The New York Daily News Lawsuit: A Tangled Web

dailynews-1964

[Part 2 of 2]

In the wake of the May 1963 failure of Linus Pauling’s first libel trial versus the New York Daily News, Pauling received a letter from his secondary attorney in the case, J.P. Tonkoff.  In it, Tonkoff wrote

It was a pleasure to represent you, even though the outcome was disastrous; and I still insist that the disaster was brought about by stupidity and nothing else.

In using the word ‘stupidity’ Tonkoff was referring to the court tactics deployed by Pauling’s primary attorney in the case, Francis Hoague. And in addition to his anger over his perceptions of Hoague’s incompetence as a lawyer, Tonkoff also noted that Hoague had shorted him on his compensation for out-of-pocket expenses incurred during the trial. Indeed, Tonkoff suspected that Hoague might have pilfered some of the funds that Pauling had meant to be directed toward Tonkoff.

Around the same time, Francis Hoague also wrote a letter to Pauling about the outcome of the court case. In it, he conceded partial culpability for the poor result.

I am deeply regretful that the Daily News case did not come out in your favor. I know that it could have been tried better than it was….Whether the case was badly tried or satisfactorily tried, I put my best efforts into it; and whatever mistakes I made were not from lack of concern and thought on my part. I certainly was fully aware that this was an important case not only to you but to the issue of freedom of speech and association and to the peace movement….Of one thing I am sure, and that is that whatever caused defendant’s verdict it was not due to any failure or shortcoming on your part….Despite the unhappy ending, it has been a truly wonderful experience for me to have been associated with you and Ava Helen in these two cases over the past two years. You are the most moral and courageous people I have ever known.

In June, Tonkoff wrote another letter to Pauling, expressing mounting discontent with his colleague.  By now it was clear the relations were heading due south between the two lawyers.

I am convinced that Hoague is incompetent to be in charge of your case. If Hoague believes that this is a libelous statement he can bring an action against me, and I will establish truth of the statement beyond a shadow of a doubt….I unhesitatingly state to you that the further away Hoague is from the court room when this case is retried, the better off you are going to be. Personally, I am certain that the failure of the court to inform the jury that the publication was libelous per se is reversible error.

That month, Francis Hoague motioned for new trial; a motion that was rejected. The decision upset Hoague and at that point he decided to turn over responsibility of the case to Eleanor Piel, which was Pauling’s wish as well.


Pauling notes re: expenses incurred by the Daily News case.

Pauling notes re: expenses incurred by the Daily News case.

Meanwhile Pauling, likely spurred by his correspondence with J.P. Tonkoff, became suspicious of his past financial dealings with Francis Hoague. After studying his records, he found that Hoague had underpaid him from the settlement of the Bellingham case and that Hoague had indeed not supplied sufficient funds to Tonkoff for out-of-pocket expenses. After finally receiving the full Bellingham settlement money, Pauling decided to pay Tonkoff’s balance directly, as Hoague refused to release additional funds to Tonkoff and insisted that Tonkoff was lying.

As all of this was playing out, Tonkoff wrote a number of letters to Hoague, CC’d to Pauling, that voiced his frustration. In one response, Hoague wrote to Tonkoff

I do not know what your full purpose is in sending me these long written tirades with a copy to Dr. Pauling. I am certain that one of your purposes is to blacken me as much as possible in Dr. Pauling’s eyes. This is neither decent nor ethical, and you know it.

He also asked that Tonkoff withdraw his involvement in the case.

Concurrently, Hoague and Pauling began to discuss an agreement to transfer responsibility for the case over to Eleanor Piel. Hoague suggested that he receive one-third of 50% of the net settlement if they won, and that Piel receive two-thirds of 50%. Pauling would cover all legal costs and out-of-pocket expenses if they lost.

Around this same time, Tonkoff wrote back to Hoague concerning his suggestion that Tonkoff withdraw from the case.  As one might expect, Tonkoff didn’t agree with the idea.

Now if you think for one moment that after I supplied to editorial upon which the case was brought, and after drawing the complaint upon which the action was tried, associated New York counsel who appeared because of their feeling toward me and not toward you and who were responsible for getting the case at issue, preparing the instructions which I know you couldn’t possibly prepare, taking town days out of my office and listening to you butcher this case, plus a substantial amount of out-of-pocket expenses and, among other things, furnishing free transportation to you to New York, that I will resign from this case as counsel because you ask me to, you are sadly mistaken. If Dr. Pauling, after he has an opportunity to examine, investigate, and determine the verity of the foregoing facts, decides to retain you as counsel, I demand that he personally advise me of his decision, and then we will go from there.

In the letter, Tonkoff also stated that Hoague was attempting to overcharge Pauling for his handling of the case, as the normal litigation fee for libel suits was one-third of the settlement, not half. Pauling agreed with Tonkoff that 50% of the settlement was too much.

As the situation continued to get messier, Pauling moved in and made a final decision. He wrote to Hoague

I am not satisfied with the handling of the Daily News case. I feel, of course, that I share in the responsibility for its outcome. I relied upon you, but I feel now that it might have been wise for you to have discussed the matter of handling the case with me, in New York, and perhaps to have discussed the differences between you and Tonkoff….I propose for your consideration that your withdrawal be on the following basis. You will give up all claim to any share in any sum obtained by settlement or by decision in court, after the agreement to withdraw as my counsel has been made.

