On the 19th day of June 1953, Ethel and Julius Rosenberg were executed in the electric chair, in a wicked hysterical 'anti-communist' and 'anti-Russian' conspiracy. The F.B.I. (Federal Bureau of Investigation); the Security Services; and the entire American Judicial procedure administration; and, also the entire Judiciary of the American "Supreme Court"; all played a prominent part in that conspiracy to kill. Even the President of the United States was involved in the conspiracy.; THEY ALL CONSPIRED TO MURDER THE ROSENBERG's. So, intent were they, and, virtually all the other 'anti-communist' hatred in the land, to execute the Rosenbergs; that the Judiciary of the "Supreme Court" and the "Criminal Justice Administration" even 'conspired to pervert the course of justice' in order to hasten their deaths.
Just a few hours before their execution an appeal had been lodged based on the evidence that they should not be executed because no Jury had reccomended the death penalty. It was alleged that the Rosenbergs had been charged with 'espionage' under the wrong law. One, law, allowed the 'death penalty' for that offence against the United States; but, another law, only permitted the 'death penalty' if the Jury had actually reccomended it. It was alleged that the Rosenbergs offence of, 'espionage', had been tried under the wrong law. And, Mr JUSTICE DOUGLAS agreed. He ordered a 'stay' of the execution. Here below is his dissenting opinion:
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It should be noted, however, that those in the security services and those in the 'administration', that wanted their deaths; were so angry at the 'stay' being granted; that they ordered and arranged that the entire "Supreme Court Judiciary" should be convened in a special session the very next day. And in this 'session' by the vote of 7 to 3 the convictions and the 'death penalty' was upheld. Wthin a few hours thereafter, on that very same day, both the Rosenbergs's were dead. America will forever live with 'their blood' on its hands.
NOTE: The sons and family of Ethel Rosenberg have now published a petition in order to persuade the present American government administration to exonerate 'their mother', claiming and asserting that she was never a spy. See the petition here: https://www.rfc.org/ethel
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But, to really understand this 'anti-communist' hysteria and the 'witch-hunting' that took place to expose the communists and those of 'socialist' ideas; the true 'terror' of that time can be readilly seen in the book "The Great Fear" by DAVID CAUTE. This great book is now available at AMAZON very cheaply. Read all about the book here: http://pamphletteer.blogspot.co.uk/2016/10/the-great-fear-this-book-bydavid-caute.html
Here is Mr Justice Douglas dissenting opinion:
ETHEL & JULIUS
ROSENBERG: MR. JUSTICE DOUGLAS, dissenting.
When the motion
for a stay was before me, I was deeply troubled by the legal question tendered.
After twelve hours of research and study I concluded, as my opinion indicated,
that the question was a substantial one, never presented to this Court and
never decided by any court. So I issued the stay order.
Now I have had the
benefit of an additional argument and additional study and reflection. Now I
know that I am right on the law.
The Solicitor
General says in oral argument that the Government would have been laughed out
of court if the indictment in this case had been laid under the Atomic Energy
Act of 1946. I agree. For a part of the crime alleged and proved antedated that
Act. And obviously no criminal statute can have retroactive application. But
the Solicitor General misses the legal point on which my stay order was based.
It is this -- whether or not the death penalty can be imposed without the
recommendation of the jury for a crime involving the disclosure of atomic
secrets where a part of that crime takes place after the effective date of the
Atomic Energy Act.
The crime of the
Rosenbergs was a conspiracy that started prior to the Atomic Energy Act and
continued almost four years after the effective date of that Act. The overt
acts alleged were acts which took place prior to the effective date of the new
Act. But that is irrelevant for two reasons. First, acts in pursuance of the
conspiracy were proved which took place after the new Act became the law.
Second, under Singer v. United States, 323 U.S. 338, no overt acts were
necessary; the crime was complete when the conspiracy was proved. And that
conspiracy, as defined in the indictment itself, endured almost four years
after the Atomic Energy Act became effective.
