Miller’s Attorneys Seek to Bar Use of Spy Case Wiretaps

Defense attorneys in the spy case of former FBI Agent Richard W. Miller are challenging the constitutionality of the super-secret U.S. Foreign Intelligence Surveillance Court in Washington on grounds that the court has become a “rubber stamp” for the activities of the nation’s intelligence agencies.

All government evidence obtained by electronic surveillance in the Miller case should be suppressed because it was illegally authorized without proper court review, lawyers for Miller and accused Soviet agent Svetlana Ogorodnikova argued in defense documents released Friday in Los Angeles federal court.

The surveillance court, established in 1979 as the authorizing body for intelligence gathering activities within the United States, has never turned down a request for electronic eavesdropping or any other surveillance activity, the attorneys contended.

Gregory P. Stone, an attorney for Ogorodnikova, cited congressional statistics showing that the court has been asked to authorize surveillance 1,774 times by various government agencies, and has granted every request.

No ‘Rigorous Scrutiny’

“It is apparent that the applications are not receiving careful and rigorous scrutiny by the court,” Stone said. “Mrs. Ogorodnikova submits that no one, not even the attorney general, can be correct 1,774 times in a row.”

The surveillance court, intended to provide a strict legal check on the domestic activities of U.S. intelligence agencies, conducts its work in total secrecy and meets in a courtroom with combination locks on the front door. A record of its proceedings is never made public.

The court gave the authorization Sept. 4 for the FBI’s electronic surveillance of Ogorodnikova and Miller after an investigation into their alleged espionage activities had already begun.

Miller, 48, and Ogorodnikova, 34, were arrested on espionage charges Oct. 2 along with Ogorodnikova’s husband, Nikolai Ogorodnikov, 51. Miller, the first FBI agent ever charged with spying, was accused of turning over secret FBI documents to Ogorodnikova in exchange for a promised fee of $65,000 and a Burberry’s trench coat.

Various Wiretaps

According to the new defense documents, the FBI investigation that preceded the arrests included wiretaps on the Hollywood apartment of the Ogorodnikovs, Miller’s home in San Diego County, his apartment in Lynwood and the automobiles owned by both Miller and Ogorodnikova.

Defense and prosecution documents suggest that the Soviet Consulate in San Francisco was also subjected to electronic surveillance authorized on an annual basis by the surveillance Court.

Miller and Ogorodnikova allegedly traveled together to the San Francisco consulate Aug. 25, and the former agent is quoted in one document as saying he told Ogorodnikova that it was “bugged” by the FBI.

Arguing for the suppression of all wiretap evidence in the case, the defense lawyers also contended that the FBI violated sections of the Foreign Intelligence Surveillance Act by continuing the electronic surveillance of the three accused spies until the time of their arrests, when it was no longer needed for national security.

They charged that the wiretaps were continued primarily to strengthen the government’s criminal prosecution of the three accused spies, observing that the Senate Select Committee on Intelligence headed by Sen. Barry Goldwater (R-Ariz.) criticized such conduct in a report last year on FISA activities.

“The surveillance in question was lawful only if its primary purpose was to gather foreign intelligence and not to gather evidence for a criminal prosecution,” Stone said.

“Yet the surveillance continued until the moment Mrs. Ogorodnikova was arrested and throughout the five days that Miller was undergoing interrogation. This suggests that at some point, if not initially, the primary purpose of the surveillance was evidence-gathering.”

The defense challenges to the FBI wiretaps are scheduled to be heard by U.S. District Judge David V. Kenyon beginning Wednesday.

Federal prosecutors have maintained that the wiretaps were legally authorized and that other federal courts have upheld the activities of the intelligence court in previous challenges. Justice Department officials say the court’s steady acceptance of surveillance requests is the result of the careful scrutiny taken by intelligence agencies in submitting their proposals to the court.

The wiretaps are regarded as potentially more damaging to Ogorodnikova than to Miller, partly because the evidence against the former FBI agent also includes a long list of admissions he allegedly made during questioning after he first told one of his superiors on Sept. 27 that he was involved with the Ogorodnikovs in an effort to catch them as spies.

While joining in the effort to suppress the wiretaps, Miller’s attorneys, Joel Levine and Stanley I. Greenberg, focused their attention in their final defense papers on the propriety of “spiritual advice” given to Miller during the interrogation period by Richard T. Bretzing, the agent in charge of the FBI’s Los Angeles office.

Miller’s lawyers challenged a statement by Bretzing, a Mormon bishop, that he was speaking only as the head of the Los Angeles office and not in any religious capacity when he urged a tearful Miller, an excommunicated Mormon, during a Sept. 29 meeting to “repent” and confess to past misdeeds.

“Mr. Bretzing was well aware that Mr. Miller had recently been excommunicated from the Mormon Church, in which he had been a lifelong member,” Levine and Greenberg responded. “He played upon this religious vulnerability and told Miller to consider the spiritual ramifications of his actions.”

It was only after Bretzing’s emotional appeal to Miller that the agent began his alleged confessions to past crimes and also changed his story about his relationship with the Ogorodnikovs, Miller’s attorneys continued.

Miller allegedly admitted skimming money from government informants, selling confidential information to a private investigator in Riverside County and turning over a secret FBI document to Ogorodnikova.

As a result of Miller’s alleged admissions and other evidence obtained by the FBI, the original indictment charging him with espionage was modified to include additional allegations of embezzlement and theft of government property.

Levine and Greenberg contend in the latest documents that Miller would not have made his alleged confessions if he had not been exhausted by the interrogation process and emotionally shattered by Bretzing’s comments. They argue that the admissions were not made voluntarily, and should also be suppressed.

Miller and the Ogorodnikovs are scheduled to be prosecuted together on the espionage charges in a trial beginning Feb. 12. Various motions will be heard by Kenyon before that date, however, including a request by the government to try Miller separately and a motion from Miller’s attorneys to delay the trial until at least April 1.