In the letter Pauling also stated that Tonkoff should likewise withdraw from the case and that Hoague withdraw his financial understanding with Eleanor Piel.

Pauling then wrote a separate letter to J.P. Tonkoff personally asking him to withdraw from the case. Tonkoff and Hoague both agreed to Pauling’s requests, at which point the Daily News case was completely transferred over to Piel.


dailynews-1965

In July 1963, Eleanor Piel compiled and formally submitted an appeal to the lower court ruling of Pauling’s libel suit versus the Daily News. One year later, the Circuit Court of Appeals confirmed the original jury’s verdict. Piel then filed a Petition for Rehearing, but in the next month, August 1964, this petition too was denied.

Undaunted, Piel and Pauling then decided to file a petition for certiorari with the Supreme Court. But in January 1965, the court decline to hear the case.

Indeed, this case and others like it had very little hope for success following the Supreme Court’s 1964 ruling in New York Times Co. v. Sullivan, which set a higher standard for libel of public figures and made it nearly impossible for individuals like Pauling to successfully pursue grievances of this sort. And so ended a decidedly messy chapter in Pauling’s long and complicated history of court action.

The Strange Saga of the New York Daily News Lawsuit

New York Daily News opinion piece of September 2, 1961.

New York Daily News opinion piece of September 2, 1961.

[Part 1 of 2]

As readers of this blog know, Linus Pauling was a prominent public figure who became especially well-known for his campaign against nuclear bomb testing. The “Appeal by American Scientists to the Governments and Peoples of the World,” circulated by Pauling and his wife in 1957 and 1958, garnered the signatures of over 11,000 scientists from around the world, each of them condemning the detonation of nuclear weapons in the atmosphere. The petition received a great deal of attention and ultimately led to Pauling’s receipt of the Nobel Peace Prize in 1963.

The petition also came about in the midst of the Cold War, and Pauling’s protests made many Americans uncomfortable and even angry. Much of the public saw his efforts to work with communist countries as evidence of communist sympathies and, by extension, betrayal of the United States. Many newspaper editors around the country took a similarly dim view and attacked Pauling in print for his actions. Naturally, Pauling worried about the impact that articles of this sort might make on his reputation, and he chose to fight back against numerous media sources through libel lawsuits.

On September 2, 1961, the New York Daily News published an editorial titled “Two Johnny Come-Latelies” that criticized Pauling’s anti-testing activism and mocked him for his efforts in light of the resumption of bomb testing in the Soviet Union. The piece suggested that

For years, a couple of semi-prominent American loudmouths have been agitating against nuclear weapons and weapon tests – the best defense the West has against Soviet Russian and Chinese Red manpower. [Norman] Cousins and Pauling now profess to be horrified by Khrushchev’s announcement of Soviet resumption of nuclear weapon tests…But all that Pauling has done about it is to record a plea to his friend in the Kremlin to reconsider…It’s nice to have these two on the American side for once, however belatedly and lukewarmly. But their ideas on meeting the Khrushchev threat are no better than their longstanding proposals that the West cripple itself.

Reader Louis B. Settner wrote to Pauling informing him of the opinion piece and likewise wrote a letter to the editors of the Daily News that defended Pauling and objected to the editorial’s tone. The Daily News refused to publish Settner’s letter, but the protestations to the piece were far from over.


In October, Pauling responded to Settner, writing that the actions of the editors

are shocking, and of course it is shocking that the Daily News would not publish your letter. The captive press in the United States is a great danger to civilization. I am pleased to tell you that I probably shall institute suit for libel against the Daily News, on the basis of the defamatory editorial.

Francis Hoague, Pauling’s Seattle-based lawyer in a concurrent libel lawsuit filed against the Bellingham, [Washington] Herald, offered to take on the case for a fee of one-third of any settlement reached out of court or for half of a settlement arrived at in court. Hoague had already taken care of most of the preparation required for the Bellingham case, which was filed in response to editorials published in late November and early December 1960, and likely saw himself as a natural fit for this new complaint.

The case against the Bellingham paper, one of Pauling’s first lawsuits, was instigated in early 1961 and proceeded with relative rapidity. The dispute reached a settlement out of court in April 1962 with Pauling agreeing to damages of $16,000 plus a retraction. As it turned out, this was one of only two libel lawsuits, out of eight filed in total, that ended in Pauling’s favor.


List of East Coast-based character witnesses supplied by Pauling to his lawyer, Francis Hoague.

List of East Coast-based character witnesses supplied by Pauling to his lawyer, Francis Hoague.

Throughout 1962, Pauling’s team worked gather information and depose witnesses. As had been the arrangement in Bellingham, Francis Hoague worked on the Daily News case in collaboration with another more experienced lawyer, J.P. Tonkoff, though Pauling’s contract was technically with Hoague alone, and not Tonkoff.

Hoague and Tonkoff had worked well together on the Bellingham case, but they became very frustrated with each other as work on the Daily News complaint moved forward. Over time, Tonkoff came to believe that Hoague was incompetent as a litigation lawyer and expressed a wish that he were in charge of the suit, rather than Hoague.

