Cassidy's Run (15 page)

“We have a very nice life,” she said. “But we can never replace what Mark was to us. You don’t forget.”

Soon after her husband’s death, Julie Kirkland sat down to write a private account of all that had happened. As if entered in a diary, she recalled her feelings in the days before Mark’s death, and afterward. “Ever since Ron Williams, Mark’s best friend, was killed last year I’ve taken to worrying and being fearful for Mark,” she wrote. “He has been working undercover and I know so little about his daily activities any more. I’m insecure about it.

“We had an argument the morning he left. . . . I feel bad about it now, I wish I hadn’t been upset. We smoothed it over though and I hugged him a lot. Kenny was so sweet—hugged Daddy a lot, too. I still worried—mostly I think because I don’t understand the case—Top Secret. I hated us not sharing. . . .

“The days were sweet with the babies. I’m used to being on my own with them. Mark is gone a lot and me and the little boys are great buddies.

“I planted flowers around the front of the house. Just took care of the boys and home. Mark called every night.”

Then came the entry for August 25. She wrote of her growing fear that night, and her call to the FBI operator, who sounded odd and obviously knew more than she was saying. “The minutes ticked by like hours. I was cold and nervous. I began praying, but nothing helped. . . . Mark
always
called me from the field.”

“Sometime between 11–12 I heard cars in the drive, not one, but several. I was panicky. My heart sank. I pleaded with God to stop this from happening, to please, please not take my husband from me. But I knew it was happening.”

Then came the knock on the door that, at first, she could not bring herself to answer. She sat on the top step of the stairs, knowing what it was, and finally forced herself to go down and answer the door.

When she received the horrific news from John Shimota and the other FBI men, she wrote, “I kept saying over and over ‘It can’t be true, it can’t be true.’ ‘What about our boys? Won’t they ever know their father?’ . . . I was shaking all over. Very cold still. My teeth chattered.

“Then John said Tren was gone, too.”

The next few days were a blur. Her father, neighbors, people from church came to comfort her. A close friend, Barbara Olsen, took care of the boys. She slept little.

Alone at the funeral home by Mark’s coffin, she looked at her husband for the last time. “By the side of his casket I promised him I would raise good men he would be proud of. And I will.”

Then she kissed him good-bye.

The next day she took Mark Kirkland home to Utah. At the graveside, “I thought Mark would have loved this day. It was a breathtaking day, blue skies, wispy clouds, pleasant temperature, breezy.” They buried him next to his father, below the mountain in Centerville where he had spent his childhood.

Back in Minnetonka, Julie finished writing.

We are alone now—me and Kenny and Chris. In a big old antique house in Minnesota. What happened to the dream we started only five and a half years ago? I don’t know why this happened. I do know we will be OK. And Kenny and Chris will be good men someday. They are such perfect little boys already.

I had the FBI insignia carved on Mark’s gravestone. I want anyone who sees it to know how much he loved America and believed in what he was doing.

He died being an FBI agent—what he always wanted to be. He died serving others. I wanted him to be remembered as a husband, father, and an FBI agent.

—Sept. 1977

Julie Kirkland

C H A P T E R: 17

SHOW TIME

For Phil Parker,
the tragic death of the two agents was a severe emotional blow. He felt a personal responsibility, asking himself over and over whether he might have been able to act sooner and do more to bring about an arrest. Had he done so, he thought, the accident might never have happened.

Parker had flown to Minneapolis several times to confer with Kirkland. The two had become good friends, a bond strengthened by their shared determination to roll up the
PALMETTOS
.

But the plane crash was more than a torment for Parker, it was also a catalyst. He had been importuning the Justice Department for more than a year to act on the case, and now he intensified his efforts. The time had come to move, he argued, to close out the operation that had begun almost two decades earlier when Joe Cassidy was first dangled to the Russians on the volleyball court.

