Invitation to an Inquest, by Walter & Miriam Schneir
The Rosenberg Affair
Invitation to an Inquest.
by Walter and Miriam Schneir.
Doubleday. 467 pp. $5.95.
United States v. Julius and Ethel Rosenberg wasn't the Dreyfus, the Mooney, the Sacco-Vanzetti case of the early 1950's. But much has been written as if it were. Walter and Miriam Schneir's addition to the literature is an earnest, industrious, long, artless, tedious, and finally intemperate book, which mounts the most uncompromising argument yet for the innocence of the Rosenbergs. It makes a radical charge, to mince no words, of malicious prosecution and judicial murder, conceding nothing on the score of forgery, perjury, and rank prejudice to the Dreyfus and Sacco-Vanzetti affairs. But the book fails; these charges will not stick. For other reasons, relatively slighted by the Schneirs, the Rosenberg case was nevertheless an unforgivable disgrace to the American administration of justice. By misdirecting the sense of outrage that the case should never cease to provoke, Invitation to an Inquest blurs and dilutes it.
Putting aside marginal issues, and also the charges against Morton Sobell, the basic prosecution case against the Rosenbergs was as follows. David Greenglass, a machinist, was the brother of Ethel Rosenberg. In July 1944, being then an enlisted man in the army, he was assigned to Los Alamos, New Mexico, where his work in a machine shop involved, of course, the development of the atom bomb. In November 1944, David's wife, Ruth, visited him in New Mexico. Before Ruth left New York, Ethel Rosenberg and her husband Julius, acting in the interests of the Soviet Union, asked Ruth to obtain information from David about his work. David cooperated. When, in January 1945, David came home to New York on furlough, he gave Julius some additional information, which was in writing and included a sketch of a high-explosive lens mold of a sort being experimented with for use in an atom bomb. A few nights later, at the Rosenberg apartment, it was agreed that David would continue to transmit information from Los Alamos, directly or through Ruth, who was going to return with him and live in Albuquerque. Someone would approach Ruth, or both Ruth and David, in Albuquerque. Since the Greenglasses might not know this person, Julius and Ethel cut the side of a jello box in half along an irregular line, giving one half to the Greenglasses and telling them that the person who would visit them would have the other, fitting half.
To continue with the prosecution's case: On the evening of June 2, 1945, Harry Gold, who had had no contact with Julius or Ethel Rosenberg but was following the instructions of a Russian agent, arrived in Albuquerque after a meeting in Santa Fe with the British scientist and spy, Klaus Fuchs. Gold spent the night in a rooming house. First thing the next morning (Sunday, June 3), he registered at the Hilton Hotel in Albuquerque for the day. Then he appeared at the Greenglass apartment, announced that he came from Julius, presented the appropriate half of the jello-box side, and gave Greenglass an envelope containing five hundred dollars. Greenglass asked him to return later in the day. He did, in early afternoon, and received from Greenglass an envelope with information. David Greenglass said that he expected to be in New York on furlough around Christmas, and that if Gold wished to get in touch with him then, he could call his brother-in-law, Julius, whose telephone number David produced.
In February 1950, after Klaus Fuchs had been arrested in Britain, Julius—still according to the prosecution—came to the Greenglasses and advised them to leave the country. David insisted he needed money, and Julius eventually brought $4,000 wrapped in brown paper. Gold was arrested on May 23, 1950. David Greenglass, who had made no attempt to leave the country, was taken into custody on June 15, and Julius and Ethel Rosenberg were arrested respectively on July 17, and August 11, 1950.
The evidence supporting this case—again, marginal issues and Morton Sobell aside—consisted of the testimony of David and Ruth Greenglass and Harry Gold; of a photostat of an Albuquerque Hilton registration card indicating that Harry Gold was there on June 3, 1945; of a deposit by Ruth Greenglass of four hundred dollars in cash in an Albuquerque bank on June 4; and of the testimony of another brother-in-law of David Greenglass, to whom David in the spring of 1950 gave $4,000 wrapped in brown paper to keep for him. (This money, in the same wrapping but minus a hundred dollars that Ruth had withdrawn from it, went to pay the Greenglasses' lawyer after the arrest of David and Ruth.)