In February 1963, the Daily News suffered a damaging blow in the form of a $201,000 verdict against the paper for having libeled a different plaintiff. This particular suit was filed by Paul J. Kern, a project manager for the New York City Housing Authority, whom the Daily News had declared to be a communist. Eleanor J. Piel, Kern’s high-profile lawyer, was a key player in the success of Kern’s suit.

Pauling’s complaint first came to trial in May 1963. Pauling’s chief counsel, Francis Hoague, included in his tactics a large number of character witnesses who spoke positively of Pauling’s character, and ultimately this strategy backfired. One of the character witnesses, chemist (and future Nobel laureate) Martin Karplus, spoke of the trial and the verdict in a 2013 oral history interview conducted by the Oregon State University Libraries.

…it was in New York, the trial, and so I went down and did testify for him, as did various other people. And then, as I remember it, he actually lost the case because the judge felt, ‘look, if you’re going to have all these people testifying for you, a libel suit really doesn’t make any sense’…and the judge said this, I remember, was that he had all these sterling witnesses, so he wasn’t harmed by what they [the Daily News] wrote.


At the end of May, Pauling met with Francis Hoague, to inform him that he would be appealing the decision and that Eleanor Piel was going to take over the Daily News case. As Pauling documented in a note to himself

I mentioned that I thought that Mrs. Piel, with her experience and knowledge of the New York courts and the opposing lawyer, could do a better job than Mr. Hoague himself. I pointed out that I felt that he was not tough enough for Mr. Carter and the New York courts.

As we’ll see next week, the situation became rather strange at this point.

The World Responds to the Rosenberg Trial

Los Angeles Examiner photo, ca. June 1953.  Note the partially obscured placard at left referencing Pauling's support for clemency.

Los Angeles Examiner photo, ca. June 1953. Note the partially obscured placard at left referencing Pauling’s support for clemency.

[Part 3 of 3]

The trial of Julius and Ethel Rosenberg attracted huge attention from an international audience that found itself polarized over the trial and sentencing of two Americans accused of spying for the Soviet Union. The length of the Rosenberg affair, from its beginning as a news item in early March 1951 through the appeals leading up to the couple’s executions on June 19, 1953, allowed for much public discussion and debate about the legality and morality of the hearing and punishments that the Rosenbergs received.

The question of the couple’s guilt played little role in these discussions – especially after their deaths, when broader focus shifted to the lengthy jail sentence issued to Morton Sobell. One did not have to buy in to the innocence of the Rosenbergs or Sobell to believe that the sentences they received were out of line with sentences issued to past conspirators or spies. Klaus Fuchs, for example, who had admitted to sharing secrets stolen from Los Alamos, received only fourteen years in prison, while confessed spy David Greenglass was sentenced to fifteen years in prison. Greenglass’ wife Ruth, the likely perpetrator of the crimes for which Ethel Rosenberg was executed, was never tried at all.

Those protesting the Rosenberg decision further argued that it had set an ominous precedent for future espionage cases and, as such, had compromised the United States’ standing on the global stage. The affair likewise emphasized the growing fear of Communism, the troubling grip of McCarthyism, and the excesses associated with the Cold War as played out in the US. When the Rosenbergs were sentenced to death, protests of outrage emerged around the world, including condemnations issued by the Pope and the president of France. Despite the cacophony, important actors within the United States government did not reconsider the sentences, as the prevailing belief was that a show of mercy could be construed as weakness.


urey-citizen

The discord that emerged over the sentences led popular scientists such as Albert Einstein, Linus Pauling and Harold Urey to speak out alongside a broad spectrum of other cultural figures, including Jean-Paul Sartre and Frida Kahlo.  Urey, winner of the Nobel Prize for Chemistry in 1934, was a particularly vocal supporter of both the Rosenbergs and Sobell, and he used his status as a major scientific figure to advance his argument. Urey was a physical chemist who, among other achievements, discovered deuterium through isotope separation and ultimately played a major role in the development of the atomic bomb by working on the enrichment of uranium.  He used his expertise as an atomic scientist to specifically argue against the importance of the data that the Rosenbergs had been accused of giving to the Soviets.

But it was not only popular public figures who spoke out; large protests were held outside of U.S. consulates in London, Milan, and Paris and, in February 1953, a New York Times survey reported that the Rosenberg case was the “Top issue in France” at the time. The case resonated in particular with the French due to connections that were drawn between the Rosenbergs and Alfred Dreyfus, a French Jew accused of treason in 1894 whose case served as another instance of public opinion and popular press playing a role in a loyalty trial. As might be expected, the Rosenbergs likewise found support with left-leaning intellectuals and associated publications.


Advertisement from the National Guardian, December 25, 1952.

Advertisement from the National Guardian, December 25, 1952.

In August 1951, one such publication, the National Guardian news periodical, published a seven-part series that examined, critically, the ruling handed down at the Rosenberg trial. This was the first paper to do so and the series prompted such a strong response from readers looking to act that it prompted, in October 1951, the formation of the National Committee to Secure Justice in the Rosenberg Case. William Rueben, author of the first article in the series, served as acting chairman of the group, and it was through this committee that Linus Pauling publicly voiced his support for the Rosenbergs and lent his name to the couple’s cause.  Over time, branches of the committee or other pro-Rosenberg action groups emerged all around the world, including Britain, France, Austria, Belgium, Denmark, Italy, Sweden, Switzerland, Germany, Ireland, Israel, and parts of Eastern Europe.

