Books in the Law
From Washington Lawyer, July/August 2014
By Joseph C. Goulden and Ronald Goldfarb
A Very Principled Boy: The Life of Duncan Lee, Red Spy and Cold Warrior
By Mark A. Bradley
Basic Books, 2014
Review by Joseph C. Goulden
One of the best espionage books in years, A Very Principled Boy, poses a psychological mystery: What demons haunted the brilliant mind of Duncan C. Lee? A Rhodes Scholar and Yale-educated attorney who went from a top Wall Street law firm to the inner circle of the Office of Strategic Services during World War II, where he spied for the Soviets while working at the right hand of OSS Director William Donovan.
Not until after the war ended did investigators uncover this secret part of Lee’s life. His contact with Soviet intelligence was through one of the more notorious figures in the “spy era” of the 1940s, Elizabeth Bentley, a member of the Communist Party USA who acted as a courier for the Soviet NKGB, predecessor to the KGB. She broke with the Soviets in November 1945 and named Lee, among dozens of other persons in the government, as witting sources of secrets she passed to the Soviets.
But Bentley lacked any hard evidence—documents or the like—to back her accusations. Lee wisely refused to take any papers out of the OSS office. Instead, he would commit key memos to his attentive memory—he boasted of an IQ in the 170s—and relate the information orally to Bentley at his apartment in the 3000 block of Dent Place NW in Georgetown. (Another Soviet spy of the era, Alger Hiss of the U.S. State Department, was not as cautious. He gave reams of documents to his underground contact, Whittaker Chambers—evidence that resulted in Hiss’ conviction and imprisonment for perjury.)
Once the first evidence of his NKVD link emerged, Lee performed a deft political flip-flop. Working for the renowned Thomas “Tommy the Cork” Corcoran, Lee played a seminal role in creating Air America, the CIA proprietary airline that played an important role in many covert Cold War operations.
Mark A. Bradley, a former CIA intelligence officer who is now a lawyer with the U.S. Department of Justice, performs a masterful job of exploring the tangled and confusing life of Lee. And he surveys the definitive smoking-gun proof of Lee’s guilt that the government possessed in the 1940s and 1950s but could not use without revealing our ability to decipher Soviet intelligence cables to Moscow. Bradley also makes skilled use of Soviet intelligence documents smuggled out of Russia by journalist and historian Alexander Vassiliev several years ago.
Lee boasted of a distinguished lineage. Two of his ancestors signed the Declaration of Independence. Another kinsman was Confederate General Robert E. Lee. His strongly religious parents were serving as missionaries in China when Lee was born.
At Oxford University, Lee made two discoveries. He courted, and wed, a very leftist Scottish woman named Ishbel Gibb. Perhaps because of her influence, he made a reappraisal of religion. He stunned his parents by writing, “I find the Communist Party a far nearer embodiment of what I regard as genuine Christianity than any organized church.” Further, he planned to join the party’s secret underground. Not doing so, he asserted, would force him into “ineffectual armchair pinkness,” which would be cowardly. According to NKVD documents unearthed recently, he and Ishbel joined the Communist Party in 1939.
The same year, after he finished Yale Law School, Lee went to work for Donovan Leisure, a prestigious Wall Street law firm headed by Donovan, who in a few years would be his boss at OSS. Here again, Lee had serious second thoughts. Lee worried that he would find it difficult to reconcile his dreams of working for what he called the “cause” and practicing on Wall Street. As he wrote his mother, “I am haunted by the specter of the Babbitt-brained lawyer and all he stands for.”
When the war began, Lee eagerly followed Donovan to Washington, D.C., and was assigned to a secretariat responsible for handling incoming reports.
Lee’s importance to the Soviets is revealed in a Soviet document dated September 8, 1942, which boasts of a source, code name “Kokh,” in the OSS. The cable states that “agent reports from Europe and all over the world go through him. He chooses among them and shows them to Donovan for his consideration. Unfortunately, U.S. code breakers could not decipher the cable and identify “Kokh” for several more years; hence Lee went undetected.
But Lee’s secret world began to crumble in the autumn of 1945 when Bentley broke with the communists and gave the first of a series of statements to the FBI. She related the same charges in testimony to Congress and grand juries.
Although her targets—and especially Lee—denounced her as deluded, even crazy, history proved her to be on target. As Bradley writes, “Twenty-nine Americans she named as Soviet spies appeared in the NKGB’s intercepted traffic. One of them was Duncan Lee.”
In his testimony, Lee admitted to knowing Bentley, but only casually, and not as a spy. He denied they ever discussed OSS affairs. He said much the same before a grand jury, which declined to indict him. Not until 1995 did the intelligence community release the intercepted Soviet cables from the 1940s, clearly branding Lee as a spy. By then, of course, Lee was dead.
