Secret Judgment

How the Government Illegally Executed Julius and Ethel Rosenberg

Kenneth R. Kahn's Screenplay for Sale.
The Rosenbergs as people imprisoned.
The final letter from the Rosenbergs to their children.
All published opinions in the Rosenberg case.
Perlin Papers, Part One
Perlin Papers, Part Two
The Crime Library's Case File--The Rosenberg case is about more than the doomed couple. It's a story of deceit, illegalities, abuse of governmental power, judicial hijinks and incompetence.
A vast filmography of anti-communist films created by Hollywood in response to accusations of infiltration and communist influence.
A cinematic answer to the question--Can the Rosenberg Case Be Reopened??
The FBI's Rosenberg Files.
The Trial of the Century--the doomed couple versus the might and power of the United States government. Everything you always wanted to know --From the Implosion lens mold to Judge Kaufman's ridiculous sentencing statement.
A frightened and intimidated Hollywood pitches in for the hearts and minds of Americans.
Citizen Cohn-The Life and Times of Roy Cohn
Were the Rosenbergs illegally executed? Were they spies? How critical to the development of the Soviet bomb were the contributions of the Rosenbergs? A former KGB agent provides his own answer.
The Rosenberg case seen through artists interpretations, including a nice portrait of Roy Cohn as Judas.
The views of Morton Sobell on the Venona decryption project and cables.
CIA Memorandum-Psychological Warfare-January 1953
Testimony of Marshall Perlin Before the House Judiciary Committee-1982
Demand for Investigation into the conduct of U.S.Attorney Irving Saypol.
Boston Review Reader's Forum.
Rosenberg Warriors.
National Committee's Rosenbergs Links
A November 1994 Venona Decrypted Cablegram Regarding the Rosenbergs
A September 1944 Venona Decrypted Cabelgram Regarding the Rosenbergs

"SECRET JUDGMENT"

"EQUAL JUSTICE UNDER LAW" ENGRAVED OVER THE ENTRANCE TO THE UNITED STATES SUPREME COURT

Judicial Canon 17, American Bar Association in effect June 1953:

"A judge should not permit private interviews, argument or communications designed to influence his judicial action, where interest to be affected thereby are not represented before him, except where provision is made by law."

Philip Elman, former law clerk to Justice Felix Frankfurter and Federal Trade Commissioner, worked in the office of the Solicitor General of the United States during the Rosenberg case. Elman wrote, "The Rosenberg case is the most disgusting, saddest, despicable episode in the Court's history in my lifetime. This has nothing to do with whether the Rosenbergs were guilty or innocent, whether Irving Kaufman should have been impeached for his conduct of the trial, any of those things. I'm thinking about the way the case was handled in the Supreme Court."(ELMAN, ORAL HISTORY, COLUMBIA UNIVERSITY, VOLUME 4, PAGE 226)

"The whole thing was an absolute shambles, a disaster for the Court--as well as the Rosenbergs, of course. Frankfurter wrote a little dissent in which he was writing really to me and to other friends of his, former law clerks, whose faith in the Supreme Court had been shaken. We knew the Supreme Court was one institution that worked the way it was supposed to work, where people got a fair shake, where equal justice under law was more than a slogan. And here the whole thing was falling down and we were shattered. This was our court, the Supreme Court of the United States, for which we had feelings of admiration and closeness." (ELMAN, ORAL HISTORY, COLUMBIA UNIVERSITY, VOLUME 4, PAGE 227).

And Frankfurter wrote for us: "This isn't the end, errors are inevitably made but you go on, you don't lose faith in the processes of law." (ORAL HISTORY BY ELMAN, VOLUME FOUR, PAGE 227).

Justice Rehnquist has also been a strong supporter of the death penalty, going back to 1953 when, as a law clerk to Justice Robert Jackson, he wrote that Julius and Ethel Rosenberg, convicted of passing atomic secrets to the Soviet Union, were "fitting candidates" for execution.

"It is too bad that drawing and quartering has been abolished" his memorandum to Justice Jackson stated --"New York Times, July 27, 1986.

"Secret Judgment" is dedicated to the case of Julius and Ethel Rosenberg. It is also the name of a screenplay that I have written available for consideration to agents and producers.

"Secret Judgment" is dedicated to those seeking the truth behind the Rosenberg case, a truth obscured by both left-wing and right wing propaganda, both of which will be examined at this site.

"Secret Judgment" will provide a new perspective based upon primary source research conducted by me in writing my screenplay. At all times, the documents cited in support of my research and conclusions will be fully cited and linked to assist the reader in finding these sources for themselves. The information revealed here will challenge the assumptions not just of the left and right wing constructs surrounding the case but the commonly held and believed assertions accepted as truth by the corporate press.

"Secret Judgment" was created to expose complete politicalization of the United States Supreme Court during the Rosenberg case. The Supreme Court, described by Joseph Sharlitt, author of "Fatal Error: The Miscarriage of Justice that Sealed the Rosenbergs' Fate as, "a polyglot mixture of retired politicians, lawyer-bureaucrats who had risen through the civil service to the top, and a few, genuine intellectual leaders. And even those few--Douglas, Jackson, Frankfurter and Black--had their lapses. Each had a monumental ego sensitive to real or imaginary slights."