A primary tactic of the National Committee to Secure Justice in the Rosenberg Case was to circulate correspondence written by the Rosenbergs from death row to help garner support for their cause. These letters depicted the Rosenbergs as normal people who were trying to do what was best for their children’s future by securing peace and standing up for their beliefs. The letters dealt very little with the specific details of their case or the charges that were made against them. Instead, the releases emphasized the Rosenbergs’ hopes that their death sentences might be reevaluated in an environment devoid of the fear and hysteria that had surrounded them and their trial from the outset. The committee also released a series of pamphlets that encouraged the public to read about the case and to judge for themselves.


Pauling's letter to President Truman, January 1953.

Pauling’s letter to President Truman, January 1953.

Calling attention to the science of the case was another path of support enlisted for the Rosenbergs.  In November 1952, the Rosenbergs’ attorney, Emanuel Bloch, issued a direct appeal to a number of scientists, including Pauling, requesting their help. In his letter, Bloch asked specifically that the collection of scientists support his claim – as Harold Urey had done – that the stolen information leaked by the Rosenbergs was not crucial to the Soviets’ development of atomic weapons. Bloch explained that it did not matter if scientists believed the Rosenbergs to be guilty or not; what mattered was whether or not the scientific information they had put into Soviet hands was secret and if it was crucial to advancing Moscow’s development of an atomic weapon.

Pauling chose to go a different way in his pro-Rosenberg activism. Rather than focusing on atomic science in his statements, Pauling instead emphasized the Rosenbergs’ and Sobell’s right to due process.

Most notably, in January 1953, Pauling released a statement describing a letter that he had written to President Harry Truman.  Pauling’s letter focused on the President’s right to exercise executive clemency in commuting the Rosenbergs’ death sentences. Pauling believed the death sentence to be unjustifiably severe and suggested that Truman would later regret having not acted if the sentence was ultimately exacted.

Pauling also felt, as did many others, that the sentences relied too heavily on the testimony of David and Ruth Greenglass, who themselves faced comparatively light punishments (or none at all) though they had confessed to committing acts of espionage. Ethel and Julius Rosenberg, on the other hand, maintained their innocence and had received the harshest penalty possible.

After the executions of Ethel and Julius Rosenberg were carried out, Pauling remained a high profile advocate of legal reconsideration of Morton Sobell’s sentence, and he continued to support the work of the National Rosenberg-Sobell Committee with this goal in mind.  Many years later, in the 1970s, Pauling once again lent his name to the Rosenbergs’ cause, speaking out in favor of the National Committee to Reopen the Rosenberg Case.

Julius and Ethel Rosenberg on Trial

rosenbergs-sacco

[Part 2 of 3]

Julius and Ethel Rosenberg’s conspiracy trial, presided over by Judge Irving Kaufman, began on March 6, 1951.  Representing the United States was attorney Irving Saypol, well-known for his recent successful prosecution of a government official accused of being a Soviet spy and convicted of perjuring himself before the House Un-American Activities Committee.  After the Rosenbergs were ultimately convicted, Saypol was heralded by Time magazine as “the nation’s Number One legal hunter of top Communists.”

Julius and Ethel Rosenberg’s attorney, Emanuel (Manny) Bloch, was known for defending clients harboring left-wing or communist sympathies.  However, the Rosenbergs were not the only defendants being placed on trial – Morton Sobell, who was represented by Harold Phillips, was also among the accused.

Sobell had been recruited by Julius Rosenberg in the summer of 1944 and was accused of stealing information while working as an engineer at General Electric.  Sobell was advised by his attorney to say as little as possible throughout the trial in order to avoid implicating himself in the Rosenbergs’ activities, and indeed he never took the stand. Later outrage against the treatment of the Rosenbergs and their subsequent sentencing also included protestation of the judicial treatment of Sobell as well.


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Although the trial was an item of intense media interest throughout its duration, the closing statements and summations of the case were especially interesting as they served as one final opportunity for the attorneys involved to provide their perspectives to the jury. Emanuel Bloch, the Rosenberg’s lawyer, focused on the Greenglasses as villains who had framed Ethel Rosenberg and broken family bonds by testifying against her. Bloch alleged that the Greenglasses had fooled the FBI and allowed Ruth Greenglass to get off scot free, while Ethel suffered for a crime that she did not commit.

In his summary argument, Bloch did not draw attention to the fact that the case against Ethel was far weaker than that made against Julius, as doing so would strengthen the validity of the conspiracy charge issued against the couple. Instead, Bloch’s primary tactic was to appeal to the emotions of the jurors.

The prosecution, on the other hand, argued that it was not the government’s fault that their key witnesses, the Greenglasses, did not have an unimpeachable reputation.  In his statement, Irving Saypol, the government’s lead attorney, emphasized that the jury also had ample and damning material evidence on which to rely.  He likewise reminded the jury that, although communism was not on trial, it was communism and a devotion to the Soviet Union which brought the Rosenbergs and Morton Sobell to commit the crime of which they were accused.

Heading into their deliberations, all twelve jurors were leaning towards convicting Julius, with one juror arguing against convicting Ethel. This remained a sticking point throughout discussions that night and into the next morning, but at 11:00 A.M. the group reached complete unanimity.  On March 29, 1951, the jury delivered a guilty verdict against Ethel and Julius Rosenberg.