David Greenglass and Gold, both of whom had made full confessions, pleaded guilty to the crime of espionage. Gold received the maximum sentence short of death, thirty years; Greenglass was given fifteen. Ruth Greenglass, although she also confessed, was never tried. Julius and Ethel Rosenberg consistently maintained their innocence, were convicted, sentenced to death, and executed before nightfall on Friday, June 19, 1953. The theory on which their defense maintained their innocence was that the Rosenbergs had had nothing to do with, and no knowledge of, the crime of the weak, foolish, and malicious David and of his strong-willed, money-mad virago of a wife. David and Ruth bore false witness against the Rosenbergs, making up a story out of whole cloth, and picturing themselves as minor figures manipulated by a master spy, in order to curry favor with the prosecution and escape the death penalty. Harry Gold, according to this story, told the truth—the Rosenberg defense never cross-examined him at the trial—and so did the Greenglasses insofar as their own crime was concerned; indeed, the guilt of the Greenglasses was essential to this theory, since it constituted the motive for implicating the Rosenbergs.
This defense requires one to accept not only that the Greenglasses committed perjury, but that at least two other witnesses who implicated the Rosenbergs in broader espionage activities also lied. And it requires a belief that someone else, undiscovered and unhinted at anywhere by anyone, acted as the intermediary between Greenglass and the Russian agent who sent Gold to Albuquerque. Yet if this were all, the possibility would have to be admitted, although it is a remote possibility, for concerted and consistent perjury on the part of a number of people is a rare occurrence. But-there is at all events a serious flaw in the defense. Harry Gold represented himself as coming from “Julius,” and testified that he was directed by David to call David's brother-in-law in New York. Unless Gold was here supplying David with a convenient lie of his own, this is a damning bit of evidence that makes everything else fall into place against the Rosenbergs.
Invitation to an Inquest abandons this difficult theory of the Rosenbergs' innocence, only to adopt an even more improbable one. The thesis of Walter and Miriam Schneir is that everything in the case was a tissue of lies. There never was such a crime as the indictment charged. Not only were the Rosenbergs not implicated, but neither were the Greenglasses or Harry Gold. There was nothing to be implicated in. David Greenglass never did anything more serious than to take a bit of uranium out of Los Alamos for a souvenir. Harry Gold never visited him in Albuquerque. It was all made up, from beginning to end, with the active cooperation, indeed at the behest, of the F.B.I., and with the connivance of the prosecution. Harry Gold was a psychotic in search of punishment. David Greenglass hated his sister, and he and his wife were in a frenzy over the possibility that they might be punished for the theft of uranium, and very likely in a frenzy over other unknown troubles as well. Two other witnesses, the famous Elizabeth Bentley and one Max Elitcher, were also pathological liars.
Again, so far, this is highly improbable, but barely possible. It is improbable, to say the least, that David Greenglass, fearful of detection and conviction on a relatively minor charge, would invent an elaborate and monstrous story convicting himself of a capital offense, and then curry favor by implicating his sister and brothers-in-law. He might, after all, more easily have implicated them in the uranium theft, the charge, so to speak, that set him off. But there are greater difficulties. What of Gold's registration in the Albuquerque Hilton? It was, we are asked to believe, forged by the F.B.I. This hypothesis begins with a curious defect in the registration card, which was never brought to light at the trial. On the face of the card appears a notation by the hotel clerk of the date, June 3, of the day rate, and of the intended check-out at 8:00 P.M.—specific and detailed entries bearing out Gold's story with precision. The back of the card, however, carries a machine stamp with an inconsistent date and time—June 4, 12:30 P.M., 1945. There is no known explanation for this inconsistency. Some sort of error or mix-up no doubt occurred in June, twenty years ago, which is likely to remain unraveled for all time. The poorest possible explanation is F.B.I, forgery. Surely anyone going to the trouble to forge evidence in support of Gold's presence in Albuquerque on June 3, 1945, would not make the idiotic mistake of putting an inconsistent date on the back of the card. And what of the $400 deposited by the Greenglasses on June 4? The Greenglasses made other deposits in Albuquerque banks, say the Schneirs, and their financial affairs are indeed altogether not easy to understand. But there were no other deposits of this size, and the coincidence in dates demands explanation. Well then, the argument goes, the F.B.I, knew of this deposit, told Gold about it, and he accommodatingly made up a story of giving money to the Greenglasses the day before. But then why did he not say that he gave them $400? Why did he say $500?