"Secret Judgment" exposes the following concerning the Rosenberg case.

One, the Rosenbergs were indicted, tried, convicted and executed under the wrong law.

Two, the jury was never allowed to make a recommendation concerning sentencing. Such a recommendation was not allowed under the Espionage Act of 1917, the law under which the defendants were indicted, tried, convicted and executed.

Three, Judge Irving Kaufman unilaterally sentenced the doomed couple to death.

Four, the Espionage Act of 1917 empowered the judge to sentence defendants to death without a jury recommendation.

Five, the Atomic Energy Act of 1946 was the applicable law because in the government's own indictment, most of the covert acts took place between 1946-1950. 35% of the trial testimony offered by the government concerned acts occurring between 1946-1950. If the defendants were tried under the 1946 Act, they would have received a prison term as did their contemporaries for similar crimes. As a wartime act, the Espionage Act only only covered acts between 1944-1945.

Six, once the defendants were sentenced, the government became schizophrenic. The law enforcement arm, the Department of Justice and the U.S. Attorney's Office, wanted the executions to take place quickly. Yet, there was doubt on the part of J.Edgar Hoover and others (Hoover because of the execution of a woman and a mother) who wanted the Rosenbergs to become a source of information and were willing to commute their sentence. Information uncovered demonstrated both an agency and presidential effort to spare the Rosenbergs if they would provide information about their communist party connections and activities. The steadfast refusal of the Rosenbergs to cooperate forced the government to execute them swiftly.

Seven, Though portrayed as a hero, Justice William O. Douglas, because of his poor relationships with the other justices, failed to move a majority to support a stay of execution, which he unilaterally granted on June 17, 1953. Douglas' inconsistency and wavering of his support of the Rosenbergs did as much to swiftly execute them as the most ardent anti-communists of the day. Any arguments coming from Douglas, no matter how convincing or just, were simply not going to be heard.

Eight, the U.S. government, facing international criticism, which will be documented on this site, led the stampede to execution.

Nine, on June 16, 1953, at a secret meeting arranged by Justice Robert Jackson, the prosecutor at Nuremberg, Attorney General Herbert Brownell and Chief Justice Fred Vinson meet without the Rosenbergs attorneys being present nor were they notified of such a meeting in violation of Judicial Canon 17, in effect in June 1953 which states, "A judge should not permit private interviews, arguments or communications designed to influence his judicial actions, where interests to be affected thereby are not represented before him, except where provision is made by law." It was not just improper and unethical for Vinson to participate, the same applied to Brownell because of a parallel provision for lawyers (Rule 3.5 (b), Model Rules of Professional Conduct, American Bar Association (ABA), August 2, 1983. Canon 3 of Professional Ethics, which prohibits lawyers from making ex parte communications to judges, was adopted by the ABA in August 1908 and was in effect in 1953.

Ten, the secret meeting was documented in an FBI memorandum from Special Agent in Charge A.H. Belmont in a teletype message to J. Edgar Hoover, a copy of which will be included on this site.

Eleven, The Chief Justice sent a personal message to the Attorney General signaling that the Court wished to recovene in special session pretending, of course, that no such secret arrangements had been made beforehand.

The Conventional Wisdom

The Facts

In July 1950, the FBI arrested Julius and Ethel Rosenberg at their New York City apartment. Under indictment, the couple were charged not with espionage but with conspiracy to commit espionage under the Espionage Act of 1917 by United States Attorney Irving Saypol. The case was deemed so important to the United States National Security Establishment that it was to be personally handled by the United States Attorney, his assistant Myles Lanes and Special Assistant Roy M. Cohn.

The indictment charging the Rosebergs, along with Morton Sobell and and Anatoli Yakovlev, cited "overt acts" committed beginning in November 1944 and ending in 1950. The indictment states that, "The defendants did, the United States of America then and there being at war, conspire, combine, confederate and agree with each other and with Harry Gold, David Greenglass and Ruth Greenglass, named as co-conspirators but not as defendants, and with diverse other persons presently to the Grand Jury unknown to violate subsection (a) of Section 32, Title 50, United States Code, in that they did conspire, combine, confederate, and agree, with intent and reason to believe that it would be used to the advantage of a foreign nation, to wit, the Union of Soviet Socialist Republics, to communicate, deliver and transmit to a foreign government, to wit the Union of Soviet Socialist Republics, and representatives and agents thereof, directly and indirectly, documents, writings, sketches, notes and information relating to the National Defense of the United States of America." The indictment went on to specify 11 action committed by the conspirators.

As the indictment charges the defendants with conspiracy to commit espionage in league with others under the Espionage Act of 1917, the defendants were not charged with espionage. This was later to become a subtle yet important distinction seemingly discernible only to the battling attorneys yet a linchpin determining the life or death of the doomed couple.

The Rosenbergs were arrested at the beginning of the ascension of the red scare and executed near the crest of the national hysteria.