The sentencing that ensued also provided a unique look at how the trial was received in America.  At the sentencing hearing held the next week, on April 5, both Bloch and Phillips did what they could to try and lessen the severity of the punishments being considered.  Bloch in particular argued that the Rosenbergs did not wish to change the fate of the United States with their actions during World War II, nor did they even have the power to do so.  Rather, they were aiding an ally of the United States at the time of the alleged crime. Bloch further argued that, had they been tried at the time of their alleged crimes – circa 1944 – the levels of tension and fear surrounding the US’s relationship with the Soviet Union would have been far lower, and the courts would have been much more likely to show leniency.

Bloch also read a statement from the Yale Law Journal which explained that the information given to the Soviets through the atom spies was not as crucial to the development of Soviet nuclear weapons as was commonly believed.  The defense attorney concluded that it would be unfair to hand down death sentences to the Rosenbergs, as other notorious traitors including Iva Toguri D’Aquino – more commonly known as “Tokyo Rose” – and Mildred Gillars, aka “Axis Sally,” had received lesser sentences for their treasonous activities during the war. Many of these issues broached by Bloch at the sentencing hearing continue to be points of contention for scholars and commentators when they consider the Rosenberg trial today.


kaufman

A statement issued by Judge Irving Kaufman prior to sentencing made it pretty clear that the court was not in a forgiving mood. In his remarks, Kaufman assigned partial blame for the onset of the Korean War to the Rosenbergs, as he believed that the information they leaked had led the Soviets to develop an atomic bomb sooner than expected, thus enabling Moscow to encourage Communist aggression in Korea.  In the judge’s estimation, this rendered the Rosenbergs’ crime “worse than murder.”

Kaufman also emphasized the role that Ethel had played in the ordeal by encouraging and assisting her husband, thus making her a “full-fledged partner” in the espionage, and for this reason he believed that she should not be shown any mercy.

Without question, Judge Kaufman’s statement was imbued with the sentiments that attorney Bloch had feared would cloud the decisions made at the trial – namely, the crisis mentality that so often defined the Cold War era. As Kaufman put it

The issue of punishment in this case is presented in a unique framework of history.  It is so difficult to make people realize that this country is engaged in a life or death struggle with a completely different system.  This struggle is not only manifested externally between these two forces but this case indicates quite clearly that it also involved the employment by the enemy of secret as well as overt outspoken forces among our own people.

After reading his statement, Kaufman sentenced the Rosenbergs to death, while Morton Sobell was sentenced to 30 years in jail.  The death sentence was to be carried out during the week of May 21, 1951, less than two months after the hearing had taken place. In this, the judge emphasized his desire to expedite the execution process, a continuing theme throughout the Rosenbergs’ later appeals.

Interestingly, the sentences issued by Judge Kaufman were not in accordance with Justice Department guidelines and went beyond what the government thought was advisable given the situation. Just as in the deliberations of the jury, the main sticking point was Ethel’s fate and the question of whether or not she should receive the death penalty alongside her husband.  And although Kaufman recommended that Morton Sobell be forced to complete his full thirty-year sentence without parole, he was in fact released in 1969 after seventeen years and nine months in prison.

On April 6, the day after the Rosenbergs hearing, David Greenglass was sentenced to fifteen years in prison, a judgement that, according to Kaufman, was “neither a light sentence nor a heavy sentence, but just a sentence.” Though this was also the sentence that prosecution attorney Saypol had suggested, it ran counter to assumptions made by Greenglass and his lawyer, O. John Rogge, who understood there to be an informal agreement with the government, wherein Greenglass would get off lightly – no more than five years imprisonment – due to his cooperation.  However, the death sentences handed down to Greenglass’ sister and brother-in-law rendered his own slap on the wrist an unlikely presumption.  Greenglass would eventually be released in 1960 after spending nine and a half years in prison.


rosenbergs-die

Despite Kaufman’s directive that the Rosenbergs be put to death promptly, the couple managed to appeal their verdicts over the next two years.  However, their final appeal was thrown out on June 19, 1953, and the Rosenbergs were executed that day after a stay of execution was voided.  Although their attorneys had asked that the executions be delayed until a later date due to the start of the Jewish Sabbath, their executions were actually moved up from the standard time of midnight in order to complete them before the Sabbath began. Their date of death happened also to coincide with their fourteenth wedding anniversary.

Today, Julius and Ethel Rosenberg remain the only Americans ever put to death in peacetime for espionage and the only two American civilians executed for espionage-related crimes committed during the Cold War.

The Rosenberg Trial: Setting the Stage

Ethel and Julius Rosenberg, December 1950.

Ethel and Julius Rosenberg, December 1950.

[Ed. Note: September 28, 2015 will mark the one-hundredth anniversary of Ethel Greenglass Rosenberg’s birth. Over the next three weeks, the Pauling Blog will explore the famous Rosenberg trial and discuss Linus Pauling’s involvement in the public debate that it engendered.]

The trial of Julius and Ethel Rosenberg was a source of very vocal public debate in the U.S. and around the world in the early 1950s.  Charged with conspiracy to commit espionage and accused of stealing atomic bomb secrets from the Manhattan Project to give to the Soviet Union, the Rosenbergs’ trial highlighted widespread American fears that the Soviets were quickly catching with the United States in terms of technological prowess, and that these gains might be attributed, at least in part, to the assistance of unloyal Americans.

