distinguished human rights lawyer, and her grandpa were Julius and Ethel Rosenberg.

00;47;53;00 - 00;48;13;24

Jeffrey Kahn

Julius and other Rosenberg, of course, were executed for atomic espionage. And, there is reason to believe that there are connections between the Rosenbergs and Rudolf Abel. And so here you can you can really have a very tangible link, both with regard to immigration pretext and with regard to the personalities involved in these cases.

00;48;13;27 - 00;48;35;16

Lenni Benson

I do want to say that Rachel Meeropol and her colleagues at the center for Constitutional Rights and Alex Reinhart, it teaches at Cardozo, did amazing work on behalf of many of these people. And the government did offer a lot of confidential settlements to many of the people who were detained and abused. Most of them were removed from the United States, many of them voluntarily.

00;48;35;17 - 00;49;02;04

Lenni Benson

They had overstayed visas, and they were more than happy to leave the United States. But they won substantial monetary damages, notwithstanding the horrible legal result in the case and for the law students listing it. Which is a case we know about the standard in a civil litigation about what do you have to allege to have a plausible claim for recovery?

00;49;02;06 - 00;49;32;10

Lenni Benson

Is one of the parties that was part of this same kind of apprehension and round up of anyone who spoke Arabic or appeared to be from a muslim nation who is in our U.S. custody. No one of that group was criminally convicted. These were all civil law violations, overstay or failure to maintain your address record immigration laws full of traps for the unwary or the people who do not know about the way the law can be such a stickler.

00;49;32;12 - 00;49;54;14

Jeffrey Kahn

If I could just get one case that isn't involving immigration to show how pretexts can work in other circumstances, there was a man whose name would be familiar to many, Jose Padilla, who was seized in 2002 on a material witness warrant in Chicago sent to New York, ostensibly to be a material witness for the grand jury investigation into the 9/11 attacks.

00;49;54;14 - 00;50;35;18

Jeffrey Kahn

But that was just a pretext. John Ashcroft, Attorney General John Ashcroft himself announced via satellite link from Moscow, ironically enough, that Jose Padilla was suspected of plotting a dirty radioactive bomb attack, possibly in Chicago, and that's why he was seized at O'Hare airport. And then, once he's brought to New York on a material witness warrant on the eve of a hearing before then District Court Judge Michael Mukasey, Padilla is made to disappear into military custody, and several years are spent trying to properly use the habeas statutes to find out what's happening to Jose Padilla, held incommunicado without a lawyer.

00;50;35;20 - 00;50;58;28

Jeffrey Kahn

When the case is finally transferred back into the jurisdiction of the Justice Department, he is then subsequently brought to, criminal case in the 11th Circuit. And there's no mention of a radioactive dirty bomb at all. But there is an example of, I think, quite clear pretextual use of the material witness statute in a post 911 counterterrorism case.

00;50;59;01 - 00;51;20;28

Jonathan Hafetz

A good one and important context also that one other case, we do have a pretext, which, Jeff, you describe in your article puts 911 cases on a case of a kid who was an American citizen, another use of the material witness warrant. And he was detained for long periods subject to abusive conditions. His case goes to the Supreme Court, gets you to Ashcroft, as well as, line agents.

00;51;20;28 - 00;51;46;26

Jonathan Hafetz

And the suit against Ashcroft is dismissed. Supreme court says a suit can't go forward because of Ashcroft's immunity. But our kid on remand is able to get some favorable settlements for some of the FBI agents. And it's interesting because although, you can't really argue pretext after Rand Jeff is you explained our kid was able to argue that the FBI or the federal agents misled the judge in obtaining the warrant for reckless submission of false information.

00;51;47;01 - 00;52;03;29

Jeffrey Kahn

And this is something, if I recall correctly, the Justice Ginsburg points out in one of the concurrence that, just how flagrant, you know, it wasn't a one way first class ticket out of the country. It was a round trip coach ticket and all sorts of other extraordinary, misstatements.