THE LEFT WING VIEW

One common factor that the left shares with the right is that both sides are intolerant, inflexible and unwilling to reconcile their views with the fluid, flexible reality that is the political world.

The left wing, particularly the communists, regard the Rosenbergs as martyrs, they regard them as innocent victims of the red scare and the general hysteria of the times fueled by Senator McCarthy, Roy Cohn and numerous others. For me, the early days of the cold war are a subject of lasting fascination. As I have learned more, my views have changed accordingly. As someone trained in history and political science, I have learned that the only true test of understanding an event are the unvarnished facts surrounding that event and untainted primary source documents.

The left believes that the Rosenbergs were innocent. I believe that they were guilty of conspiracy to commit espionage. Since the government never charged them with espionage, as the indictment cited above indicates, I will always use the term "conspiracy to commit espionage."

With some, the case is very much alive. Certainly for the Rosenberg's sons it is alive. One can appreciate the psychological and human factor. One can only imagine what it must to like to live with the reality that the United States government executed your parents. One would seek solace in the notion that they were innocent and were railroaded to their deaths. As with Maureen Faulkner, believing the fiction that Mumia Abu Jamal executed her husband, Philadephia police officer Daniel Faulkner, to face the reality that the real killer escaped long ago and was never the subject of police inquiry, to face the reality that you nearest friends and associates have been lying to you all these years to spare your feelings and to perpetuate a political cover-up knowing that Mumia did not commit the murder, they find themselves committed. The Rosenberg children, and those who cling to the notion that the Rosenbergs were innocent and were framed and railroaded, live in the same reality--a psychological and political cover-up perpetuated for the benefit of survivors and others. The left will never face the reality of the Rosenberg case preferring to live in a twilight zone of unreality, a twilight zone where questions of guilt or innocence are black and white and where the work is simply to convince people that they were innocent and were the victims of cold war hysteria.

In the book "Venona: Decoding Soviet Espionage in America," (pages 17-18), the authors cite,in considering the left-wing view,"The Great Fear: The Anti-Communist Purge under Truman and Eisenhower" page 54, "There is no documentation in the public record of a direct connection between the American communist Party and espionage during the entire postwar period."

"Consequently, Communists were depicted as innocent victims of an irrational and oppressive American government. In this sinister, but widely accepted portrait of America in the 1940s and 1950s, an idealistic New Dealer (Alger Hiss) was thrown into prison on the perjured testimony of a mentally sick anti-Communist fanatic (Whittaker Chambers), innocent progressives (the Rosenbergs) were sent to the electric chair on trumped-up charges of espionage laced with anti-Semitism." Pages 17-18, Venona.

THE RIGHT WING VIEW

Julius and Ethel Rosenberg were the very epitome, the portrait, the characterization of those the United States government portrays as anathema to the existence of the national security state.

America in the 1950s was a nation coming unglued as the grip of the red scare spread from the ruling class seeping into the souls of Americans. The right-wing viewed the Rosenberg case as the verification of its own self-induced paranoia. Just as the left viewed them as innocent martyrs, the right saw them as the epitome of the national security threat, the embodiment of what they had been telling the nation. Here was a couple, young, bright, intellectual, a product of the New Deal, taking their left wing, liberal viewpoint all the way out there to becoming full blown, committed members of the American communist party. To the right-wing opportunists, the Rosenbergs were a threat to national security. To be sure that the nation agreed, the law enforcement, legal, and media assets lined up to send the Rosenbergs on a swift, one-way, no stops trip to Sing Sing's electric chair.

The right wing position was no more dramatised than in the sentencing statement of Judge Irving Kaufman. On page 2448 of the trial transcript, Judge Kaufman remarked, "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. It 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 must pay the price of your treason. Indeed, by your betrayal you undoubtedly have altered the course of history to the disadvantage of our country. No one can say that we do not live in a constant state of tension. We have evidence of your treachery all around us every day--for the civilian defense activities thoughout the nation are aimed at preparing us for an atom bomb attack," adding, "In the light of the circumstances, I feel that I must pass such sentence upon the principles 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 gain must cease (pages 2451-2453, trial transcript--United States vs. Julius and Ethel Rosenberg--copies are available from the National Archives, 201 Varick Street, New York, New York 10014).

The right wing view, along with the views of the case as framed by the national media, became the conventional view asserted by most people when discussing the Rosenberg case. "Secret Judgment"--the website, book and screenplay will present an alternative view that demonstrates the incorrectness of both views bringing the full injustice of the case to public view.

SECRET JUDGMENT--THE REALITY

ERRORS COMMITTED BY EMMANUEL BLOCH

Emmanuel Bloch was a longtime defender of American communists. When the Rosenbergs were indicted and his services retained, Bloch viewed the case as simply one in a long line of cases in which he had represented American communists indicted by the U.S. government. Bloch had no idea what forces were at work to insure his clients were executed by all means, legal and illegal.

The errors committed at trial by Bloch were the following. Bloch's representation deprived his clients of their Sixth Amendment rights to effective counsel.

