Verdicts of History

The Rosenberg File: A Search for the Truth.
by Ronald Radosh and Joyce Milton.
Holt, Rinehart & Winston. 608 pp. $22.50.

Ronald Radosh and Joyce Milton, in this superlative book, describe how their conviction that the Rosenbergs were innocent changed on the basis of a lengthy study of the case, and in particular of the enormous mass of documents that were released through the efforts of the Rosenbergs’ sons, Michael and Robert Meeropol, under the Freedom of Information Act.

There were many phases in this change of view. Radosh recounts how he stood in Union Square, a young high-school student, with the despairing Rosenberg supporters, as they awaited news in those last confused hours between the Supreme Court’s dismissal of the Rosenbergs’ last appeals and the execution that had been moved up so as not to take place on the Jewish Sabbath. Even when, Radosh tells us, he gave up his early sympathy for the Soviet Union, he still believed in the Rosenbergs’ innocence, and joined the executive committee of the National Committee to Reopen the Rosenberg Case that was organized in 1974.

These were certainly honestly held beliefs on his part, and on the part of many (not of all, as we learn from this book, for those who were close to the top echelons of the Communist party took it for granted that Julius Rosenberg had engaged in espionage). The earnestness of the belief in the innocence of the Rosenbergs is demonstrated by the successful campaign to gain access to FBI and Department of Justice files on the case. This campaign, after all, was not initiated by those who were satisfied that the truth had come out at the initial trial, and who had been unshaken by massive volumes attempting to demonstrate lying by the chief witnesses—David and Ruth Greenglass and Harry Gold—and fraud and manufacture of evidence by the FBI. The release of the official documents, sought to rehabilitate the Rosenbergs, has resulted in the addition of so much more evidence consistent with guilt that no honest person can now believe the Rosenbergs were framed by American agencies of investigation and justice. We learn from this mass of documents, more than 250,000 pages, analyzed meticulously by Radosh and Milton, that the FBI and the Department of Justice may have been guilty of many things—prejudice, insensitivity, and most seriously the indictment of Ethel Rosenberg as a means to get her husband to talk—but they were not engaged in the manufacture of evidence.

As one follows the trail of evidence, from Klaus Fuchs, to Harry Gold, to David Greenglass, to Julius Rosenberg, and then to those with whom he was in contact but who had fled or refused to talk—Alfred Sarant, Joel Barr, William Mutterperl, Vivian Glassman, and others—through the investigation reports, it is clear that the FBI was surprised by what it discovered. Things moved very rapidly after the Fuchs confession, and there was no reason to believe that the astonishing string of further confessions that led the FBI to the other participants in espionage would end with Julius Rosenberg. It did. After that, there was flight and silence and refuge in the Fifth Amendment.

All this is consistent with honest investigation, and cannot possibly, Radosh and Milton believe, support any suspicion of fraud or frame-up. Moreover, much of the evidence finds independent confirmation in ways totally inconsistent with manufacture.

There was even far more evidence than was presented to the jury. A number of reasons led to this strategy, including the fear of the Atomic Energy Commission that classified information would emerge, the desire to keep the extent of the FBI’s knowledge of their espionage activities from the Soviet authorities, and decisions as to what would be clearest to a jury and a judge. This resulted in a transcript in which the evidence was thinner than it might have been, or than one would have wished in order to still all doubts in a capital case. But while this additional evidence was not available to the jury, much of it was available to observers quite early—as, for example, in the subsequent trial for perjury of William Mutterperl.

So Radosh and his collaborator, Joyce Milton, have gone through an odyssey that moves from belief in innocence to conviction of guilt. Part of this odyssey can be traced in the writing of Radosh as he began to explore the FBI documents. In 1979, an article he did jointly with Sol Stern in the New Republic announced the first findings from his study of the FBI documents and from interviews, some with people (the Greenglasses, for example) who had never been interviewed on the case before. Stern and Radosh asserted that Julius Rosenberg was guilty, but that Ethel Rosenberg was not. The reason Stern and Radosh could not believe in Ethel Rosenberg’s guilt was thin; in this book, on the basis of further study, Radosh accepts the verdict of guilt and concludes: “Ethel Rosenberg probably knew of and supported her husband’s endeavors, and it seems almost certain that she acted as an accessory, at least in the activities of her own brother, David Greenglass.”

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To most people who have studied the case, there will be little news in the conclusion that Julius Rosenberg was guilty. A jury believed so in 1952, and when I read the trial transcript that same year, to settle my own doubts about the verdict, I could see no basis on which that verdict could be disputed. In later books trying to demonstrate the innocence of the Rosenbergs, I found only the tendentiousness of the already convinced, weaving fantastic tales of conspiracy that could not possibly influence an objective observer. Yet this was no great credit to my prescience. My political views were different from Radosh’s and Milton’s, and it was easier for me to see what they now accept as the truth—and more than accept, demonstrate beyond any shadow of a doubt through herculean efforts of research. Yet their different political views led them to a testing of the evidence that not only may convince the as-yet unconvinced, but opened them to understandings and aspects of the case to which I was not, I will confess, fully alive.

