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Burden of Proof

Examining the Case of FBI Espionage

Aired February 21, 2001 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: dead drops, diamonds and detailed documents. The FBI uncovers a suspected mole, but not before he allegedly spied for the Russians for 15 years.

(BEGIN VIDEO CLIP)

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Allegations of espionage are a reminder that we live in a dangerous world, a world that sometimes does not share American values.

DAVID MAJOR, FMR. FBI OFFICER, COUNTERINTELLIGENCE DIVISION: When you look at the list of things that he allegedly compromised, it has to take your breath away, because what it does is it compromises the capacities and capabilities of this nation to defend itself.

JAMES WOOLSEY, FMR. CIA DIRECTOR: It's just an incredible betrayal, essentially like a family member. And there are thousands of excellent FBI agents out there who feel the same way.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

Despite the end of the Cold War, the trench-coat underground world of espionage and international intrigue still seems to permeate the relationship between the United States and Russia. This week, Robert Philip Hanssen was arrested and charged with spying for the former KGB and its successor, the Russian SVR. Hanssen is only the third FBI agent ever arrested for alleged espionage.

GRETA VAN SUSTEREN, CO-HOST: U.S. officials say the Russians knew Hanssen as "B," just a single initial for a voice from within the American intelligence community. They also allegedly referred to him as Ramon. According to the FBI, Hanssen's first communication to the former Soviet Union came in the form of a letter to a KGB official in the United States on October 1, 1985.

COSSACK: Hanssen's alleged espionage career came to an end Sunday night when he was arrested at a Vienna, Virginia park, where investigators say he left a package for the Russians, an act referred to in the intelligence community as a dead drop.

Joining us from Foxstone Park, Virginia is CNN correspondent Kathleen Koch.

VAN SUSTEREN: And here in Washington: Mark Hulkower, a former federal prosecutor in the case against former CIA employee Aldrich Ames; Nina Ginsberg, who represented former FBI agent and convicted spy Edwin Pitts; and Paul Redmond, former head of counterintelligence of the CIA.

In the back wow: Lindsay Henjum (ph) and Jessica Schmidt (ph).

Kathleen, first to you. Can you please give us a description of the -- of where the so-called drops occurred and how the transactions were done?

KATHLEEN KOCH, CNN CORRESPONDENT: Greta, this is a very quiet neighborhood park in Vienna, Virginia, which, as you know, is a middle-class neighborhood. It's west of Washington, D.C.

I'm standing here by the sign for Foxstone Park, where -- apparently, according to the FBI, the actual drops would occur was at a foot path, a bridge just across the road. If my cameraman can pan around, you are going to see some other photographers in the foreground. But off in the distance, there is a footbridge. That is where the FBI alleges that Mr. Hanssen would leave highly classified documents for the Russians.

And then in return, the FBI says in its affidavit, that the Russians would leave large quantities of cash, ranging from $10,000 to $55,000 and occasionally actually diamonds in payment for Mr. Hanssen. Also very close to this site is where he was actually arrested. The arrest occurred -- we're going to back up, walk up the road here -- just up the road from Foxstone Park. We spoke to a gentleman this morning who told us the arrest occurred in his yard on Sunday.

He said he saw some five FBI vehicles out there. And you can just look up the road. It's a grassy knoll right up the hill. He said he saw Mr. Hanssen being patted down by the FBI agents. And he saw them handcuff him. He said Mr. Hanssen appeared very calm throughout the entire ordeal and did not appear to arrest whatsoever -- Greta.

VAN SUSTEREN: Kathleen, what about -- how did they signal each other? Was any sort of signal set up?

KOCH: There was. According to the FBI, Mr. Hanssen used something like this, which is just white medical tape. And he would put a vertical piece of tape right here on this sign, the Foxstone Park sign. That would signal to the Russians that he had some information for them, either documents or a diskette.

The Russians would then allegedly retrieve that information, remove the tape. And then when they had some cash or diamonds in payments, they would come and put a horizontal mark -- let me get it straighter there -- a horizontal mark of tape on the very same sign. Hanssen would then allegedly retrieve the money or the diamonds and remove the tape. They also had another signal. If we can go back up to the road, as you can see, there are some posts that line the road. And they set up another technique, where, if they needed to make an immediate drop -- if it was an urgent drop -- they would insert a white thumbtack into one of these posts. Also, if there was a reason they should not communicate, if there was a threatening situation, Hanssen was to stick a yellow thumbtack into one of these posts.