One, which will explained later in detail, Bloch refused the services and ignored an alternative legal theory offered by attorneys Daniel Marshall and Fyke Farmer. Two, Bloch sent a telegram to Judge Kaufman telling him to reject any pleadings or motions from Farmer and Marshall. Three, during trial, Bloch requested that Judge Kaufman try his clients in camera (without spectators and reporters) during the portion of the trial in which David Greenglass disclosed his sketch of the Nagasaki bomb, and the accompanying testimony, claiming that the information should be kept secret. First, this should have been the government's call, not Bloch. Then, it lent credence and importance to amateurish sketches making them appear more significant than they were. Fourth, Bloch called his clients to the stand exposing them to government cross examinination and a negative, Fifth Amendment implication with the jury. Bloch failed to cross examine Harry Gold, the Soviet courier and a crucial witness. He then told the jury Gold had spoken the truth. At the beginning of his summation, Bloch told the court that, "I would like to say to the Court on behalf of all defense counsel that we feel that you have treated us with the utmost courtesy, that you have extended to us the privileges that we expect as lawyers, and despite any disagreements we have had with the Court on questions of law, we feel we feel that the trial has been conducted and we hope we have contributed our share with that dignity and that decorum that defits an American trial" (page 2167, trial transcript).

Bloch failed to demand that the jury be sequestered. As a result, the jury was allowed to read and hear newspaper and radio reports about the case. When the government manipulated the case by arresting William Perl, a Columbia Univeristy physicist and friend of the Rosenbergs, the "New York Times" on March 14, 1953, carried the news in a front page story. Perl never testified. The government manufactured the arrest as a cynical attempt to manipulate the jury.

As a result of a Freedom of Information Act lawsuit filed by Robert and Michael Meerpool, the Rosenbergs sons, in conjunction with the National Committee to reopen the Rosenberg Case, a number of incendiary government memorandum were revealed for the first time. These memorandum prove actions were taking place in more than Judge Kaufman's courtroom. Interestingly, Roy Cohn remarked, "Before, during and after the trial, the prosecution team --particularly Irving Saypol and I--were in constant communication with Judge Kaufman. I mean private, or what the lawyers cal ex parte communication, without the presence of the defense lawyers. Not that the defense attorneys weren't aware that we were talking to the judge." "The Autobiogrpahy of Roy Cohn" by Sidney Zion" page 68.

SECOND CIRCUIT COURT OF APPEALS

On December 31, 1952, the Second Circuit Court of Appeals (200 F.2d 666) rejected the Rosenbergs plea for release from custody, "upon grounds that the sentences of guilty of conspiracy to violate (the) Espionage Act were imposed in violation of the Constitution or laws of the United States." The Court dismissed the petition and the defendants appealed. Swan, the Chief Judge, ruled that the Rosenbergs were not entitled to relief.

The Rosenbergs alleged that prejudicial newspaper coverage, "some of which was government inspired" was designed to, "bring about a communal prejudgment of their guilt." Bloch submitted newspaper clippings from February 1, 1950-April 3, 1951. The Court determined that during jury questioning, when asked about newspaper coverage, jurors stated that they were not influenced by newspaper coverage. The defense never used all of its peremptory challenges as it seemed they were satisfied with the jury. The Court wrote that the idea of challenging the jury's fairness was based on an "after thought, inspired by the hope of securing a new trial after having exhausted all hope of reversing the verdict by appeal and petitions for certiorari" (page 669). Interestingly, the Court alleged that Bloch ruined his own argument by stating that, "he did not realize at the date of the trial, the extent and the inflammatory character of the publicity as it could not have been revealed to him by the usual sporadic reading of an average newspaper reader." (page 669). Since Bloch stated that he didn't really have time to read the newspaper because he was too busy, the Court turned his argument against him by stating that, "there is no reason to suppose that the jury was more seriously affected." (Page 669).

The arrest of William Perl was rightly cited by Bloch as an example of prosecutorial misconduct. On March 15, 1951, an indictment against Perl, a Columbia University physicist, was unsealed stating that he would corroborate the government's case against the Rosenbergs. The "New York Times" carried a front page article dated March 15, 1951 titled, "Columbia Teacher Arrested, Linked to 2 on Trial as Spies." U.S. Attorney Irving Saypol told the Times, "Perl had been listed as a witness in the current espionage trial. His special role on the stand, Mr.Saypol added, was to corroborate certain statement made by David Greenglass and the latter's wife, who are key government witnesses at the trial." Perl never testified and the incident became a relentless thorn in the side of the Court of Appeals and the Supreme Court as they wrestled with the issue of the conduct of the prosecution team-- Irving Saypol,Roy Cohn and Judge Irving Kaufman.

"When publicity believed to be prejudicial occurs during a trial, the defendant may move for a mistrial or may request the trial judge to caution the jury to disregard it"-- United States v. Weber, 197 F. 2d 237, 239.

The Court remarked that, "In this case, the defendants did neither. We may assume in this case, a cautionary instruction would not suffice, and that, if defendants had then moved for a mistrial, it should have been granted. But they did not so move. This was their deliberate choice after conferring with the judge out of the presence of the jury." (U.S.v Rosenberg, 200 F. 2d at 670).