There is no need to profess any faith in the unvarying, saintly regard of the F.B.I, and of its present head, for truth and justice. Police and prosecutors, the F.B.I, among them, when in pursuit of a suspect, are capable of persuading themselves that something is true which would not appear necessarily so to an objective observer, and then of cutting corners in the sincere and passionate belief that the end—capture of the criminal whose guilt appears to them certain—justifies the means. But they do not routinely suborn perjury and commit forgery. To be sure, this was no routine case. Unquestionably the pressure was on. Undoubtedly the hysteria which Joseph R. McCarthy would then go on to exploit was upon us. And yet more than speculation is needed to make out forgery by the F.B.I. Do the Schneirs adduce anything more?
Harry Gold was a curious little character, quite capable of lying, as apparently Miss Bentley was also—capable of lying, that is; a curious little character she was not, rather an odd and extremely disagreeable one. These latter adjectives would seem to be applicable also to David Greenglass and his wife, and there is some color to the hypothesis that David at least was no stranger to the occasional untruth. That is all very well, but how did Gold and Greenglass independently come to tell lies that were not only consistent but that also meshed precisely at crucial points? The Schneirs' answer is that the F.B.I, coached them both. The Schneirs, who generally took enormous pains to uncover much new material, dug up the record of Gold's story as told to his counsel in Philadelphia before the arrest and interrogation of Greenglass. They attempt to demonstrate out of this record that Gold manufactured great portions of his story after the F.B.I, had got hold of Greenglass, thus supporting the hypothesis that the F.B.I, was the conduit through which the two men arrived at mutually consistent lies. The Schneirs wind up proving, however, quite the opposite.
The remarkable feature of this early record is that the rudiments of Gold's story were there. Of course, at the very beginning, his head was full of Klaus Fuchs; so was everyone else's. Only under prodding did Gold recall that he had also met a G.I. and his wife in Albuquerque. Was there a recognition sign? “I believe that it involved the name of a man and was something on the order of Bob sent me or Benny sent me or John sent me or something like that.” The names of the G.I. and his wife were lost to Gold's memory until the F.B.I, gave him a series of names, including David and Ruth Greenglass, and he picked them out. But Gold also remembered at this early date that the G.I. told him that he was to have a furlough, and gave him “the name and the telephone number, of I think his father-in-law, or possibly an uncle of his, who lived somewhere in the Bronx of New York. Unfortunately, I have been unable to recall the name and the telephone number. . . .”
This is the not unusual state of an unrefreshed memory. The Schneirs seem to rely on a notion that the only proper method of interrogation is for the questioner to sit and listen to a suspect, without prodding his memory or asking him to confirm or deny evidence gathered elsewhere. But there is no such pristine obligation, nor should there be. If, then, the F.B.I, prodded Gold into elaborating these rudiments into a full story by putting to him material from the Greenglass confession, and prodded Greenglass to confess by asking him to affirm or deny so much as was known of Gold's story—if this was the method of interrogation, as no doubt it was, it was normal and proper, and does not in itself destroy or even substantially weaken the credibility of Gold and Greenglass. It remains probable and more than probable that the Greenglasses and Gold told a basically true story, and that the essence of the charge against the Rosenbergs was demonstrated.