Moreover, the fatal accident itself posed a potential danger to the operation. Parker and others were alarmed that the crash of the Cessna might tip off the
PALMETTOS
to the fact that they were under surveillance. The remote lake in northern Minnesota where the plane had gone down was near where the Lopezes were camping. If the couple heard reports or read news stories about the crash and the loss of the two FBI agents, they might connect it to their presence in the area and try to flee.

Aware of this new danger, Parker made certain that the bureau continued to keep a close watch on the Lopezes. In Minnesota, Dennis Conway took over the
PALMETTO
case. He and Kirkland had been good friends; Conway had been one of the agents who came to break the news to Julie the night of the plane crash. Conway, who grew up in Sioux City, Iowa, had played football for Notre Dame. “We called him ‘No-Neck’ because he was built like a fireplug,” Phil Parker said. “He was an outstanding agent.”

Parker still hoped, as did Conway, that Lopez would lead the FBI to a spy or spies in the GRU’s network in North America. But it never happened, and the FBI was increasingly frustrated.

“They took some funny trips,” Parker said. “There were some suspicious activities. Their actions on some of the trips they took to northern Minnesota indicated they were watching for surveillance. But we never saw them clear a drop or meet anyone. We don’t know why they were driving to Canada when Mark was killed.”

To move the case forward Parker needed approval at a higher level. Although most Americans probably view the FBI as an all-powerful agency that can arrest spies when it wants to, in fact, in sensitive cases involving national security, the bureau takes its marching orders from the Justice Department.

And in 1977, that meant John L. Martin.

For twenty-four years, until he retired in 1997, Martin was the official who decided which spies to arrest and prosecute. He also orchestrated a number of East-West spy swaps during the cold war. Working in the shadows and unknown outside the closed world of intelligence, Martin chose which espionage cases would be prosecuted and make the front pages and the nightly news. The rest never became public. As head of the internal-security section of the department’s criminal division, he was the official who determined, in effect, whether the spies came in from the cold.

On the couch of his office at the Justice Department, Martin kept a stuffed wolf in sheep’s clothing, a gift from fellow prosecutors. Its meaning was unmistakable; secured to the wolf’s forehead was a red star.

Within the FBI, some officials regarded Martin as overly cautious; they felt he allowed the prosecution only of cases he was sure the government could win. Over his career, however, Martin had cleared the way for some big wins: John A. Walker, Jr., who headed the notorious family ring of navy spies that sold codes to the KGB, convicted and sentenced to life in prison; Jonathan Jay Pollard, convicted of spying for Israel and sentenced to life; Ronald Pelton, a former National Security Agency official who sold secrets to the KGB, sentenced to life; Richard Miller, the first FBI agent to be convicted of espionage, sentenced to life; Aldrich H. Ames, the CIA supermole, sentenced to life for betraying the CIA’s Soviet agents, causing ten to be executed; and Christopher Boyce and Andrew Lee, who sold satellite secrets to the Russians and whose story was told in the book and movie
The Falcon and the Snowman
—Lee was sentenced to life, Boyce to forty years.

Some got away. Edward Lee Howard, an ex-CIA officer who revealed the secrets of the agency’s Moscow operations to the KGB, escaped to the Soviet Union. And Felix Bloch, a State Department official suspected of spying for the KGB, was subjected to a media circus after a news leak identified him; he was dismissed from his job but never indicted.

Martin, raised in upstate New York, joined the FBI after he graduated from Syracuse University Law School in 1962. He investigated the mob in New Orleans, then was sent to Mississippi to assist in the probe of the 1964 murder of three civil-rights workers. He left the FBI in 1968 to join a Washington law firm, but three years later went back into the government as an attorney in the Justice Department. When he took over the internal-security section, few spies had been prosecuted; government intelligence agencies feared too many secrets might be revealed. Then, in 1980, Congress passed the Classified Information Procedures Act, which provided for ways to protect secrets in federal trials; under the law, judges can prohibit or limit the introduction of classified information in open court. The law had an impact. Seventy-six spies were prosecuted under Martin, all but one convicted.