In the Court's opinion, it was stated that Bloch had spoken to Saypol and received assurances that the U.S. Attorney's Office had not "timed" the Perl incident to inflame the jury (page 670). Later, Bloch stated he did not believe Saypol. The Court wrote that, "This is not a valid excuse. As stated above, Mr. Saypol's motive and 'timing' in opening the indictment are irrelevant; the wrong consisted in the statement made to the press to the effect that the government had expected to use Perl's testimony to cooroborate the Greenglasses, and the intimation that because he had backed out, he had been indicted for perjury. Such a statement to the press in the course of a trial we regard as wholly reprehensible. Nevertheless, wew are not prepared to hold that it vitiates the jury's verdict when there is no allegation or evidence that any juror read the newspaper story and the defendants deliberately elected not to ask for a mistrial. As they thus chose to have the trial continue, they obviously concluded that the prosecutor's statement to the press had not prejudiced the jury against them." (Page 670).

This is amazing!!! Just because the Rosenbergs had an incompetent, well-meaning dolt for an attorney, as indicated. The Perl incident, and wavering by the Second Circuit Court of Appeals, as indicated, is a testament to the shame of the courts. The Perl incident should have reopened the case because of obvious prosecutorial misconduct. It is clear from the language of the Court's opinion that they were more interested in assuring that the Rosenberg were executed. They were fearful of a new trial. The sentence could have been commuted, the indictment modified. The jury merely found the Rosenbergs guilty. It was Judge Kaufman who unilaterally sentenced them to death, despite having an option of a maximum sentence of thirty years under the Espionage Act of 1917.

A Presidential Pardon?

On January 10, 1953, the Rosenbergs sought executive clemency from President Eisenhower. A Report was issued by the Attorney General on February 9, 1953 and transmitted to the White House. The application denied on February 11, 1953. The document is available from the Eisenhower Presidential Library.

CIA Memorandum on the Rosenberg Case

Among a plethora of ironies concerning the Rosenberg case, one of the most "ironic" is that the FBI really only wanted the Rosenbergs to give them information about other espionage cases and communist party activities of which they have knowledge. While I am not apologizing for the deplorable and unconstitutional actions of Hoover's henchmen, the fact remains unstated that if the Rosenbergs had been cooperative with the FBI their sentences would have been commuted. The CIA Memorandum, available at www.realhistoryarchives.com/ collections/disputes/r-ciamem.htm. documents the company's participation in the case.

The purpose of the memorandum was to create a working document to begin a psychological warfare campaign against the doomed couple to convince, "that the Soviet regime they serve is persecuting and ultimateluy bent on exterminating the Jews under its sovereignty. The action desired of the Rosenbergs is that they appeal to Jews in all countries to get out of the communist movement and seek to destroy it. In return, death sentences would be commuted."

The CIA recognized the negative effect of the Rosenberg case on America's claims to alleged moral and political superiority. The Rosenberg were presented as martyrs and heroes being sacrificed on the altar of political expediency and the hysterical red scare. The government realized that if the Rosenbergs could be convinced to recant and provide information, it would be the political coup d'etat of the century. With the imposition of the death penalty, the government faced a choice revealing its schizophrenic character. One, the government needed the Rosenbergs to recant, otherwise if they commuted their sentences, they would appear weak because they lacked a quid pro quo. Two, if they commuted their sentences, it might appear as if the government's indictment had been faulty. Under the CIA's plan, the Rosenbergs could be used to split world communism over the Jewish question, splitting the CPUSA making it vulnerable to infiltration (why when the CPUSA had more FBI agents as members than members). i suppose one cannot have too many party members, even if most of them are FBI agents.

The company hoped that the revealation of Soviet "Doctors" being used on persecuted Jews would act as a catalyst to document Soviet anti-semitism and cause the Rosenbergs to recant. Since the CIA assessed the doomed couple stating, "It is believed that the new development in Soviet policy vis-a-vis the Jews open new possibilities. it is also believed that people of the sort of the Rosenbergs can be swayed by duty where they can not be swayed by considerations of self-interest. They should not be asked to trade their principles for their lives--for one thing, such an appeal to cowardice would almost certainly fail. The argument should be rather that they are about to die for a system that has betrayed and is destroying their own people, that they have a moral obligation of influencing other Jews against communism. In short, they would be offered two things psychologically: (1) an opportunity to recant while preserving their self-respect and honor; (2) a new purpose in life."

The CIA wanted the Attorney General to determine whether the inherent coercion involved in trading lives for recantation would be "repugnant to our traditions of due process." The CIA considered the costs of failure--generations of propaganda showing the American judicial system at its worst--cynical, manipulative, corrupt and extremely political.

