Foreign Relations of the United States, 1969–1976, Volume XIII, Soviet Union, October 1970–October 1971

33. Memorandum From the President’s Deputy Assistant for National Security Affairs (Haig) to the President’s Assistant for National Security Affairs (Kissinger)¹

Washington, October 28, 1970.

• SUBJECT
  • Status of the Ivanov Case

Attached is a fact sheet prepared by Art Downey which summarizes the current status of the Ivanov case.² I have not made any contacts with Justice on this issue until you have had an opportunity to assess on your own the complexities of this long-standing problem area. I am informed that the Soviets have opened this case with the United States government on at least seven prior occasions and that they never fail to do so whenever the opportunity arises.

The current situation with the summit and détente on the horizon and the two U.S. generals in a hostage configuration again provides a propitious opening for the Soviets. Because of the case’s linkage with wire tapping evidence, the Cassius Clay issue and the horrendous implications of this case to our Constitutional laws, I am confident that John Mitchell will take the hard line as Justice has continually done despite a drumbeat of pressure from State over the years.

My concern is that if we were to try to shake Ivanov loose we would be succumbing to future blackmail of this kind and would provide an incentive for the Soviets to pick up innocent U.S. citizens in return for proven Soviet spies. Therefore if we were to move, it should only be after our two generals have been released. I am also concerned that the Soviet response to the summit initiative does not justify our taking this action which would only confirm obvious Soviet suspicions that we are slobbering for a summit—an attitude generated by events of the past two weeks which must have the Kremlin hierarchy puzzled if not totally flabbergasted.³

Recommendation

That we do not stir the waters on this controversial case without a sizeable quid pro quo and that we hold this issue in abeyance until we need something from the Soviets beside the release of generals or sweet music in the wake of the Gromyko visit.⁴

Attachment⁵

The Status of the Ivanov Case

Background. A Soviet national employed as a chauffer by Amtorg (Soviet trading company), Igor Ivanov was arrested in 1963 and convicted one year later for espionage. He was sentenced to 20 years imprisonment, but after serving only a very short while, he has been free on a bail bond pending his appeal. The court has confined his freedom to New York City and the Soviet estate on Long Island.

Ivanov appealed his conviction essentially on the assertion that the wiretapping employed in his case was unconstitutional. His appeal traveled to the US Supreme Court which in 1968 decided to remand the case to the Federal District Court in New Jersey. The issues were divided into two, one constitutional and the other evidentiary. The constitutional issue was whether telephone surveillance conducted without a court order, but ordered by the Attorney General in the interests of national security, was constitutional. The relatively minor factual issue was whether the wiretapping of Amtorg (uncontestably unconstitutional) provided evidence that “tainted” the conviction of Ivanov. The District Court on October 15 decided the constitutional issue in favor of the Government. It will soon set a date for a hearing on the factual question.

The Department of Justice’s Interest

The Justice Department has withstood some forty approaches from the Soviets over the years to take action to release Ivanov. State has pressed Justice almost as hard and with equal lack of success. Justice argues that it is not harboring vindictive motives nor does it fail to understand the international factors involved. Rather, this particular case just happens to present in the most favorable light the very important constitutional issue of wiretapping for national security reasons. A decision against the Government on this issue would severely hamper Justice’s investigatory responsibilities, so Justice argues.

Once the Supreme Court has decided the constitutional issue in the Ivanov case, Justice undoubtedly would not care whether Ivanov was then expelled from the country.

Next Steps. As soon as the New Jersey District Court decides the point of evidence, Ivanov is expected to appeal that Court’s decision on the constitutional point to the Third Circuit Federal Court. From the Third Circuit, the case would move to the Supreme Court at an un-hurried pace. However, the constitutional issue is virtually identical to the one in the case of Cassius Clay (Muhammad Ali), although Justice feels the Ivanov case is more favorable to its position. The Clay case will probably come before the Supreme Court within a year, and the Court may very well assume jurisdiction over the Ivanov case from the Circuit Court (prior to a decision there) in order to have the two cases decided at the same time.

State has been doing some internal studies on the idea of altering Ivanov’s bail provisions to permit him to return to the USSR (theoretically pending the conclusion of his appeal). State hopes that Justice might be more receptive to this approach, particularly since the Government on October 15 won the initial favorable decision on the constitutional point from the District Court. However, it is equally possible that Justice may argue that now that the case is finally nearing the point of getting to the Supreme Court for final decision (perhaps within a year), it is not the time to consider releasing Ivanov. In short, Justice may say that after six years, one more year won’t hurt anyone and this is the critical year.

1. Source: National Archives, Nixon Presidential Materials, NSC Files, Box 490, President’s Trip Files, Dobrynin/Kissinger, 1970, Vol. 3. Secret; Sensitive. According to another copy, Haig drafted the memorandum. (Ibid.)
2. In a memorandum forwarding the status report to Haig on October 28, Sonnenfeldt argued: “While I do not know what is in play at the moment, I strongly urge that any thought of exchanging Ivanov for the Generals should quickly be abandoned: Ivanov just happens to be a real spy, in contrast to the accidental intrusion of the Generals’ light aircraft; having secured the release of Ivanov by linkage to the Generals, (after years of unsuccessful diplomatic approaches), the Soviets would be given the incentive to hold American tourists, etc., the next time they want us to release another spy; there may be fairly strong (and righteous) resistance within the Justice Department to any such suggestion.” (Ibid.)
3. In a note to Kissinger on October 29, Haig noted “a little clarification of Soviet views on the Ivanov case.” On the basis of an attached telegram (6440 from Moscow, October 28), Haig reported: “As you can see, what they are pressing for is to have Ivanov released on bail so that the United States will not have to compromise on the constitutional principle. Obviously, he will never return.” Kissinger initialed the note. (Ibid.)
4. Kissinger indicated neither approval nor disapproval of this recommendation. He instead wrote the following response on the first page of the memorandum: “Issue was not a trade of Ivanoff for 2 generals but a general contribution to détente.”
5. Secret; Sensitive; Outside System.