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The Rules Matter…

Director Steven Spielberg’s latest offering – Bridge of Spies – works on several levels as his best films tend to. In fact, it may be one of his very best films.

Mark Rylance as Soviet spy Rudolf Abel and Tom Hanks as his attorney James B. Donovan

Mark Rylance as Soviet spy Rudolf Abel and Tom Hanks as his attorney James B. Donovan

The movie is a classic big screen thriller with adequate action and suspense. It’s a finely tuned period piece (mid-century modern) complete with old cars, vintage billboards, and “duck and cover” filmstrips.

Bridge of Spies is also an actor’s movie with superb performances by Tom Hanks and Mark Rylance, perhaps the world’s most acclaimed stage actor, and a talent that will be new to many movie goers.

And since this is Spielberg, the film is also an American history lesson.

When the Cold War Was Really Cold…

Hanks, who seems to hit his stride when working with Spielberg, plays New York attorney, James B. Donovan, who improbably becomes the key player in arranging a celebrated Cold War prisoner swap between the United States and the Soviet Union. The action is set at the end of the Eisenhower Administration and continues on into the Kennedy years – days of the Berlin Wall, the Bay of Pigs, the Cuban Missile Crisis, and spy versus spy.

The key figures in the prisoner swap – again all true – were the young American Air Force lieutenant Francis Gary Powers, who is appropriated to fly spy planes for the CIA, and the notorious Soviet spy, Colonel Rudolf Abel.

Francis Gary Powers with a model U-2 spy plane after his release from a Soviet jail in 1962

Francis Gary Powers with a model U-2 spy plane after his release from a Soviet jail in 1962

Powers became a Soviet prisoner in May 1960 when his U-2 spy plane was shot down in the Ural Mountain region of the Soviet Union during a photography run. Powers survived the crash – great scene in the movie – and was captured by the KGB.

The Eisenhower Administration originally tried to pass off the incident as a wayward weather aircraft, but the Soviets produced wreckage of the super-secret U-2 and Soviet Premier Nikita Khrushchev reaped an international propaganda windfall. A summit meeting in Berlin was cancelled and efforts to improve U.S.-Soviet relations were temporarily derailed. It was a major international incident that also had the human dimension of a young American with a head full of secrets about U.S. spy activities sitting in a Russian jail.

Earlier, in 1957, after a long string of events that read, appropriately enough, like something out of John Le Carre, the FBI and Immigration and Naturalization Service identified Colonel Abel as a Soviet spy who had been operating in the United States for some time. Abel was arrested in Brooklyn, tried, and convicted of espionage. The New York lawyer, Donovan, was appointed by the federal court in New York to defend him.

The film mangles some of the timeline and a few things are invented out of whole cloth – this is Hollywood after all – but the real power of the story and its great relevance today is in the courtroom scenes where Abel is first convicted and then loses an appeal before the U.S. Supreme Court.

After seeing and completely enjoying the film, I got to wondering what really happened in the U.S. justice system during the height of the Cold War when the government tried a man thought to be a Soviet spy.

Does a Soviet Spy Deserve Due Process…

The film understandably compresses a good deal of the story, which played out over several years, but makes some powerful and important points in the telling.

A basic question is raised early on when attorney Donovan (played by Hanks) has to confront the dilemma of an upstanding attorney, a pillar of the New York Bar, signing on to do his best to defend a Russian spy. What are the implications for his career, his law firm, his family? I immediately thought about the private attorneys who continue to represent Guantanamo detained terror suspects.

The real Rudolf Abel

The real Rudolf Abel

The film makes us confront whether it is merely enough to give Abel a defense that goes through the motions of due process or whether he deserves a no-holds-barred defense, including appeals on grounds that his hotel room and apartment were improperly searched.

At one point a CIA operative shadows Donovan in order to question him about what his client has been saying. Donovan, in one of the film’s best moments, tells the CIA fellow that he won’t – indeed can’t – talk about what his client is telling him since it is protected by attorney-client privilege. There are rules, Donovan says, most importantly the Constitution that make our system different than the system that is detaining Gary Powers.

Abel’s case, both in the film and real life, eventually reaches the Supreme Court over the question of the lack of a proper warrant that specifically authorizes a search the defendant’s rooms. Give Spielberg credit, he even gets the Supreme Court courtroom correct. Abel’s case was argued, actually twice, in 1959 and the courtroom has since been remodeled.

The case turned on a complex question about whether a warrant for an “administrative arrest” – Abel was actually arrested by the immigration service after being detained and questioned by the FBI – allowed the subsequent FBI search of his rooms. The celebrated Justice Felix Frankfurter wrote the rather technical 5-4-majority opinion upholding the legality of the search and Abel’s conviction stood.