The crime
therefore took place in substantial part after the new Act became effective,
after Congress had written new penalties for conspiracies to disclose atomic
secrets. One of the new requirements is that the death penalty for that kind of
espionage can be imposed only if the jury recommends it. And here there was no
such recommendation. To be sure, this espionage included more than atomic
secrets. But there can be no doubt that the death penalty was imposed because
of the Rosenbergs' disclosure of atomic secrets. The trial judge, in sentencing
the Rosenbergs to death, emphasized that the heinous character of their crime
was trafficking in atomic secrets. He said:
"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."
But the Congress
in 1946 adopted new criminal sanctions for such crimes. Whether Congress was
wise or unwise in doing so is no question for us. The cold truth is that the
death sentence may not be imposed for what the Rosenbergs did unless the jury
so recommends.
Some say, however,
that since a part of the Rosenbergs' crime was committed under the old law, the
penalties of the old law apply. But it is law too elemental for citation of
authority that where two penal statutes may apply -- one carrying death, the
other imprisonment -- the court has no choice but to impose the less harsh
sentence.
A suggestion is
made that the question comes too late, that since the Rosenbergs did not raise
this question on appeal, they are barred from raising it now. But the question
of an unlawful sentence is never barred. No man or woman should go to death
under an unlawful sentence merely because his lawyer failed to raise the point.
It is that function among others that the Great Writ serves. I adhere to the
views stated by Mr. Chief Justice Hughes for a unanimous Court in Bowen v.
Johnston, 306 U.S. 19, 26-27: "It must never be forgotten that the writ of
habeas corpus is the precious safeguard of personal liberty and there is no
higher duty than to maintain it unimpaired. Ex parte Lange [18 Wall. 163]. The
rule requiring resort to appellate procedure when the trial court has
determined its own jurisdiction of an offense is not a rule denying the power
to issue a writ of habeas corpus when it appears that nevertheless the trial
court was without jurisdiction. The rule is not one defining power but one
which relates to the appropriate exercise of power."
Here the trial
court was without jurisdiction to impose the death penalty, since the jury had
not recommended it.
Before the present
argument I knew only that the question was serious and substantial. Now I am
sure of the answer. I know deep in my heart that I am right on the law. Knowing
that, my duty is clear.
APPENDIX TO
OPINION OF MR. JUSTICE DOUGLAS.
Julius Rosenberg
and Ethel
Rosenberg,
Petitioners,
v.
The United States
of America.
Application for a
Stay.
June 17, 1953.
MR. JUSTICE
DOUGLAS.
These are two
applications for a stay of execution made to me after adjournment of the Court
on June 15, 1953. The first raises questions concerning the fairness of the
trial of the Rosenbergs. I have heard oral argument on that motion and
considered the papers that have been filed. This application does not present
points substantially different from those which the Court has already
considered in its several decisions to deny review of the case, to deny a stay
of execution, and to deny a petition for a writ of habeas corpus. While I
differed with the Court and thought the case should have been reviewed, the
Court has spoken and I bow to its decision. Although I have the power to grant
a stay, I could not do so responsibly on grounds the Court has already
rejected.
Another motion for
stay, together with a petition for writ of habeas corpus, challenges the power
of the District Court to impose the death sentence on the Rosenbergs. The
Espionage Act, @ 2 (a), 40 Stat. 217, 218 (50 U. S. C. @ 32 (a)) provides:
"Whoever,
with intent or reason to believe that it is to be used to the injury of the
United States or to the advantage of a foreign nation, communicates, delivers,
or transmits, or attempts to, or aids or induces another to, communicate,
deliver, or transmit, to any foreign government, or to any faction or party or
military or naval force within a foreign country, whether recognized or
unrecognized by the United States, or to any representative, officer, agent,
employee, subject, or citizen thereof, either directly or indirectly, any
document, writing, code book, signal book, sketch, photograph, photographic
negative, blue print, plan, map, model, note, instrument, appliance, or
information relating to the national defense, shall be punished by imprisonment
for not more than twenty years: Provided, That whoever shall violate the
provisions of subsection (a) of this section in time of war shall be punished
by death or by imprisonment for not more than thirty years . . . ."