“I’m a firm believer in giving them their full constitutional rights and then sending them to jail for a lifetime,” Martin said when he retired.¹

But the tough-guy stance, as Phil Parker was to discover, did not apply in every instance; if Martin chose not to prosecute an espionage suspect, the public never got to know about the case.

Pushing hard for action against the
PALMETTOS
, Parker walked across the street from FBI headquarters in the J. Edgar Hoover Building to see Martin, whose office was not in the headquarters of the Justice Department but on Ninth Street. Martin turned the case over to Joseph Tafe, one of his staff attorneys.

A short, chubby man with sandy hair and glasses, Tafe at first seemed receptive to Parker’s entreaties. The FBI man became a frequent visitor to the Ninth Street building. To Parker’s dismay, however, the department seemed to be moving at a glacial pace.

In the spring of 1977, FBI headquarters had asked the Tampa office to find out if Joe Cassidy would be willing to testify in open court and to travel to Washington to confer with Justice Department attorneys. Cassidy agreed to both requests.

If there were any signs that the
PALMETTOS
were planning to escape, the bureau wanted authority to arrest them. Tafe began drafting a twelve-page criminal complaint to have ready in case the Lopezes tried to bolt. The complaint called on a federal magistrate to issue warrants for their arrests.

On the face of it, the government already had a strong case against the
PALMETTOS
. There were photographs of Lopez and his wife retrieving films of the documents, many marked
TOP SECRET
, that Cassidy had placed at the dead drops. And Danilin had assured Cassidy that he had received that material.

But the department was waffling on whether to prosecute on the basis of the copious evidence already in the hands of the government. In the course of the investigation, the FBI had wiretapped and videotaped the
PALMETTOS
and entered their apartments to place bugs. The Justice Department lawyers could foresee trouble in the courtroom over the bureau’s counterintelligence techniques. The entries, taps, and bugs would surely be challenged on Fourth Amendment grounds by the defense.

John Martin, Parker said, raised additional objections. “John argued there is nothing illegal in picking up a package per se. He said it was just an unusual form of communication; you don’t have to use the post office, you can leave things in rocks. And Martin said the information in the package had been cleared for transmission to the Soviets and therefore was not classified.”

James E. Nolan, Jr., a former high-ranking FBI counterintelligence official, said Martin’s view was that clearing material to pass it to the Soviets “constituted a de facto declassification. He felt that made it unusable for prosecution.”

Legally, however, the question of whether the feed had technically been declassified or not fell into an arcane, gray area. Nobody really knew. An equally strong argument could be made that a document stamped
TOP SECRET
was exactly that.²

“The documents were approved for passage to a hostile government,” Parker pointed out, regardless of whether the feed was classified. “You have the conspiracy charge—it had classified markings on it so you would have to assume the person who picked it up would know he was not authorized to have it.”

The real reason for the Justice Department’s caution, however, was the backstage debate over the wiretaps and entries. The issue was further complicated by the fact that some of the techniques used by the FBI in the
PALMETTO
investigation had been approved by the attorney general, but some had not.

Despite the legal hurdles, at first Parker was encouraged by the apparent support he received from Martin and Tafe. “At the outset, Tafe said, ‘I think we can do a prosecution on this case,’ ” Parker asserted. “John Martin said face-to-face to me in his office in the Ninth Street building, ‘Yes, I think we have a case.’ ”³

As the months slipped by, however, it soon became apparent to Parker that nothing was happening. “What we wanted was prosecution. All we got was talk.” Days and weeks went by with little action. “I’m an easy-going guy,” Parker said, “but I was kicking over trash cans.”