00;52;04;01 - 00;52;21;06

Jonathan Hafetz

The one Supreme Court decision, one of the Supreme Court decisions the film mentions is a case called B Hopkins from 1886, and it's describing this question were raised in discussion of the question of what rights a non-citizen would have against an illegal search.

00;52;21;08 - 00;52;38;05

Film Dialogue

And I show you the warrant. What? Yeah. Explain this to me. There was a warrant. There was a warrant, a civil detention, right, for the rest of an alien. But there was no search warrant for suspicion of criminal activity. So the search and the evidence, that is the fruit of that search, that's all tainted and shouldn't be admitted.

00;52;38;07 - 00;53;00;14

Film Dialogue

What protections does he do? The man is not. The man is. What is Rudolf Ivanovich Abel? He is a Soviet citizen. He's not an American. 1886 year Glo V Hopkins. The court held that even aliens in that case Chinese immigrants, could not be held to answer for a crime without due process of law, including any alien that entered the country illegally.

00;53;00;16 - 00;53;21;09

Film Dialogue

The Department of Justice has his first allegiance to the United States. I don't see how an alien, if he's here illegally, how he suffered deprivation of rights, rights as well an American rights as one can so that we're in a battle for civilization. This Russian spy came here to threaten our way of life.

00;53;21;11 - 00;53;34;21

Jonathan Hafetz

This case involved non-citizens, Chinese Americans. It's a famous equal protection law case that's known to many lawyers and law students. What did you make of the film citation to you? Well.

00;53;34;23 - 00;54;07;06

Lenni Benson

I was going to give it a B-minus, because I always tell my students, if you're going to name a case in your exam, answer you have anonymous close. But exams often in law school. Be sure you have the right case name. So the concept you're describing in the right case name would have been a case called one wing, in which Congress had said if a Chinese national enters the United States in violation of the Chinese exclusion laws or overstays any permission that they had, they can be sentenced to hard labor.

00;54;07;09 - 00;54;32;13

Lenni Benson

And the Supreme Court rejected that scene. Can't use the civil procedures of enforcing the Chinese exclusion and deportation laws to send someone to criminal punishment. They are person under the Constitution and therefore entitled to the Fourth Amendment, Sixth Amendment, Eighth Amendment protections, whatever they may be. So one wing should have been the case. Perhaps that, Mr. Donovan said.

00;54;32;13 - 00;54;36;10

Lenni Benson

And, Jeffrey, I know you've reviewed the records. Maybe you want to talk more about that.

00;54;36;16 - 00;55;04;05

Jeffrey Kahn

Sure. If history matters, then I'd give this an F, but I'll try to rehabilitate the student because I like the film and I like the director. So Donovan in the movie cites the case during an in chambers meeting with the prosecutor, and District Court Judge Byers, and he moves to suppress, the unlawfully obtained evidence that we've been discussing and cites you quo for the proposition that the due Process clause protects even non-citizens unlawfully in the United States.

00;55;04;12 - 00;55;37;17

Jeffrey Kahn

Byers, at least in the movie version of Byers, denies the motion with a snide comment that isn't even an American. But in real life, it was never cited by Donovan in his brief to the Supreme Court. Indeed, neither the Supreme Court nor the Second Circuit, nor the District court ever mentioned the case. The obvious reason why the case wasn't relevant is that Ekwo concerned an administrative action by the city of San Francisco that implicated the 14th Amendment, but in this case, it's the Fifth Amendment that's relevant because the FBI was the state actor.

00;55;37;20 - 00;56;00;19

Jeffrey Kahn

Now, beyond that quibbling, there are other reasons why equal was found guilty of violating a city ordinance against operating an unlicensed wooden laundry. He was jailed for defaulting on a $10 fine. Now, law students learn the case as an equal protection issue. A law that, well, is fair on its face was applied, quote, with an evil eye and an unequal hand.