So it's very low-tech spy methods here that were used to pull off what at least the FBI alleges was one of the most highly damaging spy cases in U.S. history.

COSSACK: Paul Redmond, low-tech, as Kathleen Koch points out, but very effective. We hear about espionage. We hear about wires. We hear about all these high-tech kinds of things. But yet here's a man who, for 15 years: perhaps the most inexpensive way of signaling, and yet undetected.

PAUL REDMOND, FMR. HEAD OF COUNTERINTELLIGENCE: Well, the high- tech equipment is always susceptible to failure, electronically or whatever. And just tapes and thumbtacks are the classic, years- proven, centuries-proven way of doing business. It doesn't fail.

(CROSSTALK)

VAN SUSTEREN: Paul, I know how to hire a lawyer. Somehow the concept of hiring a spy, I mean, how do you actually -- how do you know who's going to spy for you? I mean, how do you hire a spy?

REDMOND: Well, historically, the big spies -- both working for us and working against us -- have all volunteered the way this gentleman is alleged to have done -- on their own initiative approached the intelligence service. Of course, there are other ways of doing it. Historically, we have had success, the agency and the bureau, of going out and making friends with somebody, developing a close personal relationship and a relationship of trust, and then getting them to essentially spy for us.

COSSACK: You know, the notion that he -- part of his plan, allegedly, was that no one would ever know his name. That is, on the other side, that he was able to keep himself absolutely in a way that no one knew he existed both on -- obviously, on our side -- or on the Russian side. Is that an unusual thing?

REDMOND: That's happened to us. The CIA has run cases where we didn't know who the person was. He was obviously trying to protect himself. He knew the bureau had a couple of penetrations of the KGB -- the then KGB -- in this country. And he figured that if they said that there was a spy, if they didn't have his name, he would be just that much safer.

VAN SUSTEREN: Kathleen, how far is this park from the Hanssen home? And do we have information about whether or not there might be anybody else involved in this, including a family member?

KOCH: This one -- in the FBI affidavit, they don't mention anyone else in the family potentially being involved. There was, of course, Robert Hanssen's wife, Bonnie, who lived in the home with him. They were the parents of six children. Only two of the children, ages 15 and 18 -- a daughter and a son -- still lived in the home. And, again, the FBI has made no intimation whatsoever that they are involved in any way.

This park is probably about five minutes from Mr. Hanssen's home. So it was obviously a site -- though, this site, apparently, according to the FBI affidavit, was allegedly chosen by the Russians. It's a site that was very convenient for him. He could easily drive past here at any time and not arouse any suspicions whatsoever, not deviate from any of his normal patterns.

VAN SUSTEREN: Kathleen Koch joining us from Virginia in a park.

We're going to take a break. When we come back, the world of espionage: It's glamorized in movies and often discounted as a bygone era of the Cold War. But how can Washington bureaucrats track potential spies within their ranks? And how do you prosecute and defend?

Don't go away.

(BEGIN LEGAL BRIEF)

Michael Skakel, charged with the 1975 beating death of neighbor Martha Moxley, did not enter a plea during his arraignment this morning in adult court. Skakel has appealed the ruling that transferred his case out of juvenile court. A probable cause hearing has been scheduled for April 18.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

SUSTEREN: After a quarter century working inside the FBI, veteran agent Robert Philip Hanssen has been charged with spying for Russia.

In a letter quoted in an FBI affidavit, Hanssen says he was motivated by the memoirs of British-Soviet double agent Kim Philby. According to the affidavit, Hanssen was drawn to the world of espionage at the age of 14.

Mark, let's talk about indicting this case. All sorts of issues of top secret document, information, that should not be in the public domain. How do you present to a grand jury of lay people? Do they have to have security clearances?

MARK HULKOWER, FMR. FEDERAL PROSECUTOR: The grand jury doesn't need security clearances. What you're going to try and do is establish the fact that this is national defense information. You don't have to establish that it's classified, although it is. You have to establish that it relates to the national defense.

VAN SUSTEREN: How do you do that without at least revealing the content? HULKOWER: Well, in part, you talk about topics. You talk about subjects. You put a witness into say, These were classified at this level because they relate to a topic which would cause grave harm. You talk about it generally. You avoid getting into the specific.

The challenge is going to be -- because the government is going to want to indict this case quickly because they don't want to go to the preliminary hearing because they don't want to be in the position of having to let...

