Spies: The Rise and Fall of the KGB in America (9 page)

This time I got upset. Lowenthal's allegations at Amazon.com damaged both my credibility and the sales of The Haunted Wood, and they
had a much bigger impact than an article in some obscure journal. I
searched the Web and discovered other unpleasant things. "Venona and
Alger Hiss" had been posted on at least two Web sites: that of the British
Universities Film and Video Council and one devoted to Alger Hiss at
New York University. Intelligence and National Security turned out to be
a respectable journal, and it placed an extract about The Haunted Wood
on its own Web site to promote the article. This nastiness was spreading
like a cancer. As for John Lowenthal, he wasn't a nobody; he was a former
lawyer and friend of Alger Hiss and a politically motivated crusader.

In his article Lowenthal made several allegations that were particularly painful to me since I was the one who had done the research. The
first one: "Press officer Boris Labusov was still with the Foreign Intelligence Service when The Haunted Wood was published (1999), and I
asked him what he thought of it. He said, `if you want to be correct, don't
rely much on The Haunted Wood.... When they put this or that name
in Venona documents in square brackets, it's the mere guess of the coauthors."'

At the last stage of work on The Haunted Wood either Allen Weinstein or the editors decided to replace cover names in the quotations from the
KGB files with real names in brackets for the sake of the simplicity of the
narrative. I learned about it only when I received copies of the book. I
had written draft chapters on the basis of the files, translated them into
English, and given them to Allen. He rewrote them, using additional material he had available, and sent them back to me for review. I made my
comments and sent them to Allen. However, I never received galleys
from the publisher, and I thought replacing the cover names with real
names in brackets was a bad idea-it distorted the quotes and opened us
to criticism. Yet Lowenthal's saying that it was a "mere guess of the coauthors" was a shameless lie. I had access to agents' personal files that
contained their real names, and Boris Labusov knew it since he was sitting in the same room with me and sometimes brought me files from "the
Forest." I had also found Anatoly Gorsky's list with cover names and real
names. Moreover, a few documents contained real names either in the
text or in the margins. (I am much more comfortable with the convention
adopted in this book, where the original cover names are retained in quotations and the real names added in brackets on the first occurrence (not
replacing the cover name) just so the reader does not get confused as to
who is "Pilot," who is "Aileron," and so on.)

The second allegation: "The co-authors, said Labusov, `were wrong
when they put the name of Alger Hiss in the places where they tell about
somebody who cooperated with Soviet special services, yes? So we are
quite right in saying that we, the Russian intelligence service, have no
documents ... proving that Alger Hiss cooperated with our service somewhere or anywhere.-

That was a lie too. I found documents mentioning Alger Hiss under
his real name in a context that made it clear he had taken part in Soviet
espionage. And where did I get the quotations? There could be only one
conclusion from what Labusov had said about me: I invented them.

The third allegation, another quote from Labusov: "`Mr. Vassiliev
worked in our press service just here in Moscow, but, if he's honest, he
will surely tell you that he never met the name of Alger Hiss in the context of some cooperation with some special services of the Soviet Union."'
Now it was about my personal honesty.
- - - -- - - - -- -- - -

The fourth allegation was made by Lowenthal himself: "He [Alger
Hiss] got the cover name `Lawyer' from Weinstein and Vassiliev." Not at
all. Hiss got his cover name from Soviet operatives, and I didn't invent it.
(In this book we have translated this cover name as "Jurist.") And the
allegation was repeated in Lowenthal's review on Amazon.com. By this time The Haunted Wood was the most important thing I had done in my
professional career. The book had changed the lives of my wife, my son,
and myself. We had left our native country. Now someone was saying the
book was a lie and I was a liar. I wanted to sue everyone: Lowenthal, Intelligence and National Security, Amazon.com, the Foreign Intelligence
Service, New York University. I thought Lowenthal had simply fooled the
British Universities Film and Video Council, and it probably didn't know
what it had gotten into. I didn't want the council's blood. I sent it a letter,
and it immediately removed the article from its site.