00;56;00;21 - 00;56;21;18

Jeffrey Kahn

The court did pause to note in the opinion that, quote, the 14th amendment to the Constitution is not confined to the protection of citizens, but to do that, it then cited a treaty with China, as well as the text of the Constitution and various federal statutes. So as important as this proposition was, it's not the central issue in the case.

00;56;21;20 - 00;56;47;04

Jeffrey Kahn

Ironically, though, the case could have been much more useful for a different proposition, the one that Donovan actually argued. He said the immigration law was used pretextual to accomplish with the anions what the FBI could not do, or probably more likely didn't want to do arrest Arbel and bring him to a public arraignment. Now, you quote can be used to stand for the proposition that motivation matters.

00;56;47;07 - 00;57;15;07

Jeffrey Kahn

Pretext matters. That how even a valid law is administered can reveal unlawful purposes and effects of its administration. And that is a violation. Perhaps not just of equal protection, but also of due process. Now, in 1957, that door was still open. Justice Frankfurter pushed it closed in his arbol decision, but with a little crack left open, just in the case it was slammed shut by Justice Scalia in the rent case.

00;57;15;10 - 00;57;42;06

Lenni Benson

Another case I thought about when I watched this film, and this idea of selective use of immigration authority in the late 1980s, the federal government then called I.n.s. under the division of the Department of Justice, arrested eight Palestinian people, who were attending UCLA. Some are graduate students, some undergrads. The FBI broke into their dorm rooms in their home four in the morning.

00;57;42;09 - 00;58;12;13

Lenni Benson

Again, it's unclear if there were warrants. They were originally charged with being advocates of world communism, as advocates began to represent and defend these Palestinian people who were raising money for the Popular Front for the Liberation of Palestine, the government dropped those charges. Alleged technical violations of immigration law failure to register your address, failure to maintain a full force load against six temporary residents.

00;58;12;13 - 00;58;53;25

Lenni Benson

They were foreign students, the two permanent residents. They charged them then with advocating the killing of government officers or the destruction of property because by raising money for the Popular Front for the Liberation of Palestine, they're saying this is equating to advocating violence or death. This litigation went on for many, many years. The creative lawyers decided to try to stop the deportation machine by going into federal court and seeking an injunction and an argument of First Amendment protection and selective enforcement, saying this is targeting these Palestinian people for and popular advocacy for liberation of Palestine.

00;58;53;28 - 00;59;31;21

Lenni Benson

And they want they wanted the district court level. They won an injunction. They won many years later. They had to fight for years and years in the Ninth Circuit. And while all that litigation was going on, Congress largely in reaction to the bombing of the Oklahoma Federal building in Oklahoma City, that horrible crime where many, many people died, including children and a daycare center in the federal building, we didn't know that was domestic terrorism at the time Congress passed the illegal immigration reform and immigrant response Ability Act, sometimes called IRA, IRA, and the Antiterrorism and Effective Death Penalty Act.

00;59;31;24 - 00;59;54;19

Lenni Benson

Very close to that same period. We didn't know that this was domestic terrorism. So it strengthened and and broadened the power of the federal government to charge subversive activity any age terrorism mandates detention. Unlike the old case where I was talking about, there was a right to a bond to be released, individualized determination of whether you were a risk to national security.

00;59;54;19 - 01;00;47;05

Lenni Benson

Congress now, in section 236 of the DNA now mandates detention. And that's been litigated. And unfortunately, the Supreme Court majority has not governed it or controlled it. But of these people, this particular case is called Reno versus American Arab Anti-Discrimination Committee. In 1999, Justice Scalia shuts the door to the litigation strategy, saying that in 1996, Congress had created a gatekeeping provision of the immigration law, which basically strips jurisdiction of a lower court and the only time you can challenge constitutional violations or in theory, selective prosecution or First Amendment violations, is after you're finally ordered removed in a judicial proceeding to challenge the immigration determination that went before you.

