Spy Swap Forced Prosecutors Into Balancing Act

Bruce Green in The New York Times, July 16, 2010

Media Source

On June 29, two days after the arrests of 10 Russian agents in New York and three other states, Preet Bharara, the United States attorney in Manhattan, called an emergency meeting of his closest aides. Their criminal case, he was aware, was fast becoming a deal being orchestrated by politicians and diplomats.

Mr. Bharara told his aides that he had just learned that serious talks were under way at the highest levels of the American and Russian governments for a spy exchange that would end the criminal prosecution. He knew the idea of a swap had been discussed in the Obama administration as a way to resolve a potentially delicate situation at a time when the United States and Russia were trying to improve relations. But there had been no indication that a deal would come together so quickly.

“Is it appropriate for us to even be considering these sorts of things?” Mr. Bharara said he had asked his lieutenants. “Should we ever acquiesce in a trade?”

The proudly independent Manhattan federal prosecutor’s office and the Justice Department “should never be an extension of or a rubber stamp for the White House,” he said, adding, “I feel that very strongly.”

Mr. Bharara knew something about the sensitivity of law and politics: as a counsel with the Senate Judiciary Committee, he had spearheaded an investigation into the political firings of United States attorneys during the administration of President George W. Bush.

The meeting late last month began an intense tutorial by the prosecutors on law and philosophy, ethics and history, politics and statecraft. They examined research on the history of swaps of spies and other prisoners; a big one involving their office occurred in 1986, during the Cold War, when Mr. Bharara was a teenager. Would they ever draw a line? What if the child of a Russian official were arrested for drug dealing and demands were made to drop that case? Would they object to a deal then?

Mr. Bharara’s office was assigned last year to prosecute another high-profile case, the trial of Khalid Shaikh Mohammed and four others accused of plotting the Sept. 11 attacks, but before the defendants ever arrived in New York, the plans were derailed by strong opposition from local politicians.

In the Russia case, though, the circumstances were different. A deal was being struck by political leaders of two nations that would close a decade-long investigation even before an indictment was brought.

In the end, Mr. Bharara said he concluded the deal being brokered by the politicians was acceptable and just, and was being pursued for the right reason, and his prosecutors scrambled to secure guilty pleas from the 10 jailed suspects in different cities as the case sped to a conclusion.

Now, with the deal done and the Russian agents back in Moscow, it turns out that prosecutors were not the only ones questioning their role in one of the odder, more fascinating spy cases in years.

Donna R. Newman, the lawyer for one man accused of being a member of what was known as Russia’s illegals program, said a prosecutor had made clear to her that the terms of the eventual plea deal were being handed down from the highest levels of government. She said it was usually the United States attorney’s office that dictated the terms of plea bargains, and she joked with the prosecutor, “I’m used to being window dressing, but in this case you’re window dressing, too.”

Robert M. Baum, the lawyer who represented another of the agents, Anna Chapman, said, “People congratulated me on the result of the case, but I had nothing to do with the result.”

The case moved so swiftly that Peter B. Krupp, the lawyer for one of the Russian agents detained in Massachusetts, said he first learned the outlines of what later became the plea deal not from prosecutors but from a Russian official in a jailhouse meeting in Plymouth, Mass.

Mr. Krupp said he called a prosecutor, asking for confirmation of the terms of the deal, and was left with the impression that the prosecutor himself was unaware of the details.

“It is my feeling,” Mr. Krupp said, “that the defense teams, the prosecutors and the court were all pawns in this negotiation.”

To Mr. Bharara, the 41-year-old United States attorney for the Southern District of New York, who has served 11 months in the post, the prosecutors were not pawns, and he said they worked hard to guard against that.

“We took seriously our responsibility to be independent thinkers and responsible enforcers of justice,” he said. “It’s very easy for me to say that, because we agreed with what was going on, but it’s important for people to know that we thought about that.”

“If something would have violated our principles,” he added, “we would have objected.”

Mr. Bharara agreed to discuss limited aspects of the case at the request of The New York Times. Further details were obtained from others who were briefed on the process.

Mr. Bharara said he and two top aides had monitored the arrests from an F.B.I. command center in Manhattan as they were being carried out on June 27. He knew at the time, he said, that some in the Obama administration had raised the idea of a swap as part of the broader rebuilding of United States-Russian relations.

