The latest in a long line.
Just because most prior spy swaps have been asymmetrical does not mean they were without benefit to the United States. While punishing spies who have violated the laws of the United States, and deterring others who might contemplate imitating them, is important, other issues are at play. In 1941, the shift in the diplomatic relationship of the United States and the Soviet Union after the German attack made the Ovakimyan case a distraction that the State Department wanted put aside. And the trade for the wives allowed it to resolve a humanitarian issue that the Soviets had stonewalled for years. The 1986 exchange allowed the United States to avoid what was shaping up as a difficult prosecution of the Koechers due to several legal procedural missteps, while freeing Sharansky from the Gulag was a significant propaganda blow against a Soviet system then spiraling toward dissolution.
This latest exchange also offers some advantages to the United States. One is avoiding a court contest. The American criminal justice system has never meshed well with foreign espionage cases. It allows defense lawyers to demand all sorts of information under discovery motions. Such demands once threatened to reveal in open court highly secret and sensitive information about American counter-intelligence operations, over which hostile espionage agencies drooled.
The lawyer for accused Soviet spy Judith Coplon in 1949 demanded that the material she had stolen from the Justice Department, and which had been found in her possession when she was arrested in the act of handing it over to a Soviet diplomat, be entered as public evidence for the world to see. The FBI was outraged that the documents it had stopped Coplon from delivering to a Soviet diplomat would be handed to the Soviets via an American court. Federal prosecutors asked Judge Albert Reeves to refuse the motion. Reeves replied that as a federal judge, “I am not charged with the responsibility of protecting the security of the government” and ordered the documents made public.
This “graymail” effectively prevented prosecution of a number of foreign spies. American security agencies (FBI, CIA, NSA) would rather forgo prosecution of a spy than reveal such secrets to America’s enemies, contenting themselves with identifying the spy and putting an end to his or her espionage with deportation or some other method of neutralization. In a belated response in 1980 Congress passed the Classified Information Procedures Act (CIPA). It provided that government prosecutors could request a judicial review of classified information demanded by a defense attorney. The judge would then rule on what classified information necessarily had to be disclosed in order for the defendant to present an adequate defense, with an option of substituting unclassified summaries for the sensitive materials. CIPA called upon judges to balance the need of the government to protect intelligence information and the right of a defendant to a fair trial. It reduced but did not eliminate the “graymail” problem in espionage and terrorism cases because judges retained a large element of discretion.
In the current case there is likely one item of information that the FBI very much wants to keep secret and that Russian intelligence very much wants to learn. From the criminal complaints released by the FBI it is clear that the bureau has had all of these spies under surveillance for years, some for nearly a decade. How did American security get onto them? Did the NSA intercept and decode the covert radio transmissions some of the Russian agents used? Was there some error in the false documents that the Russians used when entering the United States that put the FBI on the trail? Did “legal” Russian agents from the consulate and embassy who met covertly with these “illegals” make some kind of tradecraft error? And, most important, does the CIA have a source inside Russian intelligence?
Russian intelligence desperately wants to know the answers to these questions, and American counter-intelligence most emphatically doesn’t want to tell them. Defense lawyers might have attempted to use discovery motions to force disclosure of information that would help the Russians to answer these questions in hopes that the Justice Department would rather drop the prosecutions than produce the information. This swap removes that risk. Russian intelligence is left in the dark as to what went wrong with what was by all odds a major operation to which it devoted an impressive amount of resources.