The early fifties was a. time of extraordinary paranoia. Joseph Sharlitt in convincingly described how that paranoia reached into the highest courts of the United States and led to a total abandonment of legal ethics by some of the Court’s members. The Rosenbergs were charged with conspiracy to commit espionage under the Espionage Act of 1917. They were sentenced to death by Judge Kaufmann after a trial during which their attorney refused to allow evidence which would have helped his clients to be offered in court on the grounds it would have hurt national security. The item in question was drawings made by an army machinist (who had turned state’s evidence) which showed how the implosion lens worked. The lens was used to detonate the atomic bomb. Ironically, as Sharlitt shows, most of the information, and much more, had been delivered to the Russians by Klaus Fuchs, employed as a top scientist on the Manhattan Project, in one of the most successful espionage episodes ever. (Ironically Fuchs received only a, 14 year sentence with time off for good behavior from the British.) Kaufmann, in his sentencing peroration, showed that he believed the Rosenbergs to be ultimately guilty of the death of 50,000 soldiers killed during the Korean War. Ironically, Kaufmann, was probably the only jurist who did not commit any legal blunders during the whole sorry episode, according to Sharlítt. The Supreme Court was bitterly divided over the whole case with Frankfurter, Black, and Douglas arguing for review. Black, the former Ku Klux Klan member, is really the only ,justice who appears to be a man of principle. Douglas vacillated from one position to the next, infuriating his fellow ,justices by appearing to vote for the Rosenbergs only if it would not affect a negative outcome. Frankfurter was interested only in the technical legal aspects.
An attorney from Tennessee, Fyke Farmer, on his own time, and at his own expense, appealed to Justice Black that the Rosenbergs had been tried under the wrong statute. He argued that they should have been tried under the Atomic Energy Act of 1946 which dealt with conspiracies to steal atomic secrets and which permitted the death penalty only if recommended by a jury. Douglas issued a stay of execution, despite an informal agreement among the ,justices that they would not have anything further to do with the Rosenberg case. Chief Justice Vinson had forseen that Douglas might try something and during several very improper ex-parte conversations with Attorney General Brownell planned a. strategy to prevent any interference with the executions. Brownell had the executions moved up by several hours and Vinson ordered the court back into special session at which time the court vacated Douglas’s stay of execution: the first time such a. stay had been vacated in the history of the court.
To make matters worse the court appeared to have acted with unseemly haste. Sharlitt argues that the unparalleled fear existing then, heightened by Joseph McCarthy's witch-hunts, the Russian invasion of Berlin ,just two days before the Rosenbergs were due to be executed, and the Korean War, created a frame of mind that caused otherwise sensible and deliberate men to violate basic moral and ethical principles. About ten years ago a letter surfaced which was written by one of Justice Jackson’s clerks (Jackson was one of the justices on the court at the time of the Rosenberg trial.) This clerk wrote Jackson that the Rosenbergs were "fitting candidates for execution. " He added, " it is too bad. that drawing and quartering has been abolished.”