This is a notorious case, with a notorious defendant…

As is often the case, the dissents in such cases make for better reading and offer more insight into the workings of our justice system. Justice William O. Douglas wrote one of the dissents in the Abel case and Justice William J. Brennan another.

Mr.  Justice Douglas

Mr. Justice Douglas

“Cases of notorious criminals—like cases of small, miserable ones—are apt to make bad law,” Douglas wrote in his dissent, which was joined by Justice Hugo Black.

“When guilt permeates a record, even judges sometimes relax and let the police take shortcuts not sanctioned by constitutional procedures. That practice, in certain periods of our history and in certain courts, has lowered our standards of law administration. The harm in the given case may seem excusable. But the practices generated by the precedent have far-reaching consequences that are harmful and injurious beyond measurement. The present decision is an excellent example.”

Douglas was saying sure this Abel is a Soviet spy – a notorious criminal – but the rules apply to him just as they apply to “small, miserable” law breakers.

“If the F.B.I. agents had gone to a magistrate, any search warrant issued would by terms of the Fourth Amendment have to ‘particularly’ describe ‘the place to be searched’ and the ‘things to be seized,’” Douglas wrote. “How much more convenient it is for the police to find a way around those specific requirements of the Fourth Amendment! What a hindrance it is to work laboriously through constitutional procedures! How much easier to go to another official in the same department! The administrative officer can give a warrant good for unlimited search. No more showing of probable cause to a magistrate! No more limitations on what may be searched and when!”

Brennan was just as pointed: “This is a notorious case, with a notorious defendant. Yet we must take care to enforce the Constitution without regard to the nature of the crime or the nature of the criminal. The Fourth Amendment protects ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ This right is a basic one of all the people, without exception…”

Real American Exceptionalism…

The court case and the film also make the fundamental point that Abel, not a U.S. citizen, still enjoyed the full protections of the country’s justice system, a point worth pondering as the terror suspects sit year after year in Cuba.

President Kennedy with James B. Donovan who also negotiated return of Bay of Pigs captives

President Kennedy with James B. Donovan who also negotiated the return of Bay of Pigs captives

Rudolf Abel languished in U.S. prisons until early 1962 when the Donovan-brokered exchange took place on a bridge dividing East and West Berlin. That bridge gives the film its title. The New York attorney was publicly acknowledge by the Kennedy Administration as having helped make the arrangements.

The negotiations over the swap are some of the best moments of the film and, intentionally or not, Spielberg shows that the New York insurance lawyer who became an Cold War negotiator turned out to be a lot better high stakes deal maker than his CIA minders.

The film is already getting some Oscar buzz – it is certainly worthy – if only for its deft storytelling and the great performances. Mark Rylance’s portrayal of Rudolf Abel is nothing short of brilliant. And the script by the Cohen Brothers is first rate. A typical Cohen touch is the reoccurrence of Abel’s response when his lawyer asks him if he’s worried or afraid: “Would it help?” That has become my new mantra.

As good as the movie is as entertainment here’s hoping a few enterprising high school (or college) teachers use the film in class to make the more important points about our justice system and our history.

The hero in the film is, of course, attorney Donovan, a man mostly lost to history whose role in Abel’s trial and in the spy swap may now finally enjoy some long overdue recognition. Donovan, who died in 1970, spent years working on the Russian spy’s defense and appeals and donated half his $10,000 fee to Fordham University and split the rest between Harvard and Columbia. Setting aside the Abel case and the spy swap, the rest of Donovan’s career – naval officer, Nuremberg prosecutor, New York board of education member, U.S. Senate candidate – was truly incredible. A great American story.

Even though he lost at every level Donovan said after the Supreme Court ruling, “The very fact that Abel has been receiving due process of law in the United States is far more significant, both here and behind the Iron Curtain, than the particular outcome of the case.”

That one sentence says a lot about why we won the Cold War.


What To Do With Lenin

What do you do with the body of a man who undoubtedly changed the world, but now has – we can hope – been consigned to the dust bin of history?

Upon hearing of his death in 1924, the true believers reportedly said: “Lenin is dead. Long live Lenin.”  So, they embalmed the mastermind of the Bolshevik Revolution and laid him out for all eternity in his own red granite mausoleum in Red Square just outside the Kremlin Wall in Moscow.

Now, with a new dictator in town named Putin, Vladimir Ilich Ulyanov – Lenin – has become “the dead mouse on the national living room floor” according to a delightful piece in Sunday’s New York Times by the talented Christopher Buckley. Apparently more than 50% of post-Communist Russians favor burying the old boy once and for all.

Seeing Buckley’s story reminded me of my own fleeting, but memorable encounter with Lenin. It was 1984, a time of some of the greatest tension between the Soviets and the United States. We didn’t know then that the Soviet Union was on its last legs. After all, Ronald Reagan had referred to the Communist state as “the evil empire” and tensions ran very high.