VAN SUSTEREN: Which for our viewers...

HULKOWER: ... Hanssen's attorney cross-examine.

VAN SUSTEREN: ... which for our viewers -- for our viewers' benefit, it will go to a preliminary hearing, where both sides get to ask questions if it's not indicted first. So obviously indict to avoid the preliminary hearing.

COSSACK: You know, in terms of what you have to look for. I mean, this is a case that potentially has the death penalty. But as a prosecutor, are you that interested in the death penalty in this case?

HULKOWER: When we prosecuted Ames, there wasn't a death penalty available. There was a big drumbeat from people who wanted to see one in that case.

There's going to be political pressure bought to bear here.

VAN SUSTEREN: Especially -- wait a minute. Especially, Roger, if they -- if it can be established. According to the affidavit, information led to the execution...

COSSACK: No. That's right.

VAN SUSTEREN: ... of two in Russia.

COSSACK: And that's...

VAN SUSTEREN: I mean, it's got to...

COSSACK: That's why -- that's why there's a death penalty.

HULKOWER: That's -- that's where you're going to see the drumbeat coming from. People are going to say, He caused the deaths of people. This is murder, and murder is subject to death penalty. So why don't we apply it here?

What you may see is that the death penalty is used as a bargaining chip. And the government won't talk about it in that sense because they don't talk about the death penalties if it's a poker chip that you throw in and take back

But there's not a lot that they can offer. Mr. Hanssen has one thing that the government wants. And that's information. They want to know what he compromised over a 15-year period. COSSACK: Now, Nina, you -- you're -- I want to make you the defense lawyer. You've handled these kinds of cases before. You know what Mark knows. How does it begin? How does that -- as Greta says, how does that dance begin where you come in and say, You know, I may know something that you may want to know. And Mark says, Well, give me a little hint. I mean, how does it work?

NINA GINSBERG, CRIMINAL DEFENSE ATTORNEY: Well, I mean, it's clear that they're going to -- in all of these cases, they want to know what has been compromised.

And the -- I think it will be fairly early on, that his lawyers are told what the government wants. The question that's really harder is for his lawyers to make an assessment of how defendable, if at all, this case is, other than avoiding the death penalty. That's obviously the primary -- the primary objective of -- is almost always a defense -- a defendant's primary objective. But...

VAN SUSTEREN: Nina, I've got to ask you.

GINSBERG: ... there are -- there may be other defenses.

VAN SUSTEREN: Nina, you've got to start your case by debriefing your client. Every case, you debrief client, whether it's armed robbery or espionage. But here, you've got problems in that it's -- he's got classified information.

What does a lawyer -- does a lawyer -- a defense lawyer have to get a security clearance?

GINSBERG: Oh, absolutely.

VAN SUSTEREN: How do you go about doing that?

GINSBERG: The government -- the government -- the Justice Department has a special division, a security division that handles court cases. And they will do a completely...

VAN SUSTEREN: What if he wants to hire his own lawyer? What if he says, I want Roger.

COSSACK: Who doesn't have a security clearance.

GINSBERG: Well, then the security group will do a security background check on you and determine whether you can be granted an appropriate security clearance.

COSSACK: And I guess if I flunk, he doesn't get Roger...

VAN SUSTEREN: Then he gets...

COSSACK: ... as a lawyer.

VAN SUSTEREN: But what -- I mean, what if...

COSSACK: If they flunk me and pass you, we're going to reinvestigate.

VAN SUSTEREN: In fact, when you sit down with a client -- I mean -- and you -- now you've got your security clearance. I mean, there must be some time lag between the time your client's been arrested, you get the security clearance.

What do you do in that interim period? What can you say to your client?

GINSBERG: Well, if you don't have a security clearance, there -- as far as the actual case is concerned, there is not a lot of -- that you can say.

But what you can do is talk about motivations. What you can do is talk about this -- without going into the substance of the specific information that was compromised, you can find out what he was doing.

In this case, it seems as though -- if nobody truly knew who he was, there is a reasonable possibility that this case can be defended. It's sort of hard to imagine. And without knowing what the FBI learned in the course of investigating him, it's hard to really say that. But...

COSSACK: I think -- I think they were -- I think they arrested him when he was dropping off...

GINSBERG: They did. But it -- that...

COSSACK: That's not good.

GINSBERG: That's not good. But we...

