The Soviets and the rule of law

DANILOFF is in sight and out of mind, eclipsed by the controversial Reykjavik summit. Pre-Icelandic polls establish that the people at large were content with Nicholas Daniloff's release, despite the bad precedent of exchanging an honest American journalist for a Soviet spy.

The same polls, however, show that the public was convinced that there was an exchange deal, notwithstanding administration disclaimers.

All of this goes to show once again that the American people cannot be fooled all of the time.

These features of the Daniloff case have been extensively discussed with the news media. But there is an aspect of the case still newsworthy, since it involves the rule of law and a recent action of the American Bar Association (ABA) agreeing to exchanges and dialogues with the Association of Soviet Lawyers designed ``to promote the rule of law.'' The Daniloff case proves how ill conceived this exchange is.

Mr. Daniloff, for 13 days before the release was negotiated, was confined to a 6-by-10-foot cell in Lefortovo Prison with a stool-pigeon cellmate. During imprisonment he was interrogated by the KBG intelligence agency four to five hours a day and threatened with a trial and possible death sentence, all designed to coerce a confession. He was inadequately fed and initially denied medication necessary for his high blood pressure condition.

It is no wonder that a haggard Daniloff, immediately upon his release, described his treatment as ``mental torture.''

Under Soviet law, the KGB was authorized to keep him in custody and subject him to continuous interrogation for six months and, upon application, never denied, for nine months. During all of this period, Daniloff would not be entitled to consult with a lawyer. In the United States such behavior by the authorities would be unconstitutional.

Now for Soviet dissidents, this unhappily is par for the course. But Nicholas Daniloff is a US citizen, not to be subjected to this ordeal in our country.

The contrast of the treatment under our law of Gennady Zakharov, the Soviet spy, is most striking. Upon his arrest, he was given a Miranda warning that he was not required to respond to interrogation and was entitled to consult with legal counsel before answering any questions.

A lawyer was promptly furnished by the Soviet mission to the United Nations, who, in the exercise of his professional responsibilities, advised Mr. Zakharov of his right to remain silent. Zakharov, an experienced KGB operator, followed this advice.

Further, his incarceration was totally different from Daniloff's. The Soviet spy was well fed and provided with adequate food, medical care, and the opportunity for exercise. He had a dormitory-like ``cell'' in a facility described to the press as a ``country club.'' On the other hand, Lefortovo, a KGB prison, is the most feared prison in the Soviet Union.

The contrast in the treatment of both men, under their respective legal regimes, was evident upon their releases. Daniloff, as he acknowledged, was on the verge of collapse. Zakharov, on the other hand, not only looked well, both physically and mentally, but was quite chipper.

In addition to the bad precedent of exchanging a journalist for a spy, the Daniloff case illustrates the wide gulf that exists between our country and the Soviet Union with respect to observance of the rule of law. This is a difference that is to our credit.

The fundamentals of a rule of law are an independent judiciary, judicial review of arbitrary governmental action, and an independent bar. None of these elements exist in the Soviet Union.

The KGB is omnipotent and omniscient. Soviet judges are not independent, but are instruments of the party and government. Judgment and sentence in political cases are predetermined. Soviet trials and judges are reminiscent of Lewis Carroll's statement in ``Alice in Wonderland'': Sentence first, trial afterwards.

Further, our concept of genuine judicial review is nonexistent. In political cases, Soviet courts of appeal, under directives from on high, invariably affirm the sentence of the lower courts or increase sentences.

And the Soviet bar is totally lacking in independence. There are a few courageous lawyers who will act for the defense in political trials. But even they are inhibited from challenging the prosecution's case. Defense lawyers, in political cases, are not free to penetrate the KGB curtain. Their only role is to make a plea in mitigation of the inevitable sentence. And such pleas almost invariably fall on the deaf ears of Soviet judges.

This is not merely a theoretical or abstract difference. The totalitarian regime in the Soviet Union could not exist if the rule of law prevailed. On the other hand, the commitment to the rule of law is the essence of our democratic system.

It is therefore naive to expect that the Soviet Union will mend its ways. This is why the exchange agreement between the American Bar Association and the Assocation of Soviet Lawyers is so inexplicable.

It has been argued that Soviet lawyers will be affected in some manner by our example and by what American lawyers have to say.

This is naive in the extreme. The representatives of the Association of Soviet Lawyers are carefully selected by their government and carefully screened by the KGB to ensure ideological purity and to follow the party line. They are surrogates of their government. On the other other hand, the delegates of the ABA are truly independent of our government.

To conduct exchanges and dialogues under these circumstances is futile - as the first of the dialogues (the Dartmouth meeting), held paradoxically during the Daniloff affair, demonstrates. Instead of advancing the rule of law and improving relations between our two countries, the meeting deteriorated into a mere rhetorical exchange of name calling and the like.

This is not to say that all exchanges are per se undesirable or fruitless.

Cultural exchanges, for example, do serve a useful purpose. People-to-people exchanges (Chautauqua and the like) do no harm and perhaps some good.

And science knows no borders. But I thought it shameful for the National Academy of Science to renew an exchange agreement with the Soviet Union while Andrei Sakharov, an honorary member of our Academy of Science, Nobel Prize laureate, and great humanitarian, is virtually under house arrest in Gorky and subject to intolerable indignities.

Exchanges of these types, whatever the differences between our systems, have some common denominators. But exchanges of lawyers purportedly to further the goal of the rule of law are another matter. There can be no real exchange between the lawyers of a country dedicated to the rule of law and a country with no meaningful commitment to the rule of law.

A harmful aspect of this exchange is that it tends to give an aura of legitimacy to the Soviet legal regime which rejects, rather than observes, the rule of law.

The ABA should terminate this nonsensical and harmful agreement. It will lose face in doing so. But, as Piet Hein, the Danish philosopher and poet, said: ``The noble art of losing face will someday save the human race.''

Arthur J. Goldberg is a former associate justice of the Supreme Court of the United States.

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