01;00;47;05 - 01;01;23;08

Lenni Benson

If the grounds of which you're being charged are subject to judicial review and in other provisions of the Immigration and Nationality Act, there are whole categories of people who are not eligible for any judicial review of their detention, any judicial review of their order of removal. I don't think the American public is very aware of this, and it's become normalized for images on television and in film to show incarceration of foreign nationals, to use the phrase illegal, alien or illegal entry as an excuse to characterize them as criminals.

01;01;23;08 - 01;01;49;02

Lenni Benson

When we're using civil administrative law, there's very few categories of law that allows civil detention. Mental health is one, and the Supreme Court has upheld some civil detention for those who are pedophiles. But in those other two examples, mental health and pedophilia, you have a right to appointed counsel. We have a constant right to judicial review of the need for ongoing detention.

01;01;49;02 - 01;02;13;02

Lenni Benson

Whereas in immigration law we have people that are basically detained for years and years and have no right to free counsel. You know, I just don't think it's very visible to the American public. Every day, more than 50,000 people are in immigration detention. The vast majority of whom are there because they arrived at the border and sought asylum at an airport and sought asylum or were apprehended near the border.

01;02;13;02 - 01;02;34;24

Lenni Benson

We're not talking about cases of people engaged in criminal conduct or national security, and you can look at the published data of how often the government is even charging national security. The 3.6 million cases pending in the immigration courts, there's maybe less than 20 that have anything to do with national security allegations.

01;02;34;27 - 01;02;52;19

Jonathan Hafetz

Yeah. It's important to point out or underscore that in the film we're talking about someone who is a Soviet spy. But in fact, as we've built up this vast system of immigration detention and those type of national security cases are very few, and it's applied against basically regular people who are, in most cases, coming here to work and improve their lives.

01;02;52;22 - 01;03;28;17

Jeffrey Kahn

You know, it seems to me that if a broad lesson is to be drawn, it's that cutting corners, as certain particular emergencies arise or particularly important cases appear, cutting corners is just never a good idea. We ought to have confidence in and courage to use our existing procedures. Had a warrant been obtained through proper channels to arrest all, there wouldn't have been the need for this very close five four judicial opinion, and we wouldn't be having this discussion.

01;03;28;17 - 01;03;47;28

Jeffrey Kahn

Of course we wouldn't have this movie either. But we see this again and again in the post 911 context. The very existence of Guantanamo is an extraordinarily expensive example of cutting corners when using existing procedures would have been a much better solution.

01;03;48;01 - 01;04;01;25

Lenni Benson

Yeah, I commend everybody. Listen to a prior episode of The Mauritanian on this podcast. Line film, in which you will hear the story of a man detained wrongly in Guantanamo who is at nine years.

01;04;01;27 - 01;04;22;02

Jonathan Hafetz

Yeah, I mean, he was detained overall for about 15 years, partly in Guantanamo, partly in secret jails. Mohamedou Salahi, but exactly a good example of cutting corners and not following the rulebook, as James Donovan, played by Tom Hanks, puts it in the movie, what makes us Americans well, from different places, it's the rulebook, the Constitution.

01;04;22;04 - 01;04;44;13

Film Dialogue

Okay, well, listen, I understand attorney client privilege. I understand all the legal gamesmanship. And I understand that's how you make a living. But I'm talking to you about something else. The security of your country. And I'm sorry if the way I put it offends you, but we need to know what Abel is telling you. You understand me, Donovan?

01;04;44;16 - 01;05;17;24

Film Dialogue

We need to know. Don't go boy Scout on me. We don't have a rulebook here. Your agent often? Yeah. German extraction. Yeah. So, onions, doc? Irish. Both sides. Motherfucker. I'm Irish, you're German. But what makes us both Americans? Just one thing. One on one. The rulebook. We call it the Constitution. And we agree to the rules. And that's what makes us Americans.

01;05;17;26 - 01;05;24;14

Film Dialogue

It's all. It makes us Americans. So don't tell me there's no rule book. And don't not at me like that, you son of a bitch.