VAN SUSTEREN: Alleging that double...

GINSBERG: At this point, we don't know...

VAN SUSTEREN: I mean, he could be an agent for the other -- I mean...

GINSBERG: We don't know what was in that -- in that bag. We don't know if -- what was in the bag right now was top secret or secret. The penalties are very different for top secret information...

COSSACK: OK.

GINSBERG: ... and secret information.

He may be facing a totally different range of penalties if what was in that bag that he was seen dropping only contained...

COSSACK: Right.

GINSBERG: ... secret information.

COSSACK: All right, Paul, I want to put -- now, you're going to work with Mark. And Nina has come in and said, You know, I want to save my client's life. And in fact, perhaps, I may want to even maybe get my client out of jail sometime before he does life. And you know, I have a lot to give you.

You know, Mark's a prosecutor, and he says, I'm putting my foot down. There's nothing happening there. But you two have to talk on the phone.

Do you influence -- do you try to influence Mark and say, Wait a minute. We've got to know this stuff. I mean, you know, you have to back off, Mr. Prosecutor. Is there -- is there a conversation?

REDMOND: Mark and I worked very successfully along with the bureau, of course, in the Ames case. And one of the major issues has always been protecting the sources, if there are any, who led us to the spy in the first place. That's the main consideration. And historically, the bureau and the Justice Department have been absolutely wonderful on that subject.

VAN SUSTEREN: Nina, I would suspect. Lawyers always -- defense lawyers in particular -- have huge fights with prosecutors about discovery, information they are required to turn over.

Would this sort of -- you know, in a case like this, there must be a lot of information defense lawyers feel like they are not getting and should get.

I assume that's right. And if so, how do you fight that one?

GINSBERG: Well, what ends up being true is your fight really isn't so much with the prosecutor, who is the assistant prosecuting the case. It's with the intelligence community who does not want information released.

VAN SUSTEREN: But the prosecutor's got the obligation to turn it over.

COSSACK: That's why I was suggesting that there may be conversations going on between you and Mark; that there may be...

REDMOND: There are awful a lot of security matters.

COSSACK: .... security issues out there.

HULKOWER: We can't disclose information that the Paul Redmonds of the world won't allow us to.

VAN SUSTEREN: But he's got -- he's got constitutional rights no matter...

HULKOWER: Which is why the "green mail card," as they call it, the ability of a defendant to play the classified information and say...

COSSACK: Right.

HULKOWER: ... I want it. I want to disclose it. That's something that's been done in espionage cases.

There is a law designed to prevent that. But if a defendant can successfully put at issue classified information that the intelligence community does not want to disclose, and refuses to disclose at the end of the day, a case can be dismissed.

That happened once before in an independent counsel case in the eastern district of Virginia, where the intelligence community would not allow the release of information. And the court had no option but to dismiss the case.

COSSACK: All right, let's take -- let me just interrupt for a second. Let's take a break. More on the spy case when we come back. Stay with us.

(COMMERCIAL BREAK)

(BEGIN Q&A)

Q: What archaeological discovery has halted the construction of a courthouse on Staten Island?

A: A sliver of human bone, evidence of a 19th century cemetery for quarantined immigrants. New York officials are surveying alternate sites for the courthouse.

(END Q&A)

COSSACK: A 56-year-old father of six has been charged as a spy for the Russians. Now, yesterday, in a federal court in Virginia, veteran FBI agent Robert Philip Hanssen was charged with spying for more than 15 years.

Paul, I want to pick up on a conversation we had during the break. Suppose Nina is able to characterize the issue before the judge as, Judge, my client has a right to know who the confidential informant is, who gave up this information to the FBI and caused my client to be arrested, because we have a right to cross-examine that person.

And suppose there's a judge who says, You know what? Ms. Ginsberg, you may be right on this. I'm going let the agent and the intelligence people talk about this for a while.

Now, you two are faced with what possibly can be a tough decision. Do you give up this kind of information?

REDMOND: Well, it all depends on whether it would kill the agent if he is still in place in jeopardy, or if he is -- that wouldn't be in danger; that would be the main consideration. Other than that, it's a hypothetical.

HULKOWER: And if the information had already been turned over to the KGB, there is another issue there.

But the thing to remember is when the agency or the FBI are dealing with one of their own, there's a more compelling desire to get this person. When you saw Director Freeh on TV with his press conference yesterday, he was angry. The intelligence community is not going to be resistant to a prosecution. Either they're going to want to see this guy dead, what the law allows. So there's not going to be disputes from the prosecutor.