I have already referred to one of these issues: the degree of Ethel Rosenberg’s guilt. The only overt acts of which she was accused were cooperation with Julius in urging her brother, David Greenglass, who was a machinist at Los Alamos, to provide information, and then typing up this information. The reference to typing comes late in the pre-trial questioning of the Green-glasses. Perhaps it was owing to David’s desire to keep his sister out of the case. But regardless of the details, it is clear that almost all the espionage activity—the contacts with the Russians, the contacts with scientists working on classified projects, the trips to pick up information—was by Julius, not Ethel, a mother with two young children and in ill health. The notion that Ethel was the dominant figure of the couple has no basis at all in any of the official documents. It apparently comes from the imagination of Morris Ernst, the well-known civil-liberties lawyer, who was approached by Julius Rosenberg’s relatives about coming into the case and who went to the FBI—a number of contacts are reported in the documents—to propose that he cooperate with them while serving as the Rosenbergs’ lawyer.

The FBI came off rather better than Ernst from this shabby episode: “Nichols’s [Ernst’s FBI contact] memo paints a shocking picture of a lawyer offering to represent prospective clients only with the FBI’s permission, and then, in effect, only to act as the Bureau’s servant. The Bureau, however, was not very warm to the plan. Nichols told Ernst that the case was now ‘out of our hands’ though he did relay the message to Hoover, who agreed with Nichols’s assessment that the FBI ‘simply could not under any circumstances get involved.’ ”

While Ernst believed that “Julius is the slave, Ethel, the master,” the evidence shows that it was not on this basis that Ethel was arrested and indicted; it was, rather, to serve as a way of putting pressure on Julius to confess. Once set in motion, the strategy moved to its grim conclusion in execution. This despite the fact that Deputy Attorney General Peyton Ford, acting for the Department of Justice, opposed her execution, and that J. Edgar Hoover (who in contrast to Ernst presumed her “to be acting under the influence of her husband”) also opposed it.

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Why then was Ethel executed? This brings us to the most disturbing part of the case—the role of Judge Irving Kaufman. Kaufman sought the views of the FBI and the Department of Justice on the sentencing. When he learned that both were against Ethel Rosenberg’s being sentenced to death, he asked the prosecutor to refrain from making any recommendation, and then sentenced them both to death.

There was more to Kaufman’s role. While he could not be faulted in his public capacity as judge, his commitment to his sentence of death, and his concern that it would not be carried out rapidly, led him into contacts with the FBI which seem to me incompatible with the judicial office. We may allow a senior colleague, Justice Felix Frankfurter, to pass judgment on him: “The individual that Frankfurter held most responsible for the courts’ less than dispassionate handling of the Rosenberg case was Judge Irving Kaufman. Writing to Judge Learned Hand in 1958, Frankfurter said of Kaufman, ‘I despise a judge who feels God told him to impose a death sentence,’ and he vowed, ‘I am mean enough to try to stay here [on the Supreme Court] long enough so that K will be too old to succeed me.’ ”

Kaufman thus emerges from the secret FBI reports looking as bad as Morris Ernst. Some explanation of his distinctly non-judicial behavior still seems called for. Even if it is from the point of view of law beyond challenge, from the point of view of the kind of judgment we are called upon to make on the character of public persons, he must be condemned.¹

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Radosh and Milton’s book, and the Rosenberg case, call on us to make larger judgments than those affecting individuals. Can we say that the Rosenberg case was a miscarriage of justice? Can we ascribe the case to an atmosphere of hysteria, of excessive fear of espionage? Were those found guilty given punishment that was disproportionate to the degree of guilt and the damage to national security demonstrated?

Certainly there was no miscarriage of justice where the question of guilt or innocence was concerned. The FBI did its work carefully. Its evidence was sound. The case was properly presented on the whole (though Prosecutor Saypol was severely condemned by higher judges for announcing the indictment of William Mutterperl for perjury during the trial, an action that might have influenced the jury). There can be no argument with the jury’s verdict.

But one must argue with the judge’s sentences. Apart from the issue of Ethel, the sentences meted out to the cooperating witnesses were also excessive—fifteen years for Greenglass, thirty for Gold, all far, far greater than were given for more serious crimes in Canadian and British courts. Were these discrepancies a sign of British and Canadian laxity, or American severity? It turned out that in related cases flowing from Gold’s confession American judges gave longer sentences than even the prosecutors asked for. Perhaps the judges were closer to a public opinion that reacted with horror and outrage and vengeance at the revelation of these crimes, while prosecutors, living with the cases, took a more balanced view.