I couldn't afford a lawyer, and I went to the High Court of Justice in
London (only the High Court hears defamation cases in England) to get
help and advice. A lawyer there heard my story and said that I had a case.
He suggested I get in touch with some legal firms in London since some
of them might be interested in handling my case on a no win, no fee basis.
I did, and they weren't. I decided to file suit on my own as a litigant in person (in the following two years I learned a lot of new English words). I
went to a book shop and purchased some books as guides. I dropped the
SVR from my list since the idea of bringing Russian spies to justice
seemed a bit supernatural. Where would I send my claim? To the SVR
station chief in London? Well, what was his name? Also, I had nothing
against Boris Labusov personally. I knew him as a decent man, and I knew
he was just doing his job.

I also dropped New York University and John Lowenthal from the
suit. The university seemed a difficult case since it was in America, where
the defamation law was far more relaxed than in England. As to Lowenthal, I decided to deal with him later, after I finished with Amazon.com,
which had a branch in Britain, and Frank Cass, the British publisher of
Intelligence and National Security. According to the defamation law of
England and Wales, the fact that these two had repeated what Boris
Labusov had allegedly said didn't give them immunity from prosecution.
It would have made my case much more difficult if they had given me a
chance to respond to Labusov's and Lowenthal's statements in the same
publications, but they hadn't. The journal had never gotten in touch with
me, and as far as I could tell from Lowenthal's article, it hadn't talked to
Allen Weinstein either.

I started two separate proceedings against Frank Cass and Amazon
.com in July 2001. Intelligence and National Security then offered me a
chance to respond to Lowenthal by writing my own article for it, but I refused because I believed that playing tit for tat with someone like Lowenthal was futile.

I realized I would need my notebooks as evidence during the trial. I
asked a person in Moscow I could trust to send them to me by DHL, and
I received all eight of them. The litigation took almost two years. At pre-
liminaiy hearings the defendants managed to get rid of important paragraphs in my particulars of claims, and each hearing I lost cost me several
thousand pounds because I had to pay the defendants' legal costs. They
were wearing me down financially. All our savings evaporated, and I had
to borrow money from my bank.

During the litigation Frank Cass presented a number of documents
as evidence, including my correspondence with Susan Butler; correspondence among Alger Hiss, John Lowenthal, Dmitri Volkogonov, and
the SVR; and some papers prepared in the process of reviewing John
Lowenthal's article for publication in Intelligence and National Security.
I found useful comments about the journal's partisan and polemical tone
and a warning that it "needs to be less pejorative when dealing with its opponents." Several commentators had suggested that Weinstein be asked
to respond. Rather late in the proceedings, in August zooz, I received
under discovery a transcription of the interview between Lowenthal and
Labusov; it showed that the latter's comments were not in fact as straightforward as they looked in the article: Lowenthal was pushing and trying
to put words into Labusov's mouth, while Labusov was trying to avoid direct answers, saying "No comment," and constantly recommending that
Lowenthal get in touch with me in London. Some answers were unintelligible, at least one was misquoted in the article, and about twenty seconds of the interview were "accidentally erased." The interview was
substantially distorted in the article.

At one point Labusov protested to Lowenthal, "You know, you push
me to some criminal deed," a comment reminiscent of what General
Volkogonov had told the New York Times in 1992: "His attorney, Lowenthal, pushed me hard to say things of which I was not fully convinced."

Not surprisingly, John Lowenthal described in his article only the first
part of the Volkogonov story, in which Volkogonov "enjoyed unrestricted
access to Russia's archives"; he had examined not only the KGB and presidential archives but also the GRU archives and reported that "there, too,
no traces of Alger Hiss have been found." The second part of the story,
in which the general admitted he had lied because he wanted to be
Mother Teresa to Alger Hiss, was omitted.

My strategy was clear: to demonstrate to the jury that the defendant
Frank Cass had defamed me and in effect called me a liar by publishing
an article written by a fanatical Hiss defender and personal friend rely ing on distorted comments from the Russian Intelligence Service. Cass
had been warned several times by reviewers and editors to tread carefully but had not and had uncritically relied on the word of an employee
(Labusov) of an espionage agency whose own principles precluded an
honest response, as even Lowenthal had acknowledged in the article.