(Italics added.)
Section 4
provides:
"If two or
more persons conspire to violate the provisions of sections two or three of
this title, and one or more of such persons does any act to effect the object
of the conspiracy, each of the parties to such conspiracy shall be punished as
in said sections provided in the case of the doing of the act the
accomplishment of which is the object of such conspiracy. Except as above
provided conspiracies to commit offenses under this title shall be punished as
provided by section thirty-seven of the Act to codify, revise, and amend the
penal laws of the United States approved March fourth, nineteen hundred and
nine." 40 Stat. 219, 50 U. S. C. @ 34.
The indictment,
which was returned in 1951, charged a conspiracy to violate @ 32 (a) with an
intent to communicate information that would be used to the advantage of a
foreign nation, viz., Soviet Russia. The conspiracy was alleged to have
continued from June 6, 1944 to and including June 16, 1950. The overt acts of
the Rosenbergs which were alleged took place in 1944 and 1945.
On August 1, 1946,
the Atomic Energy Act became effective. Sections 10 (b)(2) and (3) provide:
"(2) Whoever,
lawfully or unlawfully, having possession of, access to, control over, or being
entrusted with, any document, writing, sketch, photograph, plan, model,
instrument, appliance, note or information involving or incorporating
restricted data -- [n1]
"(A)
communicates, transmits, or discloses the same to any individual or person, or
attempts or conspires to do any of the foregoing, with intent to injure the
United States or with intent to secure an advantage to any foreign nation, upon
conviction thereof, shall be punished by death or imprisonment for life (but
the penalty of death or imprisonment for life may be imposed only upon
recommendation of the jury and only in cases where the offense was committed
with intent to injure the United States); or by a fine of not more than $
20,000 or imprisonment for not more than twenty years, or both;" (italics
added).
"(B)
communicates, transmits, or discloses the same to any individual or person, or
attempts or conspires to do any of the foregoing, with reason to believe such
data will be utilized to injure the United States or to secure an advantage to
any foreign nation, shall, upon conviction, be punished by a fine of not more
than $ 10,000 or imprisonment for not more than ten years, or both.
"(3) Whoever,
with intent to injure the United States or with intent to secure an advantage
to any foreign nation, acquires or attempts or conspires to acquire any
document, writing, sketch, photograph, plan, model, instrument, appliance, note
or information involving or incorporating restricted data shall, upon
conviction thereof, be punished by death or imprisonment for life (but the
penalty of death or imprisonment for life may be imposed only upon
recommendation of the jury and only in cases where the offense was committed
with intent to injure the United States); or by a fine of not more than $
20,000 or imprisonment for not more than twenty years, or both." (Italics
added.) 60 Stat. 755, 766, 42 U. S. C. @ 1810 (b)(2), (3).
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n1 It would seem
that the secrets involved in this case were "restricted data" within
the meaning of the Act. Section 10 (b)(1) defines that term as meaning
"all data concerning the manufacture or utilization of atomic weapons, the
production of fissionable material, or the use of fissionable material in the
production of power, but shall not include any data which the Commission from
time to time determines may be published without adversely affecting the common
defense and security."
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It is apparent
from the face of this new law that the District Court is without power to
impose the death penalty except
-- upon
recommendation of the jury
and
-- where the
offense was committed with an intent to injure the United States.
Neither of those
conditions is satisfied in this case, as the jury did not recommend the death
penalty nor did the indictment charge that the offense was committed with an
intent to injure the United States. If the Atomic Energy Act of 1946 is
applicable to the prosecution of the Rosenbergs, the District Court unlawfully
imposed the death sentence.
The Department of
Justice maintains that the Espionage Act is applicable to the indictment
because all of the overt acts alleged took place before the passage of the
Atomic Energy Act of 1946. Petitioners maintain that since the indictment was
returned subsequent to the Atomic Energy Act and since the conspiracy alleged,
though starting prior to that time, continued thereafter, the lighter penalties
of the new Act apply.
