15
The FBI’s surveillance team’s first sighting of Mark was on May 23. He paid a brief visit to the studio late in the evening and with the aid of a radio-link a team of two agents followed him when he left. Along Fulton Street to Clinton through to Montague and down to the Borough Hall subway station. He was followed to the City Hall stop where he got off, walking north on Broadway to the corner of Chambers Street, where he took a bus and got off at 27th Street. Up Fifth Avenue the FBI man followed as his quarry walked the block to 28th Street and turned the corner. But when Special Agent McDonald reached the corner of 28th Street and Fifth Avenue there was no sign of his man.
It was three weeks before they saw him again, and once more it was late at night when the lights went on in Studio 505 in the Ovington Building. It was ten minutes before midnight when he left and although the route was different this time the journey still ended at 28th Street, and this time they watched him enter the Hotel Latham. It was just past midnight on June 13 and the report of the sighting went back to FBI headquarters. The hotel register showed that the man Hayhanen called Mark had booked in under the name of Emil Goldfus. The FBI notified the New York director of the Immigration and Naturalization Service, and from there a report on Hayhanen and the surveillance operation was passed to the Internal Security Division of the US Attorney’s office.
What could seem to outsiders as an exercise in passing the buck was, in fact, the reverse. When espionage is involved and the suspect is not a citizen, either born or naturalised, Federal Law requires the legal procedures to be followed meticulously. If the accused comes to trial on charges of espionage the evidence has to be concrete and conclusive or any experienced defence lawyer can reduce the prosecution case to one where nothing more than deportation can be the outcome. When prosecuting foreigners or illegal immigrants every step of the legal process has to be observed. If, as now seemed possible, Goldfus was an illegal immigrant, he would have to be brought to justice by the INS, but that would not give powers to the FBI or the CIA to use the arrest to obtain evidence of espionage.
The head of the Internal Security Services decided that without Hayhanen giving evidence in public, in court, they had too little evidence to bring a charge of espionage. He sent two of his attorneys to talk to the only witness—Hayhanen.
For two days and nights they talked, argued, pressured and persuaded but Hayhanen adamantly and angrily refused to go beyond just talking. He said he was afraid of reprisals by the KGB against his family in the Soviet Union. They also realised that he was genuinely afraid that the long arm of the KGB could reach out for him, even in the United States. He would go on answering their questions but he would never testify in court.
Nielson turned in his chair to look at the CIA man standing at the end of his desk.
“Nowak, I warn you. If you people—and the FBI—don’t get your asses out of this operation this guy may never come to trial. We won’t even be able to hold him for more than a week.”
“This is crazy—this guy is …”
Nielson cut him short. “I don’t care whether it’s crazy or not. We have a warrant and a show cause order drawn up in Washington and that’s enough for us to pull him in. But if you people try to ride in on the back of these, nothing you uncover or find will have any legal standing in a charge of espionage and will never—I repeat, never—stand up in court. Without Hayhanen giving evidence in court and subject to cross-examination you haven’t got a leg to stand on. Even with Hayhanen testifying in court you may not make it anyway.”
“For Chrissake, man, this guy is …”
Nielson stood up waving his hand dismissively in front of him.
“Don’t shout at me, Paul. The law is the law. I don’t make it, I just administer it.”
Nowak shrugged. “Can I ask you something off the record?”
Nielson relaxed and said quietly, “OK. Go ahead.”
“Is somebody protecting this bastard behind the scenes?”
Nielson looked surprised. “I’ve seen nothing that would make me think that. Why do you ask?”
“We know this guy has been the principal KGB man in the whole of the USA. For years. He’s been running a network of agents very efficiently from what we’ve learned. Why has he never been picked up before? And why is everybody so anxious to protect him now?”
Nielson shrugged. “The first question I can’t answer, Paul. The United States is a big place. It’s easy to disappear if you want to. About people protecting him—there’s no one protecting him in my department. It’s you people we’re protecting. Warning you that you’ll come to grief if you don’t stick to the rules.” He paused. “It’s as simple as that.”
“If we risk it—what then?”
“You’d be gambling. If you didn’t get a confession from him you’d be put through the mincer by the defence attorneys.” He shook his head. “I wouldn’t want to see that happen.”
16
On June 21, 1957, despite the warnings of legal complications, there were a dozen FBI agents in or near to the Hotel Latham. Two officers from the INS