But that weekend, he said, he had no information that a deal was imminent, or even on the table.

His office had sent prosecutors to Alexandria, Va., and Boston to handle arraignments there; his lead prosecutor on the case, Michael Farbiarz, the co-chief of the office’s terrorism unit, was overseeing the effort from Manhattan.

“I fully expected we’d be in lengthy proceedings,” Mr. Bharara said, “and pleading some people out and going to trial with others.”

So when, to his surprise, he was informed on June 29 “that the idea of a swap was extremely serious,” he said, he summoned Boyd M. Johnson III, his deputy, and Richard B. Zabel, who ran the criminal division, to his eighth-floor office. Mr. Farbiarz was called back from a colleague’s farewell luncheon in TriBeCa.

Big cases often end in plea bargains before trial, with prosecutors never showing their evidence. But this proposal, coming from outside the Justice Department, raised unusual questions.

“We’re prosecutors, right? We’re not spy-swap negotiators,” Mr. Bharara said. “The view was we just needed to make sure that at every step we’re doing the right thing for the right reasons.”

Thus began their deliberation. “Was it O.K. to have a swap? And should we be considering that?” he said he had asked the group. They also discussed the content of the proposed exchange, he said

He raised hypothetical questions, like what would happen if the office were asked to dismiss a prosecution for less noble reasons.

“Would we be thinking differently,” Mr. Bharara recalled asking, “if it was a cocaine case involving some significant foreign leader’s child? And the answer was yes.”

Mr. Bharara also asked about the history of such trades, and whether they were an acceptable outcome, both in criminal law and as understandings between nations. “We deal in precedent, and it was important for me to understand what has gone on before,” he said.

He declined to elaborate on which cases they examined, but one major deal is well-known.

In 1986, an accused Czechoslovakian spy, Karl F. Koecher, who was being prosecuted by the Southern District under Rudolph W. Giuliani, became part of an elaborate nine-person exchange in which the Soviet dissident Anatoly B. Shcharansky (now known as Natan Sharansky) was freed at Berlin’s Glienicke Bridge.

The prosecutor at the time, Bruce Green, now a Fordham University law professor, recalled this week that Mr. Koecher received a life sentence that was reduced to time served on the condition he participate in the swap and never return to the United States.

“You can wonder,” Professor Green said, “does the criminal law really have much of a role to play here? If the likely result is going to be you just pack them up and send them home, what’s the point of the legal process?”

For Mr. Bharara, the review of the earlier cases was useful because it showed they were not “in uncharted territory.”

In that meeting and over the ensuing days, Mr. Bharara said, he kept a dialogue going as the proposal evolved and as Mr. Farbiarz and two other assistant United States attorneys, Jason B. Smith and Glen Kopp, worked to secure plea deals. He said there was unanimity that no swap should occur until after the Russian agents had admitted their guilt in court, described how they had violated the law and disclosed their real names. “It was very important to us,” Mr. Bharara said, “to vindicate the interests of the criminal justice system.”

One of the other key considerations, Mr. Bharara said, was the comparative significance of the four prisoners being returned in the deal.

“We did ask questions,” he said. “We learned about the relative identities and backgrounds of our 10 versus the other four; we were satisfied that the overall resolution was in the interest of justice.”

At that point, the prosecutors had to act quickly, as the Russian government was making preparations for its prisoners to be exchanged.

On July 8, the day of the guilty pleas in United States District Court in Manhattan, Mr. Bharara’s office found itself pushing to ensure that the fast-moving swap remained consistent with the requirements of the criminal justice system.

In court, Mr. Farbiarz told the judge, Kimba M. Wood, that Russian officials had been meeting with the defendants jailed in the United States, and he suggested she ask each lawyer whether the Russians had done anything to either force or entice their clients to plead guilty. The lawyer for one defendant, the journalist Vicky Peláez, revealed that the Russians had offered his client a monthly stipend of $2,000 for life and other amenities, but he assured the judge that the promises had not induced her to plead guilty.

The pleas were accepted, and the agents sentenced to time served. Within hours, they were on a flight to Vienna, the transfer point for the swap.

“Our job is to make sure that justice is done,” Mr. Bharara said, “and in the modern world, it’s to make sure it’s done consistent with national security.”