01;05;24;16 - 01;05;53;13

Lenni Benson

I guess what I was thinking about the film, the second half of the film, where we have Hanks being this diplomat without portfolio and being told to secretly negotiate the spy swap, but led spy swap with Mr. Powers and Colonel Abel. I got that part of the film less effective, and I think it almost goes into melodrama or almost like bad comedy.

01;05;53;16 - 01;06;33;24

Lenni Benson

And while the some of the tension with the building of the wall and the closing of East Berlin society was quite good overall, I don't know if Spielberg was attempting to portray both societies as wrong, and cold blooded and merciless when it comes to the war, but I felt like he was truncating so much of what was happening in eastern Germany and how much was controlled by Soviet Union, and how much controlled by the eastern government itself, how much the East government people might have been a victim of, the superpower of Russia than the Soviet Union?

01;06;34;01 - 01;06;55;08

Lenni Benson

I'm not sure. I just found that part of the film a little bit more didactic and maybe a little less overall effective. Maybe he didn't want to make powers less empathetic by making his detention so horrific, and that evil portrayal of these cold blooded diplomats on the eastern side.

01;06;55;11 - 01;07;20;11

Jeffrey Kahn

Certainly the second half of the movie is even less significant. In Donovan's own lawyer's diary, strangers on a bridge. Now, just in temporal terms, Francis Gary Powers was shot down over what was then called Sverdlovsk and was now called Yekaterinburg. Then in the Soviet Union, when his U-2 spy plane was shot down. That happened on May 1st, 1960.

01;07;20;18 - 01;07;46;27

Jeffrey Kahn

So that's, almost two and a half years after the sentencing, Rudolf Abel in November of 1957, and the exchange for Francis Gary Powers on the Atlantic Bridge doesn't happen until early February of 1962. So this is, I guess, maybe a difficult thing for a filmmaker to portray. There's an inherent drama in the courtroom, at least in an American adversarial process.

01;07;46;29 - 01;08;12;00

Jeffrey Kahn

That probably isn't there quite so much in back and forth diplomatic, negotiations, even if you're doing the, negotiation in East Berlin, a lot of time is passing. So at this point, Arbel is in prison. He's actually physically located in Georgia. And so maybe there's a little, more difficulty in portraying all that from my perspective and maybe the perspective of this podcast.

01;08;12;00 - 01;08;34;00

Jeffrey Kahn

It was also just a little less interesting, to me, because, we weren't talking about law. We weren't seeing, legal issues developed in human lives. Now, there was, another person, as you know, if you've seen the film, who was also traded, and that was Frederick Pryor, a Yale graduate student who was arrested and held for about six months in East Germany.

01;08;34;01 - 01;08;57;06

Jeffrey Kahn

He went on to become a rather distinguished professor of economics at Swarthmore College. I think he died, a few years ago. And he's on record as saying that there were some liberties and licenses taken with his portrayal in the film. He wasn't a tremendous fan, I think it's fair to say. But maybe that's where Spielberg's dramatic interest in presenting the story kind of takes over.

01;08;57;06 - 01;08;59;18

Jeffrey Kahn

And there's just a little less to say.

01;08;59;20 - 01;09;03;16

Lenni Benson

Do you think the Russian trial of powers is accurate?

01;09;03;18 - 01;09;38;18

Jeffrey Kahn

I haven't studied his particular trial, but, you know, it's an entirely different system. If there's tremendous drama in the, U.S. adversarial system, that drama is just sucked out of what you could call the continental European inquisitorial system, which is mainly based on a case file, a dialog in Russian. And the purpose of the court is to verify the contents of the case file so that the idea is not that sufficient truth will come out from the adversarial smashing together of opposing sides in a case.

01;09;38;20 - 01;10;03;10

Jeffrey Kahn

The idea is that the search for objective truth is just too important to be left to the parties. And so it's the state's investigator that is going to conduct the investigation. And for a defense attorney to start doing his or her own investigation is almost akin to, you know, interfering with the judicial process. So there's a lot less drama, there's a lot less drama, even in the arc detector of a Soviet courtroom.

