Wednesday, August 19, 2009

How Robert Novak Helped Save "The Littlest Defector"

I wrote the following essay about a year ago, when the late Bob Novak was diagnosed with cancer. It bears repeating, now that Mr. Novak has passed away.


Robert Novak has brain cancer. His survival is uncertain. Whenever he passes, his obituaries will doubtless be full of anecdotes about his decades-long powerful, fearless presence at the seat of our national government.

It’s unlikely, however, that once Bob is laid to rest the public would ever learn how he was instrumental in saving a then 14-year-old boy—dubbed by George Will ‘The littlest defector”—from the communist dictatorship he had fled. That’s why I’m telling this story now.

On August 21, 1981, based on a government document I had obtained, I wrote the following letter to William French Smith, President Ronald Reagan’s Attorney General of the United States:

Dear Mr. Smith:

Julian E. Kulas (who joins in this letter) and I represent Walter Polovchak, the 14-year-old Ukrainian defector whose plight has received so much attention recently in the international press.

As you know, on July 19, 1980, based on the strong recommendation of then Undersecretary of State Warren Christopher, the United States of America granted Walter Polovchak religious asylum. Until recently, it has been our understanding that Mr. Polovchak’s asylum (indeed, all asylum) was unconditional and irrevocable so long as his behavior was lawful. Until recently, we believed that Walter Polovchak had found a safe haven in America. Apparently, we were mistaken.

We have just learned that in order to “settle” the American Civil Liberty Union’s baseless Chicago federal court case on behalf of Mr. Polovchak’s parents, counsel to the Immigration and Naturalization Service and the United States Attorney in Chicago (both subordinates of yours) have made a deal with the ACLU which will have the practical effect of giving the ACLU what it could not accomplish in court: a de facto nullification of Walter Polovchak’s asylum. This nullification will result from the assurance, given by the government to the ACLU, that the United States will not “initiate any independent action” to prevent or otherwise “interfere” with Mr. Polovchak’s parents’ “right” forcibly to remove him to the Soviet Union—if the State of Illinois grants them custody of him.

Assuming, arguendo, the validity of such a custody determination, it is our contention that, nevertheless, the principle of Federalism and the Supremacy Clause of Article VI of the Constitution of the United States of America make Walter Polovchak’s federally granted religious asylum an absolute bar to his parents removing him from the United States. We contend that even if they receive custody from Illinois, that custody cannot be exercised in a manner inimical to the federal government’s earlier asylum determination that Walter Polovchak may remain in the United States. If Federalism, the Supremacy Clause and asylum mean anything, they mean that.

In addition to Mr. Polovchak’s obviously substantial interest in remaining free in America—rather than becoming a captive in the Soviet Union, and almost certainly being punished for his well-publicized defection—our nation also has an important stake in his fate. If the federal government reneges on the asylum it granted to Walter Polovchak thirteen months ago, the United States will be sending an unmistakable message around the globe: America’s promise of safe haven cannot be trusted; our grant of asylum, rather than being unconditional, irrevocable, inviolate, is instead ephemeral, temporary, suspect.

Although reasonable people could perhaps disagree about whether a minor should be able to seek or be granted asylum, that is not our case. Walter Polovchak has been granted asylum, and because of that the world is watching closely, Mr. Attorney General. Mr. Kulas and I implore you to reaffirm what America stands for by repudiating the INS/U.S. Attorney deal with the ACLU, and instead using every appropriate resource at your command to secure the asylum commitment which the United States has already made to Walter Polovchak.

In order to make our position as widely known as possible, and to enlist support for it, copies of this letter are being sent to interested parties.



When Attorney General Smith ignored this letter, and Walter’s freedom swayed precariously in the balance, I sent a copy to Bob Novak.

Although Bob had not before written about the Polovchak case, on August 26, 1981 he wrote a syndicated column entitled “William [French] Smith’s Runaway Justice Department.” It excoriated Smith’s Department of Justice and its toleration of, if not participation in, the scurrilously obscene bargain his Chicago subordinates had made with the ACLU. Novak wrote that: “The incongruity of Ronald Reagan's Justice Department withdrawing the asylum granted a teen-age Ukrainian boy a year ago by the Carter administration comes as no surprise to a White House benumbed by the peculiar regime of Attorney General William French Smith.”

As soon as I learned of the column, I called Bob Novak, to whom I had never spoken before.

My notes of our conversation on the morning of August 24, 1981 reveal that Novak was told by “a certain party,” whom he implied was Ed Meese at the White House, that something would be done by the Department of Justice to unscramble the Chicago conspirators’ omelet and throw the weight of the federal government on Walter’s side of the scales. The prime mover was to be Deputy Attorney General Edward C. Schmults, then on vacation in Connecticut. But there was strong resistance at DOJ.

Bob and I spoke again at 5:15 that afternoon. He informed me that though his contact at DOJ was evasive, “if it all comes together they’ll have an announcement tomorrow.”

And that’s what happened.

The DOJ spokesman told a press conference that there had never been a government deal with the ACLU—but if there had, it had been squashed. He pledged that from then on the United States Department of Justice would defend Walter’s asylum. Indeed, soon after, through the efforts of DOJ attorney Bruce Fein, the government issued a “departure control order” which prevented Walter from being forcibly removed from the United States.

Years of pro bono litigation followed. Julian Kulas, Erika Holzer and I fought seven different lawsuits: trials and appeals, state and federal. We won some, and lost others.

The cases and the years ground on, and on October 8, 1985 Walter Polovchak reached the age of 18 years. Under Illinois law he had become emancipated, free of the state and federal courts—and of his parents and their ACLU and KGB allies.

On that day, the Liberty Institute held a “Birthday Party of Freedom” for Walter Polovchak on Capitol Hill in a huge Senate chamber. On that day, in that place, after years, and fear ,and fighting, “The littlest defector” took the oath of citizenship and became an American.

During his long and distinguished career as one of America’s foremost print journalists, Robert Novak has written thousands of articles and millions of words. He has been on the right side and the wrong side—and often on no side at all. In the case of Walter Polovchak, Bob lent his considerable clout to the service of a young Ukrainian boy who wanted nothing more than to be free. Of our few journalist allies in those dark days of 1980-1981—among them George Will, Roger Simon and Alan Dershowitz—Robert Novak, the so-called “Prince of Darkness” immeasurably helped three lawyers bring “The littlest defector” into the bright light of a new life.

Julian E. Kulas, Erika Holzer and I wish him well.

R.I.P., Bob.

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