The Rosenberg case is nevertheless a ghastly and shameful episode. There is first of all the death sentence, and secondly the death sentence, and thirdly the death sentence, and then again the death sentence. The prosecution had not in so many words asked for it, but the trial judge, Irving R. Kaufman of the United States District Court for the Southern District of New York, since elevated to the Court of Appeals, imposed it on these young parents of two small boys. Despite a world-wide clamor, no one in the government of the most powerful civilized nation on earth—not the Court of Appeals, not the Supreme Court of the United States, and not President Eisenhower—could bring himself to stop the execution.
Judge Kaufman justified the ferocity of his sentence in the following statement:
I consider your crime worse than murder. . . In committing the act of murder, the criminal kills only his victim. . . . But in your case, I believe your conduct in putting into the hands of the Russians the A-bomb years before our best scientists predicted Russia would perfect the bomb has already caused, in my opinion, the Communist aggression in Korea, with the resultant casualties exceeding 50,000 and who knows but that millions more of innocent people may pay the price of your treason. Indeed, by your betrayal you undoubtedly have altered the course of history to the disadvantage of our country. . . . We have evidence of your treachery all around us everyday—for the civilian defense activities throughout the nation are aimed at preparing us for an atom bomb attack. . . . In the light of the circumstances, I feel that I must pass such sentence upon the principals in this diabolical conspiracy to destroy a God-fearing nation, which will demonstrate with finality that this nation's security must remain inviolate; that traffic in military secrets, whether promoted by slavish devotion to a foreign ideology or by a desire for monetary gains, must cease.
Now this statement is without foundation in any known facts, least of all in the record of the Rosenberg case itself, and it is a terrible heartbreak that in the second half of the 20th century, in the United States, a man and a woman should have been put to death by this unchecked onslaught of anxiety and mindless surmise.
There is utterly no reason to believe that Greenglass, a lowly machinist and not a very intelligent one, carried the secret of the atom bomb out of Los Alamos in his head, and through numerous intermediaries transmitted it to scientists working in Russia. The only scientific testimony at the trial was at best ambiguous concerning the value of the information transmitted by Greenglass. And if “our best scientists” predicted that the Russians would take a while to manufacture their own bomb, that was not because the basic secret was impenetrable to them, any more than it has proved to be to other nations, but because of difficulties and expenses of production which have since also delayed other nations. It is true that espionage systems are not run by atomic scientists, and are meant to collect information, any information: others elsewhere put together the pieces, discard the high percentage of dross, and use what is of value. Conceivably, Greenglass contributed something of value. But it was nothing short of unthinking, fretful guessing to arrive at the conclusion that he put the bomb “into the hands of the Russians” in any sane sense of these words. And to have proceeded to pile on the heads of the Rosenbergs guilt for the Korean war was an act of judgment in the best traditions of some superstition-ridden tribe.
Neither the court of appeals nor the Supreme Court re-examined the sentence. The obstacle that stood in the way of re-examination is a judge-made rule that appellate courts will not review sentences, but only the validity of the conviction. Yet this was a death sentence unprecedented in the United States in peacetime, and one demonstrably resting on preposterous reasoning. Part of the rationale of the general rule is that an appellate court will not normally know the considerations that moved the trial judge to impose a particular sentence, and might by its episodic interference disturb such consistency as the sentencing process can attain in any judge's courtroom. Neither of these factors was applicable here. The circumstances were special, and there have since been cases in which the Court o£ Appeals for the District of Columbia has departed from the general rule in special circumstances. At any rate, no such rule binds the President's exercise of his commuting and pardoning power. There is reason to believe that President Eisenhower's Attorney General, Herbert Brownell, Jr.—under pressure from the F.B.I., no doubt—tried to use the overhanging threat of the death sentence to persuade the Rosenbergs to confess and possibly implicate others. The Rosenbergs didn't, and their bluff was called. The sentence was carried out, in effect, in retribution for their silence. This action is disgusting. There is no other word for it.
Nothing else in the Rosenberg case equals the inexpiable horror of the death sentence. But there are other disturbing aspects—for example, a certain statement to the press by the chief prosecutor, U.S. Attorney Saypol, about evidence that he did not introduce in court. “Such a statement to the press in the course of a trial,” said Judge Swan on review in the Court of Appeals, “we regard as wholly reprehensible.” Nevertheless, the Court of Appeals held, properly enough perhaps, that the jury's verdict was not thus vitiated. More important and disturbing are the events of a few days before the execution.