Curiously, this
point has never been raised or presented to this Court in any of the earlier
petitions or applications. The first reaction is that if it was not raised
previously, it must have no substance to it. But on reflection I think it
presents a considerable question. One purpose of the Atomic Energy Act was to
ameliorate the penalties imposed for disclosing atomic secrets. As S. Rep. No.
1211, 79th Cong., 2d Sess., p. 23, stated, the problem in drafting @ 10 was to
protect the "common defense and security" and yet assure
"sufficient freedom of interchange between scientists to assure the Nation
of continued scientific progress."
The Rosenbergs
obviously were not engaged in an exchange of scientific information in the interests
of science. But Congress lowered the level of penalties to protect all those
who might be charged with the unlawful disclosure of atomic data. And if the
Rosenbergs are the beneficiaries, it is merely the result of the application of
the new law with an even hand. In any event, Congress prescribed the precise
conditions under which the death penalty could be imposed. And all violators --
Communists as well as non-Communists -- are entitled to that protection.
This question is
presented to me for the first time on the eve of the execution of the
Rosenbergs without the benefit of briefs or any extended research. I cannot
agree that it is a frivolous point or without substance. It may be that not
every death penalty imposed for divulging atomic secrets need follow the
procedure prescribed in @ 10 of the Atomic Energy Act. If the crime was
complete prior to the passage of that Act, possibly the old Espionage Act would
apply. But this case is different in three respects: First, the offense charged
was a conspiracy commencing before but continuing after the date of the new
Act. Second, although the overt acts alleged were committed in 1944 and in
1945, the Government's case showed acts of the Rosenbergs in pursuance of the
conspiracy long after the new Act became effective. n2 Third, the overt acts of
the co-conspirator, Sobell, were alleged to have taken place between January,
1946, and May, 1948. But the proof against Sobell, as against the Rosenbergs,
extended well beyond the effective date of the new Act. n3 In short, a
substantial portion of the case against the Rosenbergs related to acts in
pursuance of the conspiracy which occurred after August 1, 1946.
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n2 Thus the Government's
brief filed July 25, 1952, in opposition to the petitions of the Rosenbergs and
of Sobell for certiorari stated:
"In February
1950, when the arrest of Klaus Fuchs was publicized, Julius [Rosenberg] went to
David [Greenglass] and told him that Fuchs' contact was the man who had got
data from Ruth and David in June 1945; that Fuchs' arrest meant that the
Greenglasses' activities would be discovered; and that therefore they would
have to leave the country (R. 523). These warnings were renewed at the time of
the arrest of Harry Gold (R. 525-526, 709) in May 1950. During that month,
Julius gave David $ 1,000, and promised him more, in order that David and Ruth
might discharge their obligations and leave the country (R. 526, 710). In
addition, he gave them specific and detailed instructions as to how to get to
Mexico and ultimately to the Soviet Union (R. 526-530, 710).
"Julius
informed the Greenglasses that he and his wife also were going to flee and that
they would meet the Greenglasses in Mexico (R. 529, 713). Rosenberg did, in
fact, ascertain from his physician what inoculations were needed for a trip to
Mexico (R. 851), and he had passport pictures taken of himself and his family
(R. 1427-1429).
"On May 30,
1950, in accordance with Julius' request, the Greenglasses had six sets of
passport pictures taken, five of which they gave to Julius (R. 530-531, 712).
The sixth set was retained by Greenglass and introduced in evidence at the
trial (R. 531, 712; Ex. 9A, 9B). A week later, Julius visited the Greenglasses'
apartment and gave David $ 4,000 wrapped in brown paper (R. 532, 713; Ex. 10).
He asked David to repeat the flight instructions, which David did (R. 532-533).