There were many—I was among them—who accepted the verdict of guilt but felt uneasy at the death sentence. Why did we not try to prevent it? I believe the explanation lies in the role of the Communist party in the campaign to save the Rosenbergs, and the difficulties involved in an effort to stake out an independent position. (I leave aside the question of whether it would have done any good.)

The problem, as I wrote in an article in 1956 in the New Leader, was that there were two Rosenberg cases. One case was the case in the courts, in which guilt was clearly demonstrated. The other case was the case in the streets, where the legal evidence could be obscured and the most outrageous claims made that the Rosenbergs were being persecuted for their political opinions (opinions, by the way, they had not expressed in years, since they had entered secret work, and did not express at the trial, or after the trial). The trial in the courts was conducted by judges, prosecutors, lawyers. The trial in the streets was conducted by political activists, many under the guidance of the Communist party. The death sentence was imposed legally and properly, at the conclusion of the trial in the courts, but it became the basis for an international movement dominated by Communists, which in demanding the exoneration of the Rosenbergs was also demanding the condemnation of the United States, and it was difficult to divorce one from the other.

J. Edgar Hoover argued against the death sentence for Ethel not only because of extenuating circumstances but because he saw that it could become, as it did, the basis of international propaganda against the United States. Others argued against both death sentences, also on pragmatic grounds. Douglas Dillon, then Ambassador to France, sent an “eyes-only” dispatch to John Foster Dulles: “The fact . . . is that even those who accept the guilt of the Rosenbergs are overwhelmingly of the opinion that the death sentence is unjustifiable punishment for offenses as revealed at the trial, particularly when compared with prison terms meted out to British scientists Alan Nunn May and Klaus Fuchs. . . . We should not (repeat not) deceive ourselves by thinking that this sentiment is due principally to Communist propaganda. . . .” This telegram was sent to the White House but was not allowed to reach President Eisenhower.

It was in large part because of the second case, the case in the streets, that the death sentences of the first case managed to stand. Many people refused to become associated with the demand that the Rosenbergs be spared because it was so closely tied, by the political activists who led the movement, to insistence on the innocence of the Rosenbergs and the corruption of the American system of justice. Thus Albert Einstein, who had called for clemency for the Rosenbergs, refused to sign an amicus brief because of the involvement of the Communists in the movement. The second case played a role in making firm and final the death sentences that emerged from the first.

Others besides Ernst and Kaufman come off badly in Radosh and Milton’s account, and perhaps most strikingly Supreme Court Justice William O. Douglas, who voted again and again against reviewing the case—and then, at the last moment, after the Supreme Court had adjourned for the year and scattered, issued a stay of execution. He could have voted with Frankfurter, Black, and other justices on a number of previous occasions to review the case, but refused to do so. Radosh and Milton are kinder to Douglas than Michael E. Parrish in his important article, “Cold War Justice: The Supreme Court and the Rosenbergs” (American Historical Review, 1978). Parrish speculates that Douglas’s political ambitions might have restrained him from voting for a review in which he would publicly have had to take a controversial position. Radosh and Milton, on the other hand, quote Douglas as saying that the Communists wanted the Rosenbergs executed, since they would be more valuable as martyrs than as potential informers (an opinion many others in the case also held). But it makes no sense to suggest, as Radosh and Milton do, that it was for this reason he refused to become involved. Douglas, as Frankfurter believed, had much to answer for.

We do not know what the Supreme Court might or might not have done in the end. In the special session Chief Justice Vinson immediately summoned to vacate Douglas’s stay, the vote was 5 to 4 against the Rosenbergs. On the basis of this narrow judgment, two people were sent to their deaths only a few hours later. There was unseemly haste. Certainly many had cause to expect that the execution would be delayed over the summer to permit time for fuller arguments on the issues raised. One cannot but believe that there was some failure of justice at the end. How else to explain the rapidity, in American terms, with which the death sentence was carried out? We have already spoken of Judge Kaufman’s role, but it was up to the Supreme Court to permit further deliberation, and this it failed to do.

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In the end the temper of the times had much to do with the execution of the Rosenbergs. Tried a few years later, they would very likely have been found guilty, but a death sentence would have seemed less justifiable. Much was changing in 1953: we were, after the first shocks, beginning to live with the grim reality that the Russians possessed the atom bomb and the hydrogen bomb, and not simply because of espionage. Aside from any issue of national security, with the passing years more and more Americans were finding the death sentence repugnant.

Thirty-four years after their trial, there can be no doubt as to the guilt of the Rosenbergs. But there can be considerable doubt that they merited the death sentence. The Rosenberg File gives us good reason to conclude that the sentence was far too harsh, and that it was imposed and carried out at least in part because of the political temper of the times.

¹ I am mystified as to why Professor Alan Dershowitz has not a word to say about Judge Irving Kaufman in his lengthy review of this book in the Sunday New York Times Book Review, August 14, 1983.