The company suggested that, "contact could be made by rabbis, representatives of Jewish organizations, former Communists," adding, "The ideal emissaries would be highly intelligent rabbis, representing reformed Judaism, with a radical background or sympathetic understanding of radicalism, and with psychiatric knowledge." The CIA recommended that these individuals did not need to be armed with a formal promise of' clemency because the Rosenbergs, "already understand that they can obtain commutation if they cooperate with the United States." The company wanted to stay their execution for one to two months and to offer them complete confidentiality in all these proceedings. Finally, the CIA thought if the efforts suceeds, it might encourage others to defect. The idea, of course, was to use the Rosenbergs, "as figures in an efffective international psychological warfare campaign against communism primarily on the Jewish issue."

"Telegraphic Reaction to the President's Denial of Clemency

In a memorandum dated February 12, 1953, William Hopkins, an aide to President Eisenhower, reported to "Mr. Stephens"that the White House received 436 telegrams in opposition to the president's denial of clemency and 57 in support. The majority of those opposing the president's denial of clemency came from New York and California. Less than 10% dealt with the question of guilt or innocence. "The majority of them express(ed) shock at the president's action and urge reconsideration.

The reactions were catagorized as follows: 1. The American conscience cannot accept this decision. 2. Execution would be a miscarriage of justice. 3. In the name of humanity and American decency, there should be reconsideration. 4. Such death sentence is unprecedented. 5. Execution would be a blot on the good name of America. 6. The punishment here is more severe than that given Axis Sally, Toyko Rose, and others of that kind. 7. Some few oppose capital punishment and others simply ask the president to be more merciful.

The president's supporters were catagorzied as follows: 1. Those who congradulated the President. 2. Those who commend his action. 3. Those who think his action took courage. Memorandum available from the Eisenhower Presidential Library

Cabinet Meeting, February 12, 1953

Present: The President, Vice President Nixon, Secretary of State Dulles Secretary of the Treasury Humphrey Secretary of Defense Wilson Attorney General Herbert Brownell Postmaster General Summerfield Acting Secretary of Agriculture True Morse Acting Secretary of Commerce Walter Williams Secretary of the Interior McKay Secretary of Labor Durkin Ambassador Henry Cabot Lodge Director of Mutual Security Harold Stassen Federal Security Administrator Mrs. Hobby Budget Director Dodge Assistant to the President Sherman Adams Administrative Assistant Cutler Congressional Liaison General Persons

Item number 12 at the February 12th meeting concerned the Rosenberg case, "The President reviewed his thinking in regard to denying the Rosenberg application for pardon. He emphasized the unanimity of opinion on the part of officials concerned with the case through its many stages. he mentioned also the unfavorable psychological effect of an Executive reversal of Justice in a case that seemed so clean-cut."

Cabinet Meeting, February 25, 1953:

Present at the meeting was Mr. C.D. Jackson who, "described to Cabinet members the various functions in connection with psychological warfare, and emphasized the need at at this time for using such tactics in regard to appropriate subjects as they appeared. He mentioned especially the Rosenberg decision...as suitable for psychological warfare use."

"At the request of the President, Mr. Brownell reviewed the status of the Rosenberg case before the Supreme Court, and emphasized that the question is purely technical and that the stay would seem without foundation, since the Atomic Energy Act had not been passed until after the time of the crime.

Cabinet Meeting, June 19, 1953:

The President expressed his concern that recent developments may have confused the public and obscured the fac that there is no question concerning the guilt of the Rosenbergs. In discussing the question of clemency, the President stated his intepretation that any intervention by him could be justified only where "statecraft" so dictated in the interests of American public opinion or the reputation of the United States government in the eyes of the world.

Ambassador Lodge and Mr. Jackson called attention to the difficulty of obtaining factual information rather than propaganda on the case. It was agreed that the President should issue a second statement more extensive than the first and emphasizing the involvement of the entire free world in the outcome and handling of the case.

Mr. Brownell indicated that factual information which corrobated the guilt of the Rosenbergs was possessed by the government but could not be used in the trial. The Cabinet agreed that the information continued to be irrelevant and could not be used in connection with last minute developments."

Starting at the beginning, Brownell "reviewed the status of the case before the Supreme Court." I am sure he coincidentally forgot to tell the assembled rulers that he had a secret meeting with the Chief Justice and they agreed to overturn a stay of execution by calling the Court into special session. He assured them and they believed him, that the stay of execution was without merit and that since the Atomic Energy Act had passed in 1946, two years after the initiation of the "conspiracy," that the Act simply didn't apply--and they believed him because it was in their interest to do so.

Next, I can imagine that the government was "concerned" that the public might be confused. They were fearful that the "confusion" might mean that the public would emerge from this government sponsored Ox Bow incident and see that the Rosenbergs were being railroaded to execution in violation of due process, etc. To me, there is no question that they were guilty of conspiring to commit espionage. The issue remaining is their treatment at the hands of the Court of Appeals and the Supreme Court.

Since Brownell indicated that the government possessed, "factual information which corroborated the guilt of the Rosenbergs...but could not be used at trial." Isn't it always the case that the government expects the public to take their word that someone is guilty of something because of their fear of revealing national security-type information in open court. I, for one, do not take the word of the government that they possess such information. If it exists, the government should have been compelled to produce the information in open court. Methods exist for revealing such information in camera without a jury or court reporter. Yet, such secrecy smacks of a star chamber, supposedly anathema to the American way, whatever that is. I do not believe that two people should be executed based on some "secret" information which the government refused to reveal. When it comes to it, the government clearly demonstrated in this case that the political interests of the chosen few were held above those of two doomed people waiting to die at the hands of the state.

