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COLUMN LEFT/ ALAN M. DERSHOWITZ

Rosenbergs Were Guilty--and Framed : FBI, Justice Department and judiciary conspired to convict a couple accused of espionage.

July 19, 1995|ALAN M. DERSHOWITZ

The recent disclosure of intercepted Soviet intelligence messages that link Julius Rosenberg to atomic espionage should not allay the conscience of the American legal system. The execution of Rosenberg and his wife, Ethel, in 1953 remains a serious blemish on the Federal Bureau of Investigation, the Justice Department and--worst of all--the judiciary.

Just because Julius Rosenberg was guilty of spying for the Soviet Union does not mean that he was not also framed. It certainly does not mean that his wife was not framed. The likelihood is that Julius was both guilty and also framed by false evidence, and that Ethel was only marginally involved in her husband's activities and was framed by false evidence and by the perfidy of one of her lawyers.

I received confirmation of this sordid scenario several years ago from one of the Rosenberg's prosecutors. Shortly before he died, Roy Cohn told me that he was going to recount a story that would shock me. He told me that the FBI knew for certain that Julius Rosenberg was guilty because they had access to secret intercepts of Soviet intelligence messages, but that the prosecutors could not use this evidence because the FBI didn't want the Soviets to know that their code had been broken. Without this evidence, the prosecution had a weak case, because the various witnesses had given conflicting and changing accounts, especially as to whether Ethel had typed up notes given to Julius by Ethel's brother David Greenglass, who worked at Los Alamos.

At this point in the story, Cohn smiled broadly and told me--with obvious pride--that since the FBI knew Julius was guilty and that he would get away with it if they played by the rules, the FBI "enhanced" evidence, got witnesses to "improve" their stories and worked hand-in-hand with the judge.

I had always liked Judge Irving Kaufman, having argued before him--and won--several times. I didn't want to hear what Cohn said next. "Irving was in on everything. He knew about the secret intercepts and that we couldn't use them." Cohn told me how the prosecutors would have secret phone conversations with Kaufman at prearranged times, especially about whether Ethel should be sentenced to death.

The case against Ethel was particularly weak, both factually and legally. The secret intercepts clearly contradict the government's assertion that she was the "leader" of the two. The only evidence that she even typed the notes came from her brother, who initially mentioned nothing about her role as typist. Even on the eve of her execution, the FBI was not certain about the degree of her involvement, beyond mere knowledge. They relied on a psychological evaluation of the defendants by Morris Ernst, a lawyer who purported to be working for the Rosenberg family but who was secretly sending his findings to J. Edgar Hoover. I asked Cohn how he felt about his role more than 30 years later. "Great," he said. He had done the right thing, he assured me, since they were, in fact, guilty and would have gotten away with it otherwise.

I know enough not to credit anything that Roy Cohn said without external corroboration. But now there is external corroboration, both in the newly disclosed intelligence intercepts and in the FBI files that have recently been made public. I believe that Cohn's account is probably credible. If it is, it tells a shocking story of corruption in the highest places.

The recent disclosures should not end the public debate over the Rosenberg case. They should shift its focus from the guilt of the Rosenbergs (especially Julius) to the questionable behavior of the prosecutors, the FBI and Judge Kaufman.

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