01;10;03;13 - 01;10;38;07

Jeffrey Kahn

If it's not in the case file, it's just not in the world, you could say. And so I can't say if his particular trial was fair in the sense that it hewed to the requirements of the Soviet Criminal Procedure Code. I think it's easy to say that it was unfair and that there was quite clearly a predetermined conclusion and a variety of protections that, sadly, a lot of Americans take for granted protections that are both written into the text of our Constitution and are embedded in our concept of separation of powers, are just simply absent from any sort of Soviet procedure.

01;10;38;10 - 01;10;59;05

Jonathan Hafetz

On the continental plane. A good movie, recent movie, anatomy of a fall, which I covered in an earlier episode, breaks down a French criminal investigation I think was a lot of drama built in. I'm not a Russian law expert, but my suspicion, Jeff is yours, that with the case of Frances Gary Powers, it was a predetermined outcome and there wasn't much drama in the legal case.

01;10;59;05 - 01;11;14;19

Jonathan Hafetz

The drama, for what it's worth, was or whatever it was, was in the negotiation or the political diplomacy that's in the sort of second half of the movie, like some of the kind of interesting dynamics between the Soviet interests and the East German interests, which weren't necessarily totally aligned.

01;11;14;21 - 01;11;58;23

Jeffrey Kahn

Certainly for those transactional lawyers or future lawyers out there seeing Donovan's negotiating skills displayed was certainly exciting. But there's a very good reason why there's no Soviet Atticus Finch and there's a very good reason why there is no Russian film equivalent of 12 Angry Men, other than the Russian remake of 12 Angry Men and that there is this inherent drama to an adversarial court proceeding, especially with a jury, that you just don't get in an inquisitorial system, not to say the inquisitorial system is necessarily worse or offers less justice, just a different way of doing it, and certainly doesn't lend itself to the same drama.

01;11;58;25 - 01;12;23;01

Lenni Benson

You know, I feel like maybe if we're looking at it from a dramaturge point of view, from the Coen brothers writing the script and Spielberg's film, maybe this explains in part, why he added that probably fictitious scene of the X party conversation with Judge Byers, and tried to make buyers look prejudiced to balance out the US viewer's reaction to the Soviet trial.

01;12;23;03 - 01;12;30;08

Lenni Benson

Maybe the filmmakers were trying to say both systems had flaws, you know, like trying to be a little bit evenhanded. There.

01;12;30;10 - 01;12;52;07

Film Dialogue

Well, thank you for seeing me. I just wanted to give you my $0.02 on the sentencing, and I thought maybe I should for you at home. That's not all of my points are narrowly legal. Yeah, well, it's that kind of case. I wasn't too scratchy during the trial, but it's exactly what you say. Nothing about this is narrowly legal.

01;12;52;10 - 01;13;19;26

Film Dialogue

There are bigger issues, sir. I think it could be considered in the best interests of the United States that Abel remain alive. Why? I'm not saying I made up my mind, but if he was going to cooperate, work with the government, he would have done it already. True. But the issue here. Excuse me. You can't say it's in the best interest of the United States that he spend the rest of his days in a prison cell.

01;13;19;28 - 01;13;45;11

Film Dialogue

How is this the national interest, not the incarceration itself? It is possible that in the foreseeable future, an American of equivalent rank might be captured by Soviet Russia. We might want to have someone to trade. Wow, that sounds like spinning. What if you could do that till the cows come home? My business buddies. I'm in insurance, and there's nothing implausible about this one.

01;13;45;17 - 01;14;01;26

Film Dialogue

It's entirely the realm of what could happen. It's the kind of probability that people buy insurance for. If we send this guy to his death, we leave ourselves wide open, no policy in our back pocket for the day. The storm comes by speech.