I was fortunate enough to tag along with a group of Idahoans who went to the Soviet Union for about two weeks as part of a people-to-people exchange. We were there to make a television documentary and one of the genuine highlights of the trip was time spent gathering film footage in the vast expanse of Red Square where then, as now, Russian soldiers stand guard over Lenin’s Tomb.

Not everyone gets inside the mausoleum, but somehow we did, but no photos were permitted. Apparently our Soviet minders wanted the visitors from the capitalist west to see the man from which the revolution had sprung.

I remember that a long line of gawkers snaked by Lenin’s body in single file and, in my case, both fascinated and a little creeped out at seeing the extraordinarily well  dressed (and preserved) dictator bathed in soft and flattering light. His dress shirt was an immaculate white. The French cuffs adored by gold cuff links and his necktie perfectly knotted. Lenin looked like he’d stretched out for a long afternoon nap without bothering to remove his suit jacket.

The whole visit lasted maybe 30 seconds and the well-armed Russian guards did not encourage any loitering, but obviously I still remember the cuff links and being in the presence of the body, at least, of one of the century’s most consequential figures.

Lenin’s body, indeed his tomb in Red Square where so many generations of Soviet leaders stood and watched the high stepping Red Army march by, are  today symbols of a failed and discredited system, but are still symbols of our – and Russian – history. So, do Russians bury Lenin and with him hope that a distant, but still telling part of world history is pushed underground, too?

In the French capitol Napoleon’s Tomb is a tourist attraction that political correctness seems hardly to have touched. The Corsican did, after all, try to conquer European, but is honored still as a great man of France. Even Adolf Hitler couldn’t resist a visit when he toured Paris just after the fall of France in 1940.

Robert E. Lee, arguably guilty of treason for leading a war of rebellion against the United States, is buried inside the chapel at Washington & Lee University in Lexington, Virginia, the state that still celebrates his birthday as an official holiday.

What do we do with the elements of our past that no longer seem relevant or appropriate? Do we, as the Stalin regularly did, airbrush those elements from history? (Stalin, by the way, was embalmed after his death and for a while laid out next to Lenin, but that pairing didn’t last.)

Lenin has been sleeping the sleep of the old, dead Bolshevik for nearly 90 years. What Lenin did must be remembered. Perhaps Russians can remember his role in 20th Century world events without keeping his corpse on morbid display in the very heart of their capitol city.

As Buckley calls him, “Sleeping Beauty from Hell,” deserves a final resting spot, not out of mind for sure, but finally out of sight.



A Simple Story of a Battle

April 6, 1862 – 150 years ago today – Americans came to understand that their Civil War would be not be over easily or soon. Edward Ayers, a fine historian of the war, has written that the battle near Shiloh Meeting House in Tennessee changed everything about the war.

“Thousands of men with little training and no experience in war were thrown against one another in days of inexpressible suffering and waste,” Ayers writes. When the two armies disengaged, 23,000 Americans were dead, more in a few hours than in all the wars the nation had fought to that point.

Union Gen. Ulysses S. Grant “won” the battle, but the slaughter that went with the victory – 13,000 of his soldiers died – brought demands on Abraham Lincoln that Grant be removed from command. Lincoln refused, famously saying he could not spare Grant because “he fights.”

“Up to the battle of Shiloh,” Grant would later write, “I as well as thousands of other citizens believed that the rebellion against the Government would collapse suddenly and soon [if] a decisive victory could be gained over any of its armies. [But after Shiloh,] I gave up all idea of saving the Union except by complete conquest.”

As horrible as Shiloh had been, Grant began to make his reputation as a fighting general on April 6, 1862. He had been initially surprised by a Confederate attack, but by force of will and battlefield smarts he recovered. The southern army left the field and suffered a grievous loss with the death of perhaps its best solider Gen. Albert Sidney Johnston. I’ve always wondered how history might have turned out differently had the events at Shiloh been reversed and Grant died on the battlefield and Johnston lived on to command increasingly important Confederate armies.

The 19th Century writer Ambrose Bierce, one of the great writers about the conflict, captured the awful essence of Shiloh in his enduring essay “What I Saw at Shiloh.” The first line of Bierce’s story was “this is a simple story of a battle,” but, of course, it was very far from simple. The last line of his essay told the real story.

“Give me but one touch of thine artist hand upon the dull canvas of the Present; gild for but one moment the drear and somber scenes of to-day, and I will willingly surrender an other life than the one that I should have thrown away at Shiloh.”

The sesquicentennial of the horrible war gives us reason to think again about the legacy of the American Civil War and reassess the conflicts lasting meaning. The awful bloody reality of the war that never ends truly became clear to Americans on a Sunday in April 1862 – 150 years ago today.


The Vermont Humanities Council is producing a marvelous weekly piece on the 150th anniversary of the Civil War. I salute them for the effort and for the rich content this week on the Battle of Shiloh.