The FBI man had run into a bureaucratic brick wall. “I had been fighting with Joe Tafe for eighteen months to give me an answer,” Parker said. “I even spoke to the U.S. attorney in Minnesota, Thor Anderson.” Whenever Parker approached Tafe, he said, the Justice Department attorney would say, “ ‘I’m busy.’ I could never pin him down.

“We’d been talking for months. . . . I go into his office, and I said, ‘We’re ready to go, are you going to make a decision on it?’ He said, ‘Damn, I just haven’t been able to get to it.’ That’s when I kicked over the trash can rather than hit him in the head. Tafe said, ‘Calm down!’ and I yelled a little bit.”

Parker decided on the spot it was time to confront the Lopezes. As the case supervisor, he had the authority to do that much, with or without the Justice Department’s approval. Once he did so, he knew, the case would be over, one way or another. Either he would get a confession and win permission from the department to make an arrest, or he would at least have the satisfaction of knowing he had done all he could. Parker had a few parting words for Tafe. “I said, the hell with it, I’m going out to Minneapolis to do an interview. Probably we should have done it before.”

It was late May 1978. The Justice Department officials led Parker to believe that if Lopez confessed, there could be a prosecution after all. “Talking to Tafe and Martin, it was, like, ‘If we get an admission, you’ll authorize an arrest?’ And they said, ‘Yes.’ ”

Tafe had concluded there might be a way to pick his way through the legal minefield. With a confession, the government would have a clean case—it would not have to rely on electronic evidence. There was a great deal of other evidence, such as the photographs of the Lopezes clearing drops in Florida, that was not obtained through wiretaps or similar means. And Cassidy was willing to testify in open court.

Parker’s decision to fly to Minnesota meant that the criminal complaint would have to be at the ready. On May 24, a teletype went out from FBI headquarters to Tampa and Minneapolis advising those offices that Tafe would fly to Tampa with the complaint, which was to be filed in court if the subjects attempted to flee. Tampa was instructed to warn Joe Cassidy that his name might be about to be made public and to make arrangements to protect him.

The next day, the text of the complaint was teletyped to the FBI office in Tampa for its information. Headquarters advised that if the Justice Department filed the complaint, it would do so in the United States District Court in Tampa before Magistrate Paul Game, Jr., since the alleged criminal acts had been committed in that part of Florida. The complaint was entitled
United States of America
v.
Gilberto M. Lopez and Alicia C.
Lopez,
and charged them with violation of Section 794(c) of Title 18 of the U.S. criminal code, the key espionage statute that prohibits the transmittal of defense information to a foreign power. The law provides the same punishment for conspiracy to violate the statute.
⁴

The criminal complaint named Mikhail I. Danilin and Oleg I. Likhachev as “co-conspirators but not defendants.” Since the two Soviets had diplomatic immunity, they could not be arrested. The complaint charged that the four “did conspire to communicate, deliver and transmit to a foreign government, to wit, the Union of Soviet Socialist Republics . . . information relating to the national defense of the United States, with intent and reason to believe that the said information would be used to the advantage of said foreign government.”
⁵

The complaint then said that Joseph Cassidy “was acting as a double agent for the FBI. . . . The FBI has been aware of and has supervised Mr. Cassidy’s activities as an apparent agent of the USSR during the course of the events stated herein.” The complaint listed the details of all of Cassidy’s meetings with Danilin and Likhachev, as well as the clearing of the drop sites in Florida by Lopez, sometimes accompanied by his wife. It ended by asking the magistrate to issue “a warrant for the arrest of defendants Gilberto M. Lopez and Alicia C. Lopez.”

To all appearances, the espionage complaint and Parker’s flight to Minneapolis were being carefully coordinated for the likely arrest of the
PALMETTOS
. According to Jack O’Flaherty, Cassidy’s case agent in Tampa, the FBI office there was instructed to make a hotel reservation for Tafe. “I personally went over on lunch one day and made the reservation at the Sheraton, one block from the FBI office in Tampa.” All the ducks were in a row.