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Trial of the Century

September 22, 2008 –Julius and Ethel Rosenberg, brought to trial in 1951 and executed for conspiracy to commit espionage, often are considered poster children for Communist traitors who betrayed American secrets to the Soviet Union. But the case heavily depended on secret and possibly false grand jury testimony from Ethel’s brother, David Greenglass, and sister-in-law, Ruth Greenglass. The Rosenbergs never had access to that testimony and, until earlier this month, neither did the American public. David Vladeck, co-director of the Institute for Public Representation at the Law Center, helped change that by winning a federal court case to release nearly 1,000 pages of the testimony. The records provide an in-depth look into the Rosenberg prosecutions and new fodder for debate. Vladeck, lead attorney for a coalition of the National Security Archive and historians, spoke with the Blue & Gray about Cold War security lapses and why Ethel should not have received the death penalty.

Q. How did you get involved in this case?
A. I developed a very odd and unique specialty in working with historians to advocate for the release of historically valuable grand jury records. My work is an outgrowth of work that I had done when I was at Public Citizen Litigation Group before coming to Georgetown law school. We sort of invented this field of law. There have only been four cases in which federal grand jury records have ever been released for historical reasons. The Rosenberg case is the fourth.

Q. Why is it important to have access to the Rosenberg trial grand jury testimony?
A. It's hard to overstate the importance of the Rosenberg case. In many ways, this was the defining event in the Cold War. The Rosenberg prosecution made clear to Americans that there was extensive Soviet espionage going on in the United States, that some of the most vital secrets of the United States had been stolen by the Soviet Union and that the theft of these documents had enormous repercussions. The grand jury records really drive home just how pervasive and far-reaching the Soviet penetration of the American defense establishment was.

Q. During the trial, the government focused more on theft of atomic secrets from Los Alamos. Why weren't the broader conspiracies brought into play?
A. One way to look at this is that the trial was bearing witness to the most colossal espionage failure in American history. These were a bunch of amateurs; they weren't part of a professional spy ring. So, was the justice department just trying to protect the American people from learning the unfortunate fact that our defense establishment was so easily penetrated? Or was it they were covering up for their own inability to catch these people and prevent the looting of American secrets?

Q. What new information are you gleaning from the testimony?
A. One of the interesting debates we had was over a passage of Ruth Greenglass' testimony in 1950. She's reciting what took place, she claims, in conversations with Julius Rosenberg in 1944 at the height of the war before any atomic bomb had been detonated. She claims that Julius described the bomb, the radiation that would flow from it, just how terrible a weapon it is. One historian said, ‘Aha! This is proof that her testimony was cooked. There's no way in the world in early 1944 that Julius Rosenberg would have known any of this stuff.'

One of the other historians wasn't so sure. By then the Soviet penetration of the bomb-making facility in Los Alamos was so substantial that the Soviets may have had information that they passed along to Julius. The back-and-forth is something that will be promoted by the release of these records and it'll be very interesting to see how historians ultimately work this out.

Q. Do you think the Rosenbergs are guilty?
A. I've tried to remain neutral. … But on the basis of the grand jury testimony, which was unavailable to the Rosenbergs at trial, and from the trial testimony, I think there is a pretty decent case that Julius Rosenberg was in fact involved in helping steal and convey atomic secrets to the Soviet Union.