01;14;01;28 - 01;14;37;01

Jeffrey Kahn

It's true that every system has its flaws, but I wish Spielberg hadn't done that because I think that, us citizens and people in the United States really take for granted, especially our federal judiciary. But our judiciary is a whole nothing like that. X part of conversation happened, as far as I can understand, from the record and from buyers reputation, it's hard to imagine or donovans that it would have happened, and to suggest that that sort of thing would take place and would influence a judge's really casting unfair aspersions on a system and an institution that we disparage at great risk.

01;14;37;04 - 01;14;58;13

Jeffrey Kahn

In most cases, most of the time, I think the vast majority of cases, you have very careful judges doing very careful professional work. And this is, I think, one of the most incorruptible judiciaries conceived. And to suggest that sort of thing, especially without any evidence, I think, is frankly a little bit dangerous.

01;14;58;15 - 01;15;19;06

Jonathan Hafetz

There was a scene between Donovan and the CIA officer, the one who later accompanies him to Berlin, where he tries to. It's over at a bar, and he tries to get Donovan to tell him a little bit about what his client was saying. Was that fictitious? That one seems a little, maybe more in the realm of possibility.

01;15;19;09 - 01;15;47;15

Jeffrey Kahn

You know, Donovan made very clear to all that he took his professional role very seriously. But he also said, I'm a commissioned naval officer in the Naval Reserve, and I take my duty and my to my country and my patriotism very seriously. Likewise, I took his sense of patriotism very seriously. Although never told Donovan his real name never acknowledged being a spy, although both of them interacted with each other.

01;15;47;15 - 01;16;06;16

Jeffrey Kahn

With that silent assumption, just very pregnant in the air. I don't recall reading anything like that in Donovan's diary, but if something like that did happen, based on what I recall from his diary and from what I've learned of the man, I would expect that sort of push back, leave me alone to do my job.

01;16;06;19 - 01;16;26;22

Jonathan Hafetz

It's also interesting that Donovan, when he's, you know, talking to the agents, I think it's either the Soviet or the East German agents. He's concerned about what might happen to Abel after he goes back. Makes it very clear to them that Abel never time that he was a loyal Soviet citizen. There's some degree of respect for that. So what happens later?

01;16;26;22 - 01;16;30;19

Jonathan Hafetz

What is the aftermath for Donovan, for Abel and for powers?

01;16;30;22 - 01;16;49;09

Jeffrey Kahn

You know that conversation that Donovan has in the film with Secretary Shishkin? You'll recall that, Shishkin says to him, well, in essence, of course, you would say that whether it's true or not true. And so there is this anxiety, I think, that Donovan had about what would happen to Abel. I think it was a very legitimate anxiety.

01;16;49;11 - 01;17;22;00

Jeffrey Kahn

Abel returned to Moscow. He was never put back in the field again. He, was left as sort of a more or less desk ornament. He was trotted out on occasion for new graduates in the service, but he was never given any serious responsibilities again. And actually, died in, November of 1971, I think a much more shrunken and disappointed and frustrated figure, at least from what we can tell from the research that's been done about him.

01;17;22;00 - 01;17;41;14

Jeffrey Kahn

And there are a couple of biographies now, a very good one, for instance, by a scholar named Vin R3. So Abel is never put back out into the field. He's kind of an ornament, riding a desk in Moscow. Donovan died in January 1970. He never got that political career that he may very well hungered after.

01;17;41;17 - 01;18;10;12

Jeffrey Kahn

I believe he lost a Senate race to Jacob Javits. He did, however, continue to work for the US government in unofficial capacities. One of his singular achievements was to obtain the release of over 9000 men, women and children. After the Bay of pigs fiasco in Cuba, he became the head of one of the school systems in the New York City area, but as I say, died of a heart attack, I believe.

01;18;10;12 - 01;18;34;09

Jeffrey Kahn

Or maybe an illness related to a heart attack in 1970, a relatively young man, I think he was 53 or 54. Francis Gary Powers returns to the United States. He died in a helicopter crash, in 1977. He was helping, a local television station report on forest fires in California. And there was, failure of the helicopter.