Letter from C.D. Jackson to Attorney General Brownell--February 23, 1953.

Jackson's letter stated:

"I hate to make a nusiance of myself, but I can't help thinking that it is worth one more try to crack at least one of the Rosenbergs now that we have the added psychological leverage of anti-semitism.

Cracking the Rosenbergs is not a "third degree" problem but a psychiatric problem. There- fore, would it not be possible to get some really skillful Jewish psychiatrist, say Dr. Karl Binger, to attempt to insinuate himself into their confidence during these next thirty days, and if they did sho signs of coming along, a stay of execution for another thirty or sixty days could be arranged while the work progressed.

I am sure you understand that my interest is not in saving the Rosenbergs. They deserve to fry a hundred times for what they have done to this country. But--if they can be cracked what they can tell us may save the lives of hundreds of thousands of Americans later."

Is it not interesting to note that once a mistake premise is accepted--that the level of espionage committed by the Rosenbergs would cost the lives of millions of people, the Korean war--referring to Kaufman's ridiculous sentencing statement--that the minions of the ruling class are so quick to unquestioningly accept such notions as the gospel? It is clear that the government was caught on the horns of a conundrum--their political futures versus the lives of the Rosenbergs, who they have portrayed to the populace as the devil incarnate, yet they want to get information from them, but only if it can be done in such a way as to save face.

The Beginning of the End

The rush to execution accelerated during the week beginning Saturday June 13, 1953. Saturday afternoon was the "nutcracking" session. The justices met together without clerks or anyone else standing between them. The newest justice acted as the messenger getting needed documents. This was the crucible in which the justices were up against each other without a net. By that Saturday, the Rosenbergs lawyers had made five separate applications to Kaufman and his colleagues. All were denied. They made five applications to the Second Circuit Court of Appeals in New York. They were all denied. Numerous applications had been made to the Supreme Court and those were denied.

Justices Black and Frankfurter were still uneasy that something had gone wrong in the case and were not enamored of the conduct of Judge Kaufman and US Attorney Saypol. In the spring of 1953, Bloch filed a posttrial motion protesting the Perl incident. The incident would cause more consternation and controversy than almost any aspect of the trial. Judge Jerome Frank of the Second Circuit shared that upset. He wrote that the Saypol point had merit, "and for my part I believe the Supreme Court should hear it."

The train ride to Hotel Terminus gathered steam and was in earnest pursuit by the Brownell Justice Department and the Eisenhower administration who were anxious to put the entire matter to rest. On June 8th, Kaufman denied Bloch's motion to stay the execution. On June 9th, it was argued before the Second Circuit without an opportunity for a complete briefing. June 10th, the Rosenberg lawyers filed a document with the Court of Appeals listing the points they would have argued if allowed. June 11th, the Court of Appeals rejected the entire pleading and ordered that the execution go forward on June 18th.

Monday, June 15, 1953 marked the end of the 1952 Term, an ending that could not come too soon for the Court. The Court remained troubled and haunted by two events. The conduct of Kaufman who, while exercising his legal prerogatives to question the defendants, did all he could to aid the government's case and the Perl incident.

Tuesday, June 16, 1953 marked the appearance by farmer and Marshall before Justice Douglas. Despite the refusal of the Court to review the decision, or grant a stay of execution, Farmer met with Douglas and told him that the Rosenbergs were about to die based on evidence that no one had even seen because that idiot Bloch had filed a motion to suppress the Greenglass sketch of the Nagasaki bomb drawn by Greenglass from memory. Farmer told Douglas that the sketch and the accompanying testimony had never been made part of any court record and that neither the Court of Appeals nor the Supreme Court had even seen and yet two people were to be casually executed based on nothing. When Douglas asked the government if this were true, they admitted that it was. Farmer told Douglas that entire prosecution had been based on the wrong law and that the Rosenbergs should have been tried under the Atomic Energy Act of 1946. Under the 1946 Act, a jury recommendation of death would have been necessary. The government would be required to provide proof of an intention to injure the United States. Neither was done in the Kaufman trial.

Wednesday June 17, 1953 opened with the most damming evidence of governmental interference and malfeasance to date. An FBI memorandum from the supervisor of the FBI New York field office, D.M. Ladd to A.H. belmont, a senior FBI official in Washington, documented that on Tuesday the 16th, a secret meeting had occurred between Chief Justice Fred Vinson and Attorney General Herbert Brownell. The meeting was arranged by Justice Robert Jackson, the American prosecutor at Nuremberg. The document states, in part:

Jackson felt that the whole theory of listening to Farmer's motion was ridiculous and Douglas should have turned it down...Vinson said that if a stay is granted, he will call the full Court into session Thursday morning to vacate it."

Black, Jackson and Frankfurter had consistenly voted for review on each of the chief petitions for certiorari. Douglas would have been the needed fourth vote to get the case up on review. He voted to deny certiorari, and a motion to hear argument and a stay. Jackson withdrew his previous vote for review.