On June 16, 1953, three days before the Rosenbergs were executed, counsel for one Edelman, acting as a friend of the court, appeared before Mr. Justice Douglas in chambers, the Supreme Court having just adjourned for the summer. Counsel asked the Justice to grant either a writ of habeas corpus or a stay, on the ground that the death sentence was unauthorized, since the Atomic Energy Act of 1946 had superseded the Espionage Act of 1917, under which the Rosenbergs were tried and sentenced. The Atomic Energy Act permits a death sentence for the crime with which the Rosenbergs were charged only upon recommendation of the jury, and where the offense was committed with an intent to injure the United States. These conditions were not fulfilled in the sentencing of the Rosenbergs. Here was a brand new argument. Edelman's attorneys had asked counsel for the Rosenbergs to raise it some two months earlier. The Rosenbergs' lawyer had refused to do so—one of a number of curiously weak and ineffective decisions made in the conduct of their defense—and that was why it had not been put forward till now.
Justice Douglas thought that the argument had substance, and he granted a stay of execution, as any single Justice is undoubtedly authorized to do. Under the stay, the Rosenbergs would have lived through the summer while the new issue was argued out in the lower courts, and possibly brought on appeal to the Supreme Court. But there was a rage upon the country to get the Rosenbergs over with, and the rage, sad to relate, was upon a majority of the Court as well.
At the request of the Attorney General, the late Chief Justice Fred M. Vinson convened what is assuredly the most extraordinary special session in the Court's history. Justice Douglas granted his stay on June 17. At about noon the following day, Thursday, June 18, all nine Justices, some of whom had begun to scatter out of Washington three days before, were sitting in the courtroom listening to the arguments of the government, which was asking them to vacate the stay and let the execution proceed. The relevant papers in the case and the government's briefs were in the Justices' hands no more than three hours before the session, and where a few of the Justices who arrived late were concerned, no more than minutes before. By noon on the next day the Court had decided the issue against the Rosenbergs, and vacated the stay. During the afternoon, a further petition for a stay pending disposition of another appeal for executive clemency was also denied, and that same evening the Rosenbergs were put to death.
What was wrong with these proceedings is stated in the late Justice Frankfurter's dissent:
Painful as it is, I am bound to say that circumstances precluded what to me are indispensable conditions for solid judicial judgment. They precluded me, and now preclude me, from saying that the legal issue that was raised before Mr. Justice Douglas was without substance.
It is inexplicable that this substantial issue was not raised earlier by the Rosenbergs' counsel. But it was not. When at last it emerged, the Supreme Court of the United States did not take anything like the normal time that it gives to the deliberate decision of such issues. It was a mistake for the Court not to have entered, much earlier, upon a full-scale review of the entire case.1 The Court's pliant cooperation, at the last, in rushing the case to a conclusion in the death-chamber—that was not a mistake, but a denial of its own function, a sin against its very reason for being.
And so the Rosenbergs were electrocuted. Just before, Ethel scribbled on a scrap of paper: “I cry for myself as I lie dead—for shall they know all that burned my brain and breast. . . .” Who shall forget these words, and that this nation killed her, because one of its judges thought that she had caused the Korean war? And there was no one to stop him!
1 There were several opportunities for granting review, all of which the Court declined. But the Schneirs are wrong in stating categorically that only Justice Black consistently favored review. Only Justice Black consistently noted dissent from orders refusing to entertain the various petitions for review. But practice varies with respect to noting dissent from such orders. Justice Black habitually does, as does Justice Douglas, who, it may therefore be surmised, was not consistently in favor of review. Habitually and on principle, the late Justice Frankfurter followed the practice of not noting his dissents from orders refusing review. From the first, however, beginning with a memorandum filed in November 1952, Justice Frankfurter hinted as broadly as his otherwise unvaried practice permitted—actually, more broadly than his practice should have allowed—that he too was consistently in dissent.