REDMOND: In the Ames case, Ted Price was the director of operations in CIA. They said, We'll do anything to help the prosecutor to make sure this guy goes to Marion.

VAN SUSTEREN: Nina, the biggest hurdle for defense attorney in representing someone accused of espionage?

GINSBERG: Well, generally these cases are fairly well developed by the time you end up with an arrest. But the...

VAN SUSTEREN: Meaning the prosecution has built this case...

GINSBERG: ... prosecution...

VAN SUSTEREN: ... tried him in the act, basically, is cooked?

GINSBERG: There's a 109-page affidavit in this case. And that's probably only a small portion of the information that they already know. But there are...

VAN SUSTEREN: So it's that saving his neck, is it...

GINSBERG: Basically, the -- in many cases. I mean, to watch it --they are also facing this huge -- what Mark was just saying -- this huge anger. There is a tremendous emotional component to these cases, where the government just wants to get the person that's done this to them. It's they -- they've been personally betrayed. The agents on the squads, they feel a personal betrayal. And it's a -- it's a very difficult -- you don't have the same negotiating room that you have in a normal case.

VAN SUSTEREN: Paul, how can they...

COSSACK: Paul, all agents are polygraphed. Why isn't -- if all agents are polygraphed -- and they are -- why wasn't this guy exposed?

REDMOND: Well, as I understand it, the bureau instituted a program, I guess, after Ames, to polygraph most, if not all, the special agents involved in counterintelligence work. And I don't know whether this gentleman was polygraphed or not. Maybe he left the national security division by the time they got around him, is they fell through -- he sort of fell through the cracks. I don't know whether he was polygraphed or not.

VAN SUSTEREN: Mark...

GINSBERG: You know...

VAN SUSTEREN: Go ahead. GINSBERG: ... it's sort of interesting. After when Earl Pitts was convicted three or four years ago, he was subjected to more than -- or agreed to participate in more than 70 hours of debriefings. And you -- it would be very interesting to know now what changes were made after -- by the FBI, after his conviction that should have improved the internal security.

VAN SUSTEREN: Well, you know, that's interesting. People have been complaining, like, you know, shouldn't, you know, Director Freeh have known? There's been -- I mean, there are thousands of agents out there, thousands. I mean, you're going have a few bad apples in there.

HULKOWER: And the polygraphs aren't going to be the answer. I mean, remember. Ames was polygraphed. He was polygraphed twice while he was passing information to the KGB. He passed both times. One time with qualifications, but he cleared.

I prosecuted another espionage case 10 years ago. A fellow was spying for a foreign government for 30 years. He passed polygraph exams.

They are not infallible.

GINSBERG: But there are -- there have to be -- there have be better ways of watching people for motivations, for signs that something is wrong.

VAN SUSTEREN: But this guy wasn't leading -- he wasn't driving a, you know, Rolls-Royce, who's still lived -- a family man.

GINSBERG: Apparently, he was an angry -- he was an arrogant and maybe angry man. It seems that he thought very little of the FBI and their capabilities, if some of the things he's written are accurate representations.

COSSACK: Paul, are there...

VAN SUSTEREN: People ought to be able to...

COSSACK: ... are there enough internal sanctions in place? Or is this a guy like this who is just -- who can apparently lead a double life, is he just going to go and be undetected?

REDMOND: Well, this guy, obviously, had a very low profile. He didn't throw his money around as Greta said. And he probably would have gone undetected forever until the bureau and/or the CIA managed to collect this information that pointed to him.

VAN SUSTEREN: All right, well, that's all the time we have for today. Thanks to our guests, and thank you for watching.

Tonight on "THE POINT": the debate over the execution of a convicted Oklahoma City bomber. Timothy McVeigh does not oppose his execution being televised nationally. I'll speak with his lawyer at 8:30 Eastern. COSSACK: And today on "TALKBACK LIVE," rap artist Eminem, who's Greta's favorite and mine as well, has sold millions of CDs with controversial lyrics.

VAN SUSTEREN: I do not like Eminem.

COSSACK: Should his music be rewarded with a Grammy? What about it, Greta? You should know.

VAN SUSTEREN: You know, Roger's a liar.

COSSACK: Send your e-mail to Bobbie Battista, and tune in at 3:00 p.m. Eastern time.

We'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then. TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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