But Lee’s problem in the late 1940s was that he bore the stigma of “spy,” the lack of prosecution notwithstanding. In what Bradley rightly describes as an opportunistic maneuver, Lee aligned himself with Corcoran, a fierce Cold Warrior and a prominent member of the so-called “China Lobby,” working to protect the struggling Nationalist Chinese government.
Corcoran—and through him, Lee—worked closely with Lieutenant General Claire Chennault, who during the war created the famed “Flying Tigers” air arm of the Nationalist military. Lee did much of the legal work that in effect privatized the air operations, which then flew both military and commercial cargoes in China. When communist forces ousted the Nationalists in 1947, Mao Tse-Tung laid claim to 83 planes that had been moved to Hong Kong, calling them the “sacred property of the People’s Republic of China.”
Gen. Chennault and partner Whiting Willauer warned that Mao would use the air fleet for paratroop assaults on Taiwan. They also struck a deal with the Nationalists to buy the planes. Lee did the paperwork. He worked “almost exclusively” on recovering the planes from 1949 to 1952. When money ran short, the CIA opened its coffers—an association that eventually marked the birth of Air America, which thereafter was a proprietary company.
The Red Chinese fought back in the Hong Kong courts, winning nine times. But the Privy Council in London, Britain’s highest court, ultimately upheld as legal the contracts drafted by Lee. As Willauer later wrote, “The importance to the Communist cause of obtaining these airlines cannot be over-exaggerated.”
But as Bradley asserts, Lee acted for motives other than patriotism. “To keep J. Edgar Hoover’s agents from knocking on his front door or the [House Un-American Activities Committee’s] investigators from slapping another subpoena into his hands, Lee had cloaked himself in the mantle of anticommunism and surrounded himself with men with unassailable anticommunist credentials. . . . As importantly, it had allowed him to dry-clean his conscience. Perhaps Lee believed, if his father was right about a forgiving God, he had finally broken even.”
But given the U.S. wartime alliance with the Soviets, did the stolen secrets really do any harm? Bradley’s answer is an emphatic “yes.” As he writes, “his intelligence alerted the Soviets to British and American diplomatic strategies for negotiating with Stalin over postwar Poland’s borders and the United States’ diplomatic activities in Romania and Bulgaria, especially with those nations’ pro-Western politicians, who were in great danger once they found themselves behind the Iron Curtain.”
Soviet penetration made an open book of the OSS. “It gave the Kremlin a clear look into the previously obscure activities of the foreign intelligence service of its most important wartime ally. As [author] John le Carré observed, an intelligence service discloses its own ignorance when it reveals its targets.” The exposure extended to the CIA when it was formed in 1947, given that it drew heavily on the OSS for manpower and operational techniques.
Lee spent his last years working abroad for an international insurance company. His wife tired of his constant affairs and divorced him (and married a man 17 years her junior).
Lee protested his innocence to the end, writing for his sons a “memoir” that tried to explain away the charges against him. In the end, even his sons were unconvinced of his innocence. The family gave Bradley documents that he uses in the book.
Lee sought relief in heavy drinking. He died in 1988. Perhaps his only solace was that Donovan never denounced him, commenting only that he was a “very principled boy.”
Classify this as a five-cloak, five-dagger read.
Joseph C. Goulden writes frequently about intelligence affairs.
The Rule of Nobody: Saving America From Dead Laws and Broken Government
By Philip K. Howard
W.W. Norton & Company, 2014
Review by Ronald Goldfarb
Philip Howard’s books, The Death of Common Sense, The Collapse of the Common Good, and Life Without Lawyers, were popular successes that led to his founding and chairing the citizens’ organization, Common Good, dedicated to advocating for smarter laws and less bureaucracy. In The Rule of Nobody, Howard continues his advocacy for simplified codes that place responsibility and accountability on identifiable officials, rather than relying on rigid rules that frustrate innovation. His points ring with painful truth, as we all know from our own frustrating experiences with bureaucrats and their maddening mountains of rules.
Howard argues that well-intended but exaggerated regulations have led to rigidity in our rule-making that curbs innovation. Unintended consequences and perverse priorities have been the result of reformist ideals. We are a nation tied up in red tape. Worse, our culture has changed as a result of a bureaucratic morality that prefers protocols to morality. Law too often fails to serve democracy as it honors the institutions over the public those institutions were created to serve, and balkanizes authority.