01;18;34;09 - 01;18;55;13

Jeffrey Kahn

And he died in that crash. So they all died, relatively young. I'm not really completely accomplishing perhaps all that they wanted to in life, but I think the movie does a good job of showing this particular episode in their lives. And, with a few factual flaws and a little bit of Hollywood license, I think it's a good film.

01;18;55;15 - 01;19;14;08

Lenni Benson

Do you know, for me anything about Aldo? Was he actually a painter? Because I thought that that addition made it really humanized him and allowed in the visual media of film, communication and his patience, his professionalism, and then that portrait that he gives to Donovan respect.

01;19;14;10 - 01;19;45;05

Jeffrey Kahn

He was a painter. And he did have a studio in Brooklyn. I don't know if you want to trust my artistic eye, but I think he was a rather good painter. And you can see a few of his, paintings, actually, in Donovan's work and in the work of some of these other scholars. Ironically enough, it was one mistake involving his art studio that probably led to this entire downfall, and that is that the star witness in the trial we never actually get to hear the testimony in the case, was an underlying, is named, Rino Heffernan.

01;19;45;07 - 01;20;19;24

Jeffrey Kahn

And as good a spy as Abel was, that's how bad a spy Hayden and was. And in one you could say, break in his professionalism. Abel allowed him to know the location of his art studio. And so when Hayden and later defected to the United States and becomes the star witness for the U.S. government, that's how they began to surveil Abel, because he was able to say, well, you know, he's got this studio on Fulton Street in Brooklyn, and that's when the, surveillance begins.

01;20;19;24 - 01;20;26;05

Jeffrey Kahn

But it was that one mistake. And related to art. But yes, he really was an artist. And in my opinion, he was a good one.

01;20;26;07 - 01;20;42;03

Jonathan Hafetz

In art studio in Brooklyn. Certain things are sounding very familiar today. Of course, one of the big things that's changed over time in the movie is there's virtually no literally no depiction of women in any kind of professional role, and certainly on the court, but also among the lawyers in the case.

01;20;42;06 - 01;21;03;25

Lenni Benson

I did get the impression the legal secretaries were top notch. And often in that era, as we even know from Sandra Day O'Connor, when she graduated at the top of her class at Stanford, the only job she kind of teen was to be a legal secretary. So I thought, that world is real. What we're seeing in the film that it does when you're watching it screen modernize, you go, well, where are the women?

01;21;03;28 - 01;21;31;13

Jeffrey Kahn

I should say, for those who are interested in the, facts on the ground, so to speak. I participated some years ago, and I think it's available on C-Span in a Brooklyn Historical Society event in which, shortly after the film came out, James Donovan's son, Anthony Palermo, the last surviving prosecutor in the case, then Arthur you, a biographer of Abel and myself, appeared to discuss some of the, factual details that we've discussed, among other things.

01;21;31;17 - 01;21;57;18

Jeffrey Kahn

It's certainly true that there is that accurate depiction of the absence of women in this film, in those leadership roles. Also, I think it's fair to say that the film also is not a very multicultural, a multiracial scene displayed, for all of New York's vitality and diversity, we get a very monochromatic view of 1957, Brooklyn and Manhattan.

01;21;57;23 - 01;22;00;17

Jeffrey Kahn

And, you know, that's also so noticeable.

01;22;00;20 - 01;22;12;10

Jonathan Hafetz

Well, Jeff, Lenny, it's been so great having you both on the podcast for this deep dive into Bridge of Spies and the array of legal issues it raises. So I want to thank you both again.

01;22;12;17 - 01;22;13;16

Jeffrey Kahn

Thank you.

01;22;13;18 - 01;22;19;23

Lenni Benson

Thank you very much. And thank you, Steven Spielberg and the cast of the film, because it is definitely worth watching.