The trial also bore many of the hallmarks of a sensational media event. It included defendants who maintained their innocence no matter how hard they were pressed, the public airing of a family feud, and potential court appearances from celebrated atomic scientists and a “Red Spy Queen.”

The Rosenberg trial might now be viewed as both a piece of a larger quest to uncover Soviet spies in the wake of World War II and an outgrowth of the fear of communism that so characterized the Cold War.  What is certain is that event sparked outrage nationally and internationally, inciting involvement and protest from a wide range of actors, including Linus Pauling.


greenglass

David Greenglass.

The Rosenberg trial was actually just one high-profile event among several others that came about as the U.S. security apparatus sought to identify “atom spies” in its midst.  One such individual, Klaus Fuchs, a German-born British physicist, was convicted on March 1, 1950 after willingly granting interviews detailing his involvement.  His testimony prompted a larger investigation into potential spies at the Manhattan Project, as his statements suggested that someone else in the project had been supplying information to the Soviets before Fuchs did around 1942.

Fuchs’ testimony led to the discovery of Harry Gold, a key witness in the trials against David Greenglass, and Julius and Ethel Rosenberg.  Gold was identified as the courier for information supplied by Greenglass at Los Alamos, which he then passed on to Julius Rosenberg.  Gold served fifteen years in prison for espionage, while Fuchs was charged with four counts of supplying secrets to an allied country during war.  (Importantly, this distinction of the Soviet Union as an ally was made in England, where he was tried.)  Fuchs was ultimately sentenced to fourteen years imprisonment, of which he ended up serving nine years and four months.

Greenglass, a machinist working on the Manhattan Project in Los Alamos and the brother of Ethel Rosenberg, was arrested on June 15, 1950.  His arrest prompted Julius’ initial interview and the surveillance that followed.  Julius was arrested on July 17, 1950 after being interviewed on June 16.  Ethel was arrested one month later, based largely on new testimony given by her brother on August 11.  In this August statement, Greenglass specifically pointed out that his sister, Ethel, had typed the notes that were delivered to the Soviets, and not his wife Ruth, who had been identified in Greenglass’ original interview.

Greenglass and his testimony served as the foundation for the prosecution’s case.  It was Greenglass’ claim that Ethel had typed the notes that he made from knowledge gleaned at Los Alamos.  These notes were then given to Anatoly A. Yakovlev, the Soviet vice consul in New York City, through the courier Harry Gold.  Many years later however, Greenglass confided to author Sam Roberts – who was researching his book The Brother – that indeed it was most likely Ruth who had done the typing and not Ethel. In 1950 Greenglass had implicated Ethel to spare the life of the mother of his children, choosing to sacrifice his sister in the process.

Greenglass’ decision to change his testimony and accuse his sister Ethel rather than his wife Ruth came as a welcome turn of events for government prosecutors, who believed that they could use Ethel as a lever against Julius and force him to give up more names by charging her equally with him.  However, this tactic did not work as planned, as Ethel committed to stand by her husband and refused to incriminate herself or anyone else.  During their sessions in court, both of the Rosenbergs upheld their Fifth Amendment rights and refused to divulge other names or admit to Communist Party ties in the past.


Greenglass's sketch of an implosion-type nuclear weapon, ca. September 1945.

Greenglass’s sketch of an implosion-type nuclear weapon, ca. September 1945.

The specific information that was alleged to have been relayed to the Soviets, per Greenglass’ testimony, can be divided into four categories:

  1. General information about the layout of the labs at Los Alamos and potential recruits working on the Manhattan Project.
  2. Description and a sketch of the lens molds that were used in experiments of the implosion-type bomb.
  3. Description of what Greenglass referred to as a naval-type bomb, which was the type dropped on Nagasaki.
  4. Description and a sketch of an experiment to determine a reduction in the amount of plutonium or uranium needed to construct an atomic bomb.

The evaluations required in arguing and adjudicating the Rosenberg trial were complicated by a wide variety of factors; even discussing certain allegations in an open court proved problematic, as much of the information under review was classified.

Most importantly, because the Rosenbergs had been charged with conspiracy, there did not need to be any concrete evidence against them to arrive at a verdict of guilty. And indeed, over the course of the trial, no evidence was ever produced that showed that the couple had successfully passed information on to the Soviets.

While treason is one of the hardest crimes to prosecute, conspiracy is among the easiest.  Hearsay testimony can be admissible in a conspiracy case, and once a conspiracy has been proven to exist, all members involved can be held accountable for the actions of the others regardless of their knowledge of others’ acts. In addition, the success of a conspiracy does not have to be proven, only that those involved conspired towards an agreed upon goal.

The lack of concrete evidence presented in the trial combined with the media frenzy surrounding the proceedings to incite strong feelings among the public. As the trial moved forward and sentences were issues, many would come to believe that the punishments handed down were excessive, regardless of innocence or guilt, and that the process used to arrive at a verdict was deeply flawed.

“A Disgraceful Act…”

nation-cover

[Part 3 of 3]

As Robert Oppenheimer’s loyalty hearing before the Atomic Energy Commission moved forward, the discussion surrounding Oppenheimer’s plight escalated, both within the scientific community and beyond. Linus Pauling joined with many other scientists in coming to Oppenheimer’s defense and actively spoke out against the actions that the government was taking.

