By Judge Avern Cohn
There's a new wave of attention being paid to the case of Julius and Ethel Rosenberg, a married couple who were charged with passing atom bomb secrets to the Soviet Union, convicted of espionage, and electrocuted in 1953 the only two American civilians executed for spying during the Cold War.
Their convictions and executions have long been controversial; there is now a renewed flurry of interest in the case, ignited partly by two new books, Anne Sebba's biography, "Ethel Rosenberg, An American Tragedy" (St. Martin's Press 2021) and Francine Prose's novel "The Vixen" (Harper, 2021), both of which were reviewed in The New York Times this June.
Seven decades after their deaths it is, indeed, time to look back at their trial, their convictions, and their death sentences. The verdict was harsh; the verdict of history also should find fault with both the trial judge, Irving Kaufman, and President Dwight D. Eisenhower, who, in denying the Rosenbergs clemency, found justification for the extreme penalty, both by greatly exaggerating the scope and effects of what they had done. Judge Kaufman, who at the time had been a U.S. District judge for less than two years, said in sentencing them that the Rosenbergs' treachery was the cause of "the Communist aggression in Korea."
President Eisenhower said their actions "may have condemned to death tens of millions of innocent people all over the world."
Neither claim has been borne out by history. In the years since their executions, most of the attention directed towards the case has been paid to whether the evidence at trial justified their convictions. Much less attention has been paid to the death sentences imposed.
I spent 40 years on the federal bench as a U.S. District Court judge, and I can say that a review of the trial record shows clearly that their lawyer, Emanuel Bloch, did a poor job in their defense. Admittedly he was handicapped by the Rosenbergs' refusal to admit wrongdoing. However, there is no good reason for Bloch's failure to take into consideration and bring before the court the role that a far more important spy, Klaus Fuchs, played in disclosing to the Russians the technology from which the atom bomb was developed.
Such information was actually available at the time.
Fuchs, who unlike the Rosenbergs, actually worked at Los Alamos, was arrested in Great Britain in January 1950 and pleaded guilty and sentenced to 14 years on March 1, 1950. Fuchs had been fully debriefed by the end of 1950. The Rosenbergs weren't arrested until the summer of 1950 and went to trial in March 1951. They were found guilty three weeks later, sentenced to death one week after that on April 5, 1951, and ultimately executed a little over two years later.
There was never any effort by Bloch or anyone else during the nearly three years between the Rosenbergs' arrest and their execution to compare the value of the information passed on by Fuchs to the value of that passed on by Julius Rosenberg after receiving it from David Greenglass, his brother-in-law.
The consensus now is that Fuchs's information was far more significant than that transmitted by Rosenberg. The Oxford physicist Frank Close wrote in 2019 that it was "primarily Fuchs who enabled the Soviets to catch up with Americans," in the race to build the bomb. That much was already clear at the time of the Rosenberg trial. The Joint Committee on Atomic Energy of the U.S. Congress in its study "Soviet Atomic Energy," released in April 1951, has separate sections describing Fuchs' role and that of Greenglass, but has no discussion of the Rosenbergs' role.
The Manhattan Project to develop the atom bomb was a massive effort involving many scientists who originally came from many countries; as a U.S. Department of Energy online publication "Espionage and The Manhattan Project" (1940-45) noted long afterwards, "It seems highly unlikely in retrospect that penetration of the Manhattan Project could have been prevented."
In 1954, during the hearing that ultimately revoked J. Robert Oppenheimer's security clearance, General Leslie Groves, the famous manager of the Manhattan Project, testified that the data disclosed by the Rosenbergs was of only minor value.
Most devastatingly, Soviet master spy Alexander Feklisov, in his autobiography "The Man Behind the Rosenbergs" (Enigma, 2001), said that Klaus Fuchs was the principal source of Russia's knowledge of the secrets of atom bomb technology. Feklisov also said that, considering the little benefit the Soviet Union derived from Rosenbergs' espionage, their execution was a bad day in the history of American justice. Feklisov should know; he was the KGB agent managing the Rosenbergs as well as, for a time, Fuchs. In his later years he was an intermediary who played a role in resolving the Cuban Missile Crisis.
David Holloway, author of "Stalin and the Bomb" (Yale, 1996), also makes it clear that Fuchs was the main source of Russia's information. In sum, Fuchs' role was largely public knowledge at the time of the Rosenbergs' trial.
So why didn't their defense make use of it? There is no reason in the record explaining why. Nor was there anything resembling proportionate justice in the sentences that were handed down. The Rosenbergs were the only ones who got death. Ethel Rosenberg's role seems merely to have been typing up reports her husband gave her and refusing to confess. As noted above, Klaus Fuchs, on the other hand, was sentenced to a mere 14 years and served just nine years and four months, and then was allowed to immediately emigrate to East Germany.
David Greenglass, Julius Rosenberg's brother-in-law, the man who actually passed the information on to the Soviets, was sentenced to only 15 years after he pleaded guilty to espionage and served just nine and a half.
Why then did the Rosenbergs get the death penalty?
The government had offered them a deal: Their lives would be spared if they confessed and provided the names of other spies. This they refused to do.
Instead, they issued a statement in which they said, "By asking us to repudiate the truth of our innocence, the government admits its own doubts concerning our guilt ... we will not be coerced, even under pain of death, to bear false witness."
The trial record indicates that Julius Rosenberg was guilty of espionage, and that his wife was a willing collaborator. They certainly deserved some punishment.
But sentencing in the United States is supposed to be governed by the doctrine of proportionality, first expressed by the Italian philosopher and criminologist Cesare Beccaria (1738-94.) This concept may have been best expressed in everyday language by Gilbert and Sullivan in their "Mikado":
"Let the punishment fit the crime."
Sentencing the Rosenbergs to death was a wildly disproportionate penalty, and disproportionate and arbitrary sentencing was a large part of the reason that the U.S. Supreme Court found the death penalty itself unconstitutional in 1972, with Justice Potter Stewart writing in the 1971 case of Furman v. Georgia that we "cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."
Regardless of our view of capital punishment, clearly the Rosenbergs' execution was, indeed, a dark day for American justice.
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Avern Cohn was a U.S. District Court judge for the Eastern District of Michigan from 1979 to 2019. He was assisted in the research by author Jack Lessenberry.
