America Abroad

By Strobe Talbott

EARLIER THIS MONTH, IT LOOKED AS THOUGH MIKHAIL Gorbachev had gone from being the new Russia's most famous and privileged private citizen to being its first refusenik, deprived of his right to travel. Then, late last week, he was allowed to fly to Germany for Willy Brandt's funeral. But he remains in trouble back home.

The proximate cause, as a lawyer might say, is his defiance of Russia's highest judicial authority, the Constitutional Court. But the case is much broader: it pits Gorbachev against his protege-turned-riva l-turned-successor, Boris Yeltsin; it reveals the primitive, confused nature of legality in a country that is still emerging from official lawlessness; and it dramatizes the difficulty that all ex-communist states are having in coming to grips with their past.

The Bush Administration has been closely monitoring Gorbachev's ordeal. Ten months ago, the Administration engaged in secret diplomatic exchanges to ensure Gorbachev's safety and dignity once he resigned as President of the U.S.S.R. I know the story because I was, along with the historian Michael Beschloss, very briefly part of it.

Beschloss and I were in Moscow last December researching a book we have been writing on the end of the cold war. On Dec. 14, one of Gorbachev's closest aides asked us to convey a message to James Baker, who was due in the Soviet capital the next day. The approach was less peculiar than it may sound. The Soviet Union was disintegrating; its last leader, then 11 days from resigning, was already in limbo. Gorbachev and his loyalists believed that the U.S. embassy had long since become a nest of Yeltsinites and would not be a reliable channel to Baker.

We relayed the message to the Secretary of State shortly after his arrival. The key passage expressed fear that "some people are fabricating a case against" Gorbachev and appealed to the Bush Administration to "impress on Yeltsin" that he should "not permit anything to happen that would harm the ((Soviet)) President."

Meeting with Yeltsin on Dec. 16, Baker stressed that the U.S. would "look with disfavor" on any effort to humiliate Gorbachev. Yeltsin's reply was reassuring: "Gorbachev should be treated with respect. It's about time our leaders can be retired with honor."

For months, Yeltsin seemed to be keeping his word. The Russian government provided Gorbachev with a chauffeured limousine so that he could commute from his dacha outside Moscow to a downtown office building that housed his new think tank. He also roamed the globe, raising money for various humanitarian and scholarly ventures. But in the spring Gorbachev started sniping at Yeltsin, accusing him of running the economy into the ground. The Russian President struck back by stripping Gorbachev of some of his perks.

Meanwhile, the Constitutional Court opened hearings into the history of communist rule and Yeltsin's ban of the party after the coup d'etat of August 1991. As General Secretary of the party for its last six years, Gorbachev was naturally called to testify. He refused, saying he would not participate in a "political" trial, "even if I am brought to the court in handcuffs." In < retaliation, the Russian authorities have threatened to evict him from his institute and yanked his passport. Only when the Germans protested his treatment was he permitted to go to the Brandt funeral.

Gorbachev has reason to be wary of the court. Die-hard communists have been taking the stand to argue for lifting the ban on the party; some are clearly bent on implicating Gorbachev in the failed coup.

So far, however, the court is not conducting a witch-hunt. William Green Miller, president of the Committee on American-Russian Relations, has attended the proceedings and is convinced that the aim "is not to establish the culpability of individuals but the illegitimacy of the old system."

The trouble is, there is no new system. Russia has yet to come up with a constitution to replace one from the Brezhnev era, so the Constitutional Court, however nobly conceived, is something of a misnomer. It has no power to issue subpoenas or grant immunity. Still, Gorbachev should take his chances and testify.

When he was in the Kremlin, he began the effort to transform a dictatorship into a civil society and "a law-based state." The current hearings are intended as a continuation of that process. If Gorbachev were to have his day in court and rebut the hard-liners, it might help the liberal justices block the reactionaries and keep alive his own proudest legacy.

So far, the Bush Administration has, quite rightly, kept quiet. Only if there are signs that Gorbachev is being turned from a witness into a scapegoat should the U.S. come to his defense by reminding Yeltsin of his promise to Baker last December.