Pauling’s disgust with Oppenheimer’s treatment, combined with the on-going nuclear tests being conducted at Bikini Atoll, prompted him to pen an article that was published on May 1, 1954 in The Nation.  In “A Disgraceful Act…,” Pauling argued against what he described as “atomic barbarism” and connected this issue with the need to take a stand for the freedom of the mind and the right for scientists to pursue their own work.

Pauling strongly believed that scientists bear a social responsibility that extends beyond their scientific work itself.  In his work and actions, Oppenheimer certainly toed the line between being a scientist, citizen, and government employee.  This role was complicated at times and was a position with which Pauling was intimately familiar.

In describing Oppenheimer in “A Disgraceful Act…,” Pauling’s broader feelings are evident:

The conclusion that Dr. Oppenheimer is a loyal and patriotic American must be reached by any sensible person who considers the facts. It must have been reached by the A.E.C., and by President Eisenhower himself. We are accordingly forced to believe that the recent action is the result of political considerations – that Dr. Oppenheimer has been sacrificed by the government to protect itself against McCarythism.

…It has been said that Dr. Oppenheimer opposed the H-bomb program at the time, 1949, when the initiation of this program was under consideration. … Dr. Oppenheimer is to be commended if he advanced moral and ethical arguments against the manufacture of that greatest of all weapons of mass destruction, the H-bomb. … Instead of raising trivial questions about Dr. Oppenheimer’s loyalty, which he has demonstrated time and time again since 1940 through his deeds, the government should be asking him to use his great intellectual ability, in collaboration with many other outstandingly able physical scientists, social scientists, and specialists on international relations and other aspects of the world problem, to find a practical alternative to the madness of atomic barbarism.


walled

Unfortunately for Oppenheimer, the panel reviewing his case did not view him as favorably as many of his colleagues and fellow scientists did.  Within the majority report, it was decided that Oppenheimer was loyal, but not completely; he had stumbled once, he could falter again.  The panel also observed that Oppenheimer had shown a “serious disregard” for security requirements and evidenced “susceptibility to influence,” which could hurt national security.

These claims were paired alongside the argument that he had displayed “disturbing” conduct toward the H-bomb program and had withheld his full support of the project.  He was also charged with a lack of candor during periods of the board’s hearing, particularly when discussing the extent of his opposition to the development of the hydrogen bomb.

The minority report, on the other hand, emphasized that the nation had taken

a chance on him because of his special talents and he continued to do a good job.  Now when the job is done, we are asked to investigate him for practically the same derogatory information…. No one on the board doubts his loyalty…and he is certainly less of a security risk now than he was in 1947, when he was cleared.  To deny him clearance now for what he was cleared for in 1947, when we must know he is less of a security risk now than he was then, seems to be hardly the procedure to be adopted in a free country.

Other statements within the report make comparisons to Oppenheimer’s handling with that evidenced in less democratic countries, like Soviet Russia and Nazi Germany. The document likewise reminds its readers that “All people are somewhat of a security risk.”


questions-answers

Oppenheimer appealed the AEC’s decision immediately after it was issued. In the appeal, Oppenheimer’s lawyer pointed out that the majority decision not to recommend reinstatement of Oppenheimer’s security clearance stood in “stark contrast” to the board’s findings that the scientist was loyal.  In the view of the appeal, the board’s decision “raise[d] doubts about the process of reasoning by which the conclusion was arrived at.”

Oppenheimer ultimately lost his appeal on a 4 to 1 vote – a tally heavily influenced by delegates’ sense of “defects in [Oppenheimer’s] character.” The lone dissenting vote in the appeal case was cast by the only scientist on the committee, Henry D. Smyth.

Nontheless, the larger community of scientists generally supported the continued push for Oppenheimer’s clearance.  In an editorial published in the Bulletin of the Atomic Scientists after the appeal verdict was rendered, ten of Oppenheimer’s colleagues, including Harold Urey and Leo Szilard, issued a response. “It seems to us a breach of faith on the part of the Government,” they wrote, “to call upon a man to assume such heavy responsibilities in full knowledge of his life history and then, after he has demonstrably done his best and given the most valuable services to the nation, to use the facts which were known all the time to cast aspersions on his integrity.”

The Executive Committee of the Federation of American Scientists furthered this sentiment in a statement of its own:

We hope that the Atomic Energy Commissioners will again review the record and, within the bounds set by law and Executive Order, do justice to Oppenheimer as an individual.  But beyond that we urge strongly that the entire machinery of security must itself come under review.

In the end, for many the case served as another example of the existence of an unwritten imperative that scientists stay in line if they were to associate with the government and maintain a public image.  But for others, the trial marked a breaking point. As Pauling concluded in a letter to a friend who had complimented his Nation article, “For a couple years I have greatly restrained myself with respect to political action.  I have decided that not only is it wrong to permit oneself to be stifled, but it isn’t worthwhile.”

The Oppenheimer Trial

Pauling's copy of the Oppenheimer hearing transcript.

Pauling’s copy of the Oppenheimer hearing transcript.