Frank Cass based its defense on three points. First, it argued "qualified privilege": it "had a moral or social duty" to publish Lowenthal's
piece. Second, it asserted that the statements about which I was complaining were "fair comment upon a matter of public interest." Finally, it
claimed justification: "the words complained of are true in substance and
in fact insofar as they meant and were understood to mean that the presentation of the case against Hiss in The Haunted Wood (of which the
Claimant was a co-author) was unsound, defective and partisan, and that
accordingly the Claimant was an unreliable author." (Those who are interested in the details can find all the documents in the archives of the
High Court of Justice in London, Queen's Bench Division.)

In January 2003 Frank Cass's lawyers offered to settle the monetary
claim for a little more than £2,000 and promised not to republish the
Lowenthal article. Overconfident about winning the case, I rejected the
offer. I also wanted an official apology, and Frank Cass wasn't offering
that. Plus I wanted to see John Lowenthal face-to-face in court, first as a
witness and later as a defendant, and I thought that a settlement would
undermine my chances to sue him personally. In addition, I wasn't sure
how a settlement in this case would affect my case against Amazon.com.
I also turned down a request from Cass for a meeting and a May 2003
offer upping the proposed settlement to £7,500 but still without an apology.

What I should have then done was to ask the court for another preliminary hearing on the subject of malice on the part of Frank Cass. Originally it was part of my claim, but it had been tossed out in a preliminary
hearing. With new documentary evidence provided after that earlier
hearing, such a claim would, if accepted, require Frank Cass to base its
defense solely on justification, making qualified privilege and fair comment moot. The problem was money. By that time I was heavily in debt
and didn't know where to get £7,000 or £8,ooo, which I would have
needed to pay the defendant's legal costs if I had lost the hearing again.
In any case, buoyed by the two offers of settlement, I believed I could
vin.

The trial started on 9 June 2003 before judge David Eady, who specialized in defamation cases, and a jury that consisted of seven women and five men. Unfortunately, I had no right to tell them that Frank Cass
had offered to settle twice. I presented my case first, laying out my arguments and being cross-examined by Cass's lawyer, Andrew Monson. I
thought I acquitted myself well, explaining the development of the book
project, my role, and my research methods. Then, for two days I crossexamined the defense witnesses, including Butler, who admitted that she
had praised The Haunted Wood in order to "disarm" me and had misquoted me in her article in The Nation. John Lowenthal said it had never
crossed his mind that Russia's Foreign Intelligence Service in the person
of Boris Labusov could have lied to him. That came from a man who in
the Intelligence and National Security article had written, "The professional involvement of intelligence agencies in deception and disinformation, character assassination and murder, lies, forgeries, and burglaries
pervades their institutional culture and dictates their policies of secrecy."

To demonstrate that he had tried to contact me, Lowenthal offered a
fax he had sent in 2000 to an address where I had not lived since 1997. I
asked him why he hadn't tried to find me through other channels, such
as Allen Weinstein or Random House, before writing defamatory statements about me. Lowenthal, who claimed he had written his article over
a four-year period from 1996 to 2000, said he was very busy. He admitted that he had written inaccurately when he claimed to have done research in KGB files. Since he did not speak Russian, that was plainly a lie.
Moreover, his claim that he had relied on someone else to do the research
was also inaccurate; there was no evidence of that.

On the final day of the trial, Friday, 13 June 2003, judge Eady
summed up the case for the jury and instructed it about the procedure for
reaching a verdict. It was a long speech, and somewhere in the middle of
it I started realizing that I had lost the case. Judge Eady asked the jury
members to answer three questions. To the first one-"Do you find that
the words are in their context defamatory of Mr. Vassiliev?"-they answered "Yes." To the second one-"If yes, do you find that the defamatory allegations were expressions of opinion or were allegations of fact?"
-the answer was "Opinion." And to the third one-"If opinion, were
the comments such that an honest person could express them in the light
of what Mr. Lowenthal knew at the time his article was published?"they answered "Yes." So the "fair comment" defense had worked. There
was no need to go to the question of justification.