Howard argues that “categorical proscriptions don’t work well for modern regulation,” and that the proper role of law is “not dictating daily choices, but safeguarding against people transgressing outer limits.” Howard cites troubling examples that lead him to conclude that too many people comply more than perform. They are more concerned with making a record of their abiding by regulations than servicing the constituents of their institutions, he posits. So a cafeteria worker, technically, is guilty of theft for feeding a hungry student, and a lifeguard is criticized for saving a drowning person at an adjoining beach. Absurd results, obviously. Howard offers many—too many, after a while—examples to make his points.
Howard calls for simplified codes and greater discretion for administrators. He presents alarming anecdotal examples of regulation gone amok, of ideology trumping practicality. Trouble is, Howard’s conclusions are problematic: “replacing thick rule books with a few dozen goals and principles.” It’s easier to point out excessive bureaucratic blunder and inefficiency—Howard cites many embarrassing examples—than to jump to the equally worrisome conclusion that those same bureaucrats we criticize ought to have more discretion and fewer guidelines.
Howard argues, for example, that restoring judgment to official decisions requires “trusting a system of government rooted in human responsibility.” He concedes that the rule of law requires protecting against arbitrary state actions and assuring predictability in legal norms. But he doesn’t demonstrate how his reforms would not lead to an idiosyncratic, if not prejudicial, administration of laws. For example, the country still argues about the prejudicial administration of voting laws. Howard’s proposed system would play into the hands of those very administrators who already administer these laws in prejudicial ways.
That said, Howard’s red tape case histories—Medicare and nursing home regulations, for example—boggle the mind. So does the frustrating inability of executives to act and solve problems. Most of us have recoiled at car licensing office procedures, and regulations governing taxes that require expensive deciphering by experts. A court determines that an agency has failed to do what laws require, but it has limited powers to assure its order is followed. A governor sees that a juvenile detention facility is unused, but costly to maintain; yet, he or she can’t simply close it for a year because of interfering union laws.
Here is the conundrum of Howard’s thesis. It is “the human element in decision-making” that Howard calls for, and that is the center of his complaint about the numbness of the American legal system, which also is the heart of what we worry about in that same legal system—the questionable use of police powers, for example.
Howard’s book brings to mind the sentencing reform debates after the President’s Crime Commission Report concluded in the LBJ era. The concern then was that judges were acting arbitrarily and capriciously, handing down sentences that varied widely and provided little guidance to defendants. Critics of those practices called for and applauded new sentencing guidelines that attempted to rationalize sentencing and eliminate prejudicial practices. Others warned then that this approach would lead to higher sentences, and they were right. Judges tended to sentence on the high side, and it turned out many defendants were better off with judges whose discretion, while idiosyncratic, was preferable because judges could individualize sentencing based on the special nature of varied situations. Part of the problem of long sentences for drug offenses resulted from that “reform,” as judges complained their hands were tied and they had to hand down sentences they believed were excessive. Howard blames prosecutors for overcharging offenses that led to larger sentences, but that is a separate problem and not the cause of judges’ sentencing dilemma. The point is that the policy hand swings from discretion to regulation regularly, and in each case the flaws become manifest.
Howard reminds me of a wise old-fashioned federal judge I tried cases before who told juries before he gave them instructions, “I wish I could tell you to go out and do justice by these parties, but I can’t.” Then he would use the standard instructions judges give juries to make the official record they must abide by.
The problem with Howard’s solutions to the important problem he documents is that they leave readers confused, in agreement with the absurdity of the problem he identifies but uncertain where to go to avoid it. We already have a proper distrust of government officials with broad discretionary power. Do we want to provide them with more? Keep in mind that general language provides uncertain meaning and, thus, is not self-executing (i.e., what is “cruel and unusual?”).
Howard ends his book with several proposals—some smart, some farfetched—that he would bring about through amending the U.S. Constitution. A mandatory sunset law every 15 years is a very good idea. Giving the president authority to do more through executive orders is a questionable addition to powers he already has. Asking judges to prevent frivolous litigation, beyond more rigorously doing what they already do, is also questionable. Citizens’ Councils to oversee the legal system can’t hurt, although the idea seems to be undercut by Howard’s concurrent view that we have bureaucratized our government excessively already. And all his observations, like those of other scholars who have pointed out perversities in our current constitutional system, are frightening when considered in the context of a constitutional convention, one of the proscribed ways to amend the Constitution. Given current politics, that would be a disaster!
Howard’s book is long and repetitious on pointing out the problems, exacerbated by a too fluid format, and too brief on solutions. But Howard is a caring critic, and his call for citizen groups to ally in the fight for responsible government should be heeded. One worries that his calls for action won’t survive the current climate, while at the same time, we can hope it will.