All posts by Jeffrey Kahn

Professor Kahn joined the SMU Law faculty in 2006. He teaches and writes on American constitutional law, Russian law, human rights, and counterterrorism. In 2007-2008, he received the Maguire Teaching Fellow Award from the Cary M. Maguire Center for Ethics and Public Responsibility at SMU for his seminar, “Perspectives on Counterterrorism.” In 2008-2009, he was named a Colin Powell Fellow of the John Goodwin Tower Center for Political Studies. In 2010, he received SMU’s Outstanding Faculty Award, a university-wide award given each year to a junior, tenure-track faculty member for excellence in teaching, curricular development, and scholarship. In 2011, he received the Law School's Excellence in Teaching Award. He is also a member of the founding Advisory Board for the SMU Human Rights Education Program. Professor Kahn's current research focuses on the right to travel and national security. His book on the U.S Government's No Fly List will be published by the University of Michigan Press in 2012. His first book was published by Oxford University Press while he was a law student as Federalism, Democratization, and the Rule of Law in Russia (2002). During law school, he also served as a lecturer on European human rights law at summer training programs in Moscow for Russian lawyers sponsored by the Council of Europe. Following graduation, he was a law clerk to the Honorable Thomas P. Griesa of the United States District Court for the Southern District of New York. Professor Kahn served as a trial attorney in the Civil Division, United States Department of Justice from October 2003 until April 2006. In 2005, he was briefly detailed to the Criminal Division to conduct research in Russia on Russian criminal procedure for the Justice Department's Office of Overseas Prosecutorial Development, Assistance and Training.

The Case of Colonel Abel

In June 2010, journalists for the Associated Press reported the arrest often Russian spies, all suspected of being “deep-cover” illegal agents in the United States. Seeking to convey the magnitude of this event, the journalists wrote that this “blockbuster series of arrests” might even be as significant as the FBI’s “famous capture of Soviet Col. Rudolf Abel in 1957 in New York.” The reference may have been lost on many Americans, but Colonel Abel’s story of American justice at a time of acute anxiety about the nation’s security is one that continues to resonate today. The honor, and error, that are contained in Colonel Abel’s story offer lessons worth remembering as the United States struggles against a new enemy: international terrorists. One important lesson is that ad hoc departures from the requirements of constitutional criminal procedure, even in the pursuit of seemingly exigent and unique national security threats, tend to cause more trouble than they are worth. Another is that these lessons have been repeatedly learned and, it would seem, repeatedly forgotten. We should be in the process of relearning these lessons today. In that spirit, after briefly summarizing Colonel Abel’s case and some of the themes it shares with contemporary cases, this article presents selected aspects of Colonel Abel’s arrest, trial, and appeal.

Early in the morning of June 21, 1957, almost exactly fifty-three years before the June 2010 arrests, Special Agents Edward Gamber and Paul Blasco of the FBI pushed their way into Room 839 at the Hotel Latham in Manhattan. The FBI agents sat a sleepy and half-naked Abel on his bed, identified themselves as charged with investigating matters of internal security, and questioned him for twenty minutes, insinuating knowledge of his espionage activities by addressing him as “Colonel.” The FBI agents told Abel that “if he did not ‘cooperate,’ he would be arrested before he left the room.” When Abel refused, the FBI signaled to agents of the Immigration and Naturalization Service (the INS, then under the authority of the Department of Justice), who were waiting outside. Under the close observation of the FBI agents, the INS agents arrested Abel, searched him and the contents of his room, and seized several items as evidence of Abel’s alienage.