After all the successive petitions were denied, they all agreed this was it; they were not going to entertain further applications, they were going to adjourn for the summer and go off, and that's what they all agreed. They denied the last petition for rehearing.

After they went off for the summer, Douglas entertained this stay application by Fyke Farmer, who was not even a lawyer for the Rosenbergs, a stranger to the case. He had this new ground which nobody had ever mentioned before. Nobody knew if it had any merit or not. Looking back at it now, I'm sure it had a lot of merit. The argument is that where there are two statutes imposing punishment fot what is essentially the same offense, you choose the more lenient. But it was a new argument, nobody had mentioned it before, and nobody knew whether there was anything to it. And what happened, this has been recounted over and over again, all I can is that from where I sat in the Solicitor General's office, from what I heard from Frankfurter, the Justices were so livid, so furious with Douglas for granting a stay, he became the accused, the Defendant, not the Rosenbergs.

Recently, I received a letter from Aaron katz, the director of the National Committee to Re-open the Rosenberg Case. I sent Mr. Katz a copy of my screenplay, "Secret Judgment" because I wanted the left-wing view of the work. The screenplay, as it did not deal with the question of the guilt or innocence of the Rosenbergs, might have caused consternation amongst those who feel they were innocent. The Venona files, liberated from the iron grip of the KGB, clearly document the espionage activities of the Rosenbergs. The only issue for me is their post-conviction treatment at the hands of the American criminal injustice system in the person of the judges of the Second Circuit Court of Appeals and the Supreme Court.

Additionally, for purposes of the screenplay and the book I am writing, an additional factor that looms large is that the Rosenberg's refusal to cooperate with the government, along with the waffling of Douglas concerning the stay at various judicial conferences did almost more to insure their executions even considering the number and illegality of secret meetings that took place beginning with the trial court and reaching into the highest levels of the federal government, including cabinet meetings as documented on this site.

The news of the stay of execution granted by Justice Douglas on June 17, 1953, after much vacillation, caused Representative W.M. Wheeler of Georgia to call for the impeachment of Douglas, as reported in the "New York Times" on June 18, 1953. As a result, Vinson called for a special session for Thursday June 18, 1953 at noon. The UPI stated that the session had been requested by Attorney General Brownell. Douglas, having already left on his vacation, would be the only absentee. The only part of the story omitted, of course, was that the special session was no surprise because it had been pre-arranged at the secret meeting documented earlier.

On June 19, 1953, the Rosenbergs were executed. Julius was executed first at 7:04 p.m. and died two minutes later. Ethel was led into the death chamber at 7:11 p.m. and died 15 minutes later. The executions were set to occur before the Jewish Sabbath at 8 p.m. so that they would not be executed during or after the setting of the sun in violation of the Sabbath.

While there were no demonstrations at the prison, there was a march at the train station at Ossining train station near Sing Sing. 30 miles away, in New York City, the police stopped a mass meeting of 5,000 people. They reacted to the demonstration with a hysterical wave of screaming and shouting as the hour for execution arrived.

President Eisenhower reacted by telling the press, "I can only say that by immeasurably increasing the chances of atomic war, the Rosenbergs may have condemned to death tens of millions of innocent people all over the world." (http://wire.ap.org/APpackages/20thcentury /53rosenbergs.html).

The Rosenbergs two sons, Robert and Michael, were 100 miles away in Toms River, New Jersey at the home of their adopted parents, the Meerpools.

Postscripts

On June 10, 1976, the National Committee to Reopen the Rosenberg Case, in conjunction with the Rosenberg sons, obtained FBI memorandums documenting the secret meetings referred to on this site.

On July 27, 1986, the "New York Times" reported that Chief Justice nominee William Rehnquist, while serving as a law clerk in the Supreme Court to Justice Robert Jackson, remarked that the Rosenbergs were, "fitting candidates" for execution adding that, "It is too bad that drawing and quartering has been abolished."

In 1975, Director Alvin Goldstein released a film titled, "The Unquiet Death of Julius and Ethel Rosenberg." The film was a Blue Ribbon Wiiner at the 1975 American Film Festival.

In 1999, "Landmark American Trials: Julius and Ethel Rosenberg? was released.

"Secret Judgment" is a screenplay written by Kenneth R. Kahn, Editor and Publisher of "Behind the Barricades: A Journal of Left Libertarian and Current Politics." The script challenges both the left and the right wing assumptions about the case. The script does not focus upon the guilt or innocence of the doomed couple. Instead, the central theme of the script is the post conviction treatment of the Rosenbergs by the Second Circuit Court of Appeals and the Supreme Court.

Kenneth R. Kahn is currently working on a book titled "Secret Judgment" incorporating many primary source documents concerning the case. As with the script, the book attacks both the left and the right wing perspectives of the case.

"SECRET JUDGMENT"

"EQUAL JUSTICE UNDER LAW" ENGRAVED OVER THE ENTRANCE TO THE UNITED STATES SUPREME COURT