David gave the $ 4,000 to his brother-in-law, Louis Abel, who, after David's arrest,
turned it over to the latter's lawyer (R. 536, 713, 794-795)."
n3 The
Government's brief dated July 25, 1952, in opposition to the petitions for
certiorari filed by the Rosenbergs and by Sobell summarized some of Sobell's
activities as follows:
"In June
1948, [Max] Elitcher decided to leave the Bureau of Ordnance to take a job in
New York (R. 256). When he informed Sobell of his plans, the latter urged him
not to do anything until he discussed the matter with Rosenberg (R. 256). *
Pursuant to arrangements made by Sobell, Elitcher met Rosenberg and Sobell in
midtown New York (R. 256-257). When Rosenberg was told about Elitcher's plans,
he tried to persuade Elitcher to remain in Washington, stating that he needed a
source of information in the Navy Department (R. 257). Rosenberg further stated
that he had already made plans for Elitcher to meet a contact in Washington (R.
257). During this conversation, Sobell also attempted to persuade Elitcher to
stay at the Bureau of Ordnance; he told Elitcher, 'Well, Rosenberg is right,
Julie is right; you should do that' (R. 257).+
* "Elitcher
testified that Sobell said, 'Don't do anything before you see me. I want to
talk to you about it, and Rosenberg also wants to speak to you about it' (R.
256)."
+ "Elitcher,
nonetheless, did not change his mind, and shortly afterwards changed his
employment (R. 257, 255)."
"Sobell then
left and Elitcher had dinner with Rosenberg (R. 257). During the course of
dinner, Rosenberg said that money could be made available for the purpose of
sending Elitcher to school to improve his technical
status (R. 258). Elitcher asked Rosenberg how he had got 'started in this
venture' (R. 258). Rosenberg replied that a long time ago he had decided that
this was what he wanted to do; that he made it a point to get close to people
in the Communist Party and kept getting from one person to another until he
finally succeeded in approaching a Russian 'who would listen to his proposition
concerning this matter of getting information to Russia' (R. 258).
"A month
later, in July 1948, Elitcher drove with his family from Washington, D. C., to
New York City, preparatory to changing his job (R. 259). On the way, he noticed
that he was being followed (R. 259-260). Upon his arrival in New York, he
proceeded to Sobell's home, where he planned to stay overnight (R. 259). When
Elitcher told Sobell of his fear that he had been followed, Sobell became angry
and said that Elitcher should not have come to his house; that he had some
valuable information in the house that he should have given Rosenberg some time
ago, information that was 'too valuable to be destroyed and yet too dangerous
to keep around' (R. 260-261). Over Elitcher's protests, Sobell insisted the
information be delivered to Rosenberg that night. Sobell then took a 35
millimeter film can from his house, and, accompanied by Elitcher, drove to
Manhattan. While Elitcher waited in the car, Sobell left to deliver the can to
Rosenberg. When Sobell returned, Elitcher asked him what Rosenberg thought about
his being followed (R. 261). Sobell replied that Rosenberg said that he had
'once talked to Elizabeth Bentley on the phone but he was pretty sure she
didn't know who he was and therefore everything was all right' (R. 261). The
two then returned to Sobell's house (R. 261)."
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I do not decide
that the death penalty could have been imposed on the Rosenbergs only if the
provisions of @ 10 of the Atomic Energy Act of 1946 were satisfied. I merely
decide that the question is a substantial one which should be decided after
full argument and deliberation.
It is important
that the country be protected against the nefarious plans of spies who would
destroy us.
It is also
important that before we allow human lives to be snuffed out we be sure --
emphatically sure -- that we act within the law. If we are not sure, there will
be lingering doubts to plague the conscience after the event.
I have serious
doubts whether this death sentence may be imposed for this offense except and
unless a jury recommends it. The Rosenbergs should have an opportunity to
litigate that issue.
I will not issue
the writ of habeas corpus. But I will grant a stay effective until the question
of the applicability of the penal provisions of @ 10 of the Atomic Energy Act
to this case can be determined by the District Court and the Court of Appeals,
after which the question of a further stay will be open to the Court of Appeals
or to a member of this Court in the usual order.
So ordered.
