Directed by Steven Spielberg, 'Bridge of Spies' is a dramatic thriller which tells the story of James Donovan (played by Tom Hanks), a Brooklyn insurance claims lawyer who finds himself thrust into the centre of the Cold War when the CIA sends him on the near-impossible task to negotiate the release of a captured American U-2 pilot.
The way Donovan conducted his defence of Rudolf Abel set American constitutional principle against anxieties about subversion and national security in the Cold War.
Should America stick to its rules even in a crisis? ‘Yes,’ said Donovan, ‘we must or we undermine the constitutional system we live by.’ ‘Not necessarily,’ said many Americans, including senior figures in the legal profession, who were as outraged as the wider public that a known Communist spy should receive America’s full constitutional protections. The senior partner in Donovan’s law firm accepted that the formalities of law should be adhered to but that was as far as he expected Donovan to go.
In the event, with Donovan’s help Abel received the full range of American legal and constitutional rights and protections, or, as the lawyers put it, he was granted ‘due process of law.’ Not only did Abel have the benefit of an energetic and skilful defence in court by an expert trial lawyer, Donovan argued successfully against the death penalty for Abel and even pursued an appeal to the United States Supreme Court against Abel’s conviction for espionage. Donovan was almost successful. The Supreme Court only upheld the conviction by a majority verdict of 5/4.
The grounds of his appeal were highly technical, based on the 4th Amendment of the Constitution which prohibits unreasonable searches and seizure of a suspect’s property. However, the case as a whole raised an even more fundamental matter of constitutional principle – whether the Constitution protected non-citizens. Donovan insisted the Constitution applied as much to non-Americans as to American citizens, irrespective of the crime committed or of the existence of security threats to the United States. In the film, when challenged about granting Abel the same constitutional rights as American citizens Donovan referred to a Supreme Court case from the 1880s.
He doubtless meant Yick Wo v Hopkins (1886) which argued that the famous clause of the Fourteenth Amendment granting Equal Protection of the laws (designed originally to extend rights to former slaves) was ‘universal in its application, to all persons within the territorial jurisdiction, without regard to differences of...nationality.’ Just to press the point home, the Court also noted that the Due Process clause of the same constitutional Amendment, applied to ‘all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary or permanent.’
Of course that did not settle the matter for all time. There is no final word in American constitutional debate. Interpretation changes with time, circumstances and the vagaries of individual cases. Even when a principle is well established in theory, there is an inevitable temptation in practice to bend it, especially when it appears to favour America’s enemies. Senator Joseph McCarthy was dead by the time the Abel case came to court but the anti-communist gale hadn’t yet blown itself out.
The Abel case wasn’t the first time and it wouldn’t be the last when foreign dangers would raise serious questions about constitutional rights for foreign nationals. Anxiety about the activities of foreign agents and foreign ideas goes back to the passage of the Alien and Sedition Acts of 1798, when the aim was to insulate America from the French Revolution. In modern times the rights of non-citizens came under threat again in the Red Scare which followed the First World War when hundreds of foreign radicals were deported in the absence of due process proceedings.
The decisions to deport these aliens were made by immigration inspectors in secret hearings in which the accused were not formally charged with crimes and were denied access to legal defence. This time it was the Russian Revolution which was source of American fears.
Once again after 9/11 the question was raised whether foreign nationals who had committed terrorist acts against the United States, or were planning to, should have the same legal rights as Americans. No, said Vice President Dick Cheney, using arguments similar to those applied by many Americans to the Abel case. In justifying the introduction of military tribunals to try suspected terrorists he said that ‘somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans – men, women, and children – is not a lawful combatant. They don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process.’ The shock of a direct attack on American soil plus the sheer number of dead explains the emotional fervour expressed in this most recent episode of America’s constitutional drama.
Donovan’s tactics in the Abel case went to the heart of historical debate about American political and constitutional values. Significantly, in this case the accused did receive equal protection of the laws and due process, and this at a time of high anxiety about nuclear war and internal subversion. But Donovan paid a price for upholding principle. He was attacked verbally (though not physically, as in the film) for supposed Communist sympathies. As ‘Bridge of Spies’ shows, the US Constitution is serious business not just a set of abstract rules.
Bridge of Spies is in cinemas now.
Richard Crockatt is Emeritus Professor of American History at the University of East Anglia where he specialised in the Cold War, US Constitutional History, and post-Cold War international relations. He has published The Fifty Years' War: The United States and the Soviet Union in World Politics 1941-1991 (Routledge, 1995); America Embattled: September 11, Anti-Americanism and the Global Order (Routledge 2003); and After 9/11: Cultural Dimensions of American Global Power (Routledge 2007). He is editor of British Documents on Foreign Affairs, the Foreign Office Confidential Print , 9 Volumes,1940-1950, University Publications of America, (1999- 2003). His new book, due out in 2016, is 'A Salutary Moral Influence': Einstein and Twentieth Century Politics (Oxford University Press).
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