http://www.thenation.com/doc/20090525/guttenplan?rel=emailNation
By D.D. Guttenplan
This article appeared in the May 25, 2009 edition of The Nation.
May 6, 2009
D.D. Guttenplan wishes to thank Stewart Cass and Victor Navasky, who
read a draft of this essay; Dr. Svetlana Chervonnaya, who pointed to
documents not cited in Spies; and Alexander Guttenplan, who patiently
translated materials from the Russian.
--
The last time I saw Alexander Vassiliev he was slumped in a seat at
the Royal Courts of Justice in London. A small, fair-haired man
wearing a dark suit and a black shirt, Vassiliev was an ex-KGB
officer who had helped Allen Weinstein, an American historian whose
Perjury (1978) convinced most Americans that Alger Hiss had indeed
been a Soviet spy, to write another book. The fruit of their
collaboration, The Haunted Wood (1999), was hailed by the Los Angeles
Times as "a small arsenal of smoking guns." In The New York Review of
Books, Thomas Powers declared that "anyone who wants to know what
Hiss and his friends were up to can find a rich, convincing, and
vivid report in The Haunted Wood." Hiss, who'd died in 1996 still
protesting his innocence, was already beyond redemption. For
Weinstein, the acclaim merely accelerated his rise from the
comparative obscurity of the Smith College history department, via
the National Endowment for Democracy, to his appointment by President
George W. Bush in April 2004 as archivist of the United States. The
project seemed to have brought Vassiliev only grief.
Not only did Weinstein, who couldn't even read Russian, claim top
billing; he used Vassiliev's findings on Hiss in a 1997 reissue of
Perjury without permission. Vassiliev was so angry that he wanted to
sue, and turned for advice to The Nation's Victor Navasky, well known
both as a defender of Alger Hiss and as a critic of Weinstein's
scholarship and ethics. Navasky replied that he was "reluctant to
collaborate in any legal actions vis-à-vis Weinstein" but was curious
about Vassiliev's grievance. "In my universe," Vassiliev replied in
an e-mail, "the thing he did to me is called theft, and thieves get
punished. I spent 2 years in the KGB archives, doing the research for
The Haunted Wood. I gave up my career as a TV presenter and newspaper
columnist for it. I smuggled from Russia hundreds of top secret
non-declassified KGB documents, and therefore I can't return there
now." But soon enough, still living in exile in London, beached by
the tides of history, Vassiliev would find a new outlet for his anger.
In the fall of 2000 John Lowenthal, a retired Rutgers law professor
who had worked as a volunteer on the Hiss defense team, published a
lengthy analysis of the latest evidence regarding Hiss in
Intelligence and National Security, an obscure British quarterly.
After Lowenthal posted on Amazon the portion of his review dealing
with The Haunted Wood, Vassiliev decided to sue--not Lowenthal but
the quarterly's British publisher, Frank Cass, and Amazon. British
courts are notoriously friendly to libel plaintiffs; for one thing,
the burden of proof is on the defendant. (In the United States,
Vassiliev would have had to prove that Lowenthal's criticisms were
untrue.) Vassiliev was so confident of an easy victory over
Cass--followed by a lucrative settlement from Amazon--that he
rejected repeated offers of four-figure sums (but no apology) from
Cass's lawyers. The trial began on June 9, 2003.
When Lowenthal called me and asked if I'd be interested in reporting
on the dispute, I resisted. I'd always thought there was something
vaguely comical about our elders' obsession with Alger Hiss. And
after many years of working on a biography of I.F. Stone, I'd learned
a great deal about the ambiguous history of American Communism. My
stubbornly uninformed view was that Hiss was probably at the very
least a secret Communist--I'd come across enough of those myself,
including Nathaniel Weyl, who claimed to have been in the same group
as Hiss in the 1930s. So why was I there in court, studying
Vassiliev's posture while sitting next to Victor Navasky, who'd flown
to London to testify for the defense? Because there was something
deeply compelling about John Lowenthal, who informed me during a
series of telephone calls that he had stopped his chemotherapy for
terminal throat cancer so he could concentrate on the case. I felt I
owed it to John at least to witness his day in court.
After four days of arguments, testimony and cross-examination, the
jury first had to decide whether Lowenthal's claim that Weinstein and
Vassiliev "omit relevant facts" and "selectively replaced covernames
with their own notion of the real names" was indeed defamatory.
Likewise, Lowenthal's suggestion that Vassiliev, "if he's honest,"
would--quoting Boris Labusov, a press officer of the SVR, the
successor to the KGB--have to concede that "he never met the name of
Alger Hiss in the context of some cooperation with some special
services of the Soviet Union." Since John freely admitted he'd
intended to defame the authors of The Haunted Wood, that part was easy.
The next hurdle was the defense of fair comment. Though he didn't
need to prove that everything Lowenthal had written was true (which
would have meant proving Alger Hiss had been framed), Lowenthal's
publisher still had to show that "an honest person could express such
views in the light of the material which Mr. Lowenthal knew at the
time the article was published." In other words, the jury, after
being walked through the evidence, both from the recently released
secret American code-breaking program known as VENONA and from the
KGB archives that Vassiliev claimed to have transcribed, had to
believe that a reasonable person could still consider the case
against Hiss not closed. These were ordinary British men and women,
not historians, and just in case the defense couldn't convince them
that "KGB documents had been misconstrued" to make it appear that
Hiss was a spy, Cass's lawyers also claimed that Lowenthal's review
was covered by "qualified privilege"--the greater latitude allowed
when responding to an attack, in this case the attack on Hiss.
Vassiliev, who acted as his own lawyer, was not an impressive
witness. On the arcane but crucial question of whether, in his
unfettered trawl through KGB archives, he'd ever seen a single
document linking Alger Hiss with "Ales"--the code name of a Soviet
agent in the 1940s who, Weinstein and Vassiliev insisted, had to be
Hiss--he admitted he hadn't. He also failed to provide a satisfactory
account of just how he'd managed, despite being required to leave his
files and notebook in a safe at the KGB press office at the end of
each day, to smuggle out the notebooks with his extensive
transcriptions of documents, which, he explained, he couldn't even
ask to have photocopied, because the contents were considered Russian
state secrets. Even so, with the law stacked heavily in his favor,
and with testimonials to the certainty of Hiss's guilt from a
veritable pantheon of historians (none of whom, however, including
Allen Weinstein, deigned to testify in person), Vassiliev had every
reason to expect victory. Which made the jury's verdict, delivered on
Friday, June 13, 2003, such a blow.
Finding that Lowenthal had indeed implied a deliberate misreading of
KGB documents regarding Hiss, the jury, based on what they'd seen and
heard of the evidence, agreed that this was a conclusion an honest
person might reach. The trial judge, Sir David Eady, who in recent
years has been widely criticized in the British press for his alleged
bias in favor of libel plaintiffs, also ruled against Vassiliev,
holding that Lowenthal, in defending his friend Alger Hiss against
the charge that he had betrayed his country, was also covered by
qualified privilege. Vassiliev absorbed this unfolding catastrophe
without showing any emotion. Only when the judge pronounced "an award
of costs" did his shoulders seem to collapse under the weight of what
he'd brought on himself.
--
About D.D. Guttenplan
D.D. Guttenplan, who writes from The Nation's London bureau, is the
author of American Radical: The Life and Times of I.F. Stone (Farrar,
Straus and Giroux).
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