U.S. Legal System Gets a Hearing in Moscow : Law: In a sharp break with the past, Thornburgh gets an opportunity to expound on the American view of justice.

By RONALD J. OSTROW

Oct. 28, 1989 12 AM PT

TIMES STAFF WRITER

MOSCOW — The FBI agent, a man used to disguising emotion, marveled when he found himself in the headquarters of the KGB, checking out the office of the head of the agency that keeps more FBI agents busy than any other espionage operation in the world.

A member of the security team protecting Atty. Gen. Dick Thornburgh during his five-day mission to Moscow last week, the agent found himself ushered into the inner sanctum, still armed with his handgun, to check out the premises. He later celebrated the occasion by swapping an FBI key chain for a Lenin lapel pin from a KGB counterpart.

The FBI agent was preparing for Thornburgh’s meeting with Vladimir D. Kryuchkov, chairman of the KGB, or Committee for State Security. Like the agent’s experience, the Thornburgh-Kryuchkov meeting represented a sharp break from the past. It was the first official visit by a U.S. attorney general to the Soviet capital

Also new were the working-group sessions between top Soviet legal officials and Thornburgh’s Justice Department team on the topics of environmental law, narcotics and organized crime, immigration and the American legal system.

The Americans were in Moscow at the invitation of Justice Minister Veniamin F. Yakovlev, one of the Soviet officials struggling with the task of realizing President Mikhail S. Gorbachev’s declared intention to convert the country into “a law-based state.”

“They realize that a law-based state is necessary if there is ever going to be (foreign) investment in the Soviet Union,” Thornburgh said this week.

Despite all the precedent-setting, the sessions underscored the gap separating the Soviet and U.S. legal systems and the long-odds, uphill struggle that Soviet reformers face.

Freedom for All

Throughout Thornburgh’s visit, it was not clear that his message about the supremacy of law was really getting through.

When he told law students at Moscow State University, for example, that “the society where law is supreme, we think, is a society where the individual can live in greatest freedom,” his audience of 250 showed no visible reaction.

They seemed nonplussed when Thornburgh declared: “There are many variations on the theme of democracy in the world today, but the irreducible conditions of democracy, embodied in our Bill of Rights, are clear: Irreversible guarantees of the rights of the individual through restraints on government power.”

And it seemed like two ships were passing in the night when Thornburgh, in a meeting with Vadim V. Bakatin, Soviet minister of internal affairs, tried to explain the procedures that federal prosecutors have to follow in obtaining court permission to wiretap a suspect’s conversations.

The attorney general explained that in America, investigators must convince a magistrate that there is probable cause to believe a crime has been committed before obtaining the required court warrant. Crucial to the procedure is an independent judiciary--judges who won’t just automatically go along with a prosecutor or arbitrarily reject a wiretap request but will decide on the basis of the information presented them, he said.

Although Soviet authorities are believed to rely frequently on wiretaps for spying on citizens and foreigners, Bakatin explained that the information from wiretaps is not now admissible as evidence under the Soviet system. That is because the system assumes that crime is not a problem in a socialist state.

Now that the Soviets have recognized crime as a real problem and have released crime statistics showing mounting lawlessness, Bakatin sees the need for wiretap evidence. But the Soviet Union has not yet established an independent judiciary.

Judges in the Soviet Union enjoy little of the status that their U.S. counterparts command. Regarded as rubber stamps for the Soviet executive and as instruments for carrying out the will of the Communist Party, they are so poorly paid that they are seeking a 100% pay hike as part of restructuring.

Thornburgh, discussing his trip with reporters this week, said the average Soviet judge earns less than the average “paid across the board” to all workers.

However, the concept of a judiciary so independent that its highest tribunal can strike down laws enacted by the legislature, on grounds that they violate the constitution, has not yet drawn support in the Soviet Union.

The reformers weighed granting a revitalized judiciary such power, but it was determined to be “not suitable for our system,” Yakovlev told the Justice Department team in an early meeting.

In discussions with the faculty at Moscow State University, Thornburgh learned that neither students nor faculty regard being a judge as a desirable career goal. It’s “something almost beneath the dignity of a lawyer in the Soviet Union,” Thornburgh said.

A Question of Turf

Part of the problem with the Soviet system is that even existing enforcement authority is fragmented, according to the Thornburgh team. Thus, four ministries handle what falls to the U.S. Justice Department: the ministers of justice and interior, the procurator general and the KGB’s domestic enforcement arm.

“It’s a question of turf, and how do you get agencies to give up their powers?” said one of the Americans.

The team did achieve some immediate results. For example, Thornburgh told a group of refuseniks Oct. 16 that he will urge the Soviet government to adopt a law on emigration that takes into account complaints that Jews and others seeking to leave the country are being turned down arbitrarily.

The pledge came after Anatoly Genis, a refusenik who has been trying to leave the country for 13 years, related the most recent developments of his plight.

Genis said he rejoiced when his oldest son developed high blood pressure, which would make him ineligible to be drafted into the Soviet army. Draftees have found that the government delays permission to emigrate for up to 18 years because of military service. The authorities argue that a soldier learns security information and cannot be allowed to leave until the knowledge is no longer sensitive, Genis said.

But Genis said another son was recently notified that he will be drafted, putting in jeopardy the family’s plan to emigrate.

A new emigration law being drafted by the Soviet Union reportedly sets five years as the limit that a person may be barred from emigrating on state secret grounds, but the draft contains exceptions that open the door to more arbitrary decisions, Genis and other refuseniks told Thornburgh.

Thornburgh, under the Jackson-Vanik Amendment, has the responsibility of advising President Bush on whether the Soviet Union should continue to be denied most-favored-nation trade status on grounds that its emigration law falls short of world standards.