[Part 2 of 3]

J. Robert Oppenheimer achieved prominence, first in the scientific community and later with the public at large, for his work in Los Alamos, New Mexico as the director of the civilian branch of the Manhattan Project during the Second World War. In the spring of 1942, he was asked to lead the project to develop an atomic bomb for use against the Germans, who were feared to be developing one as well. After the program succeeded, he was praised and showered with respect for his scientific work and managerial skill during the war.

In the years immediately following the war, Oppenheimer remained an important voice on nuclear policy, serving as a member of the Board of Consultants to the Atomic Energy Commission. Oppenheimer’s stature was also strong within the world of academia, and in 1947 he became director of the Institute for Advanced Study at Princeton University, home to Albert Einstein among many other luminaries.

However, in December 1953, less than a decade after the war’s end, Oppenheimer’s security clearance was revoked. Alleged to be maintaining communist ties and admonished for his opposition to the development of the hydrogen bomb, Oppenheimer was effectively exiled from the atomic community. As a result, a blank wall was erected between Oppenheimer and the secret data to which he once had access, and his sterling public reputation was put at severe risk.


The government’s about-face on Oppenheimer was a direct result of a redefinition by President Dwight Eisenhower of what it meant to be a loyal American. President Harry Truman had issued the first loyalty order in 1947, and under his definition, security risks were largely outlined as being political. With Eisenhower’s redefinition six years later, the risk was viewed as more general and based on character, stability, and reliability.

The language of Eisenhower’s new loyalty order, issued in April 1953, empowered the government to levy charges against Oppenheimer, based almost entirely on past suspicions of Oppenheimer’s loyalties. In 1947 Oppenheimer had admitted an association with the Communist Party in the 1930s, but within the constructs of Truman’s loyalty definition, Oppenheimer was allowed to continue his work.

In 1953, emboldened by the change in context brought about by Eisenhower, charges were brought against Oppenheimer by the Atomic Energy Commission (AEC), led by Chairman Lewis Strauss. This despite the fact that no breaches of security had been traced to the scientist.

In late December 1953, Oppenheimer was told that his security clearance had been revoked and secret documents that he held in Princeton were withdrawn. Given the chance to resign his AEC affiliation or face a hearing, Oppenheimer refused to step down, believing that doing so would serve as an admission of guilt.


new-republic

The AEC hearing prompted important questions about the relationship between science and politics during the Cold War.  Of the twenty-four charges brought against Oppenheimer, only one was new.  Oppenheimer’s past ties with communism were known to many, having been voiced by the scientist to the House Un-American Affairs Committee in 1947. What was new, however, was the allegation that Oppenheimer squarely opposed the H-bomb. This allegation effectively served as the entry point for Eisenhower’s new definition of risk, as Oppenheimer’s essentially moral objections to the weapon were now under trial.

Many other questions also clouded the hearing, among them the problem of using old information for new allegations.  The charges that were brought against Oppenheimer likewise commonly included vague claims, many of which began “it was reported…” and involved hazy dates or unidentified witnesses.

The charges were further countered by the prevailing belief within the scientific community that, without Oppenheimer, the first atomic bombs would not have been built as quickly as they were and that, even though he was against the development of the H-bomb at first, he never purposefully slowed down its development.

It would seem as well that Oppenheimer’s perspective was hardly unique. In fact, even Edward Teller, commonly referred to as “The Father of the Hydrogen Bomb,” explained in the Bulletin of the Atomic Scientists that the difficulties that were encountered with recruiting scientists to work on the weapon largely stemmed from their general dislike for the H-bomb.


Los Angeles Times, April 14, 1954.

Los Angeles Times, April 14, 1954.

The Oppenheimer hearing began on April 12, 1954 and lasted for four weeks. Already a high profile affair, its atmospherics became more pitched through the self-insertion of Senator Joseph McCarthy himself. McCarthy, as pointed out in a contemporary piece written by syndicated columnist Drew Pearson,

decided to jump into the Oppenheimer story only after the AEC investigation was well under way.  As a result, Strauss was scared to death last week over where his probe he started is heading.

Indeed, McCarthy’s involvement and the trial’s placement in the public spotlight changed its nature dramatically. No longer was the hearing simply about Oppenheimer’s loyalty. Now the entire role of scientists in politics and the standards to which they were to be held was being examined. As Pearson’s column suggested, Commissioner Strauss came to regret having stirred up this particular hornet’s nest, worrying that his actions might alienate the scientists who were central to his success as AEC chairman.

Furthermore, Strauss’s hearing likely played into McCarthy’s hands by creating an opportunity for him to get involved in the debate.  McCarthy had wanted to go after Oppenheimer before, but was advised not to primarily because his record had already been cleared in 1947.  However, with the trial opened by a different party, McCarthy could now talk more freely about suspected spies in the atomic bomb program. If he was challenged, he only needed to mention Oppenheimer’s suspension as evidence for his point of view.


After nearly one month spent collecting testimony – including some twenty-seven hours given by Oppenheimer – the hearing finally concluded and, on May 27, the committee issued its decision: Oppenheimer’s security clearance was permanently revoked. The facts damning Oppenheimer’s position had not changed since they were first recorded six years earlier, but the conclusions drawn from these facts were new, abetted by Eisenhower’s revised security standard. In our next post, we will examine the broader reaction to the committee’s decision, including Linus Pauling’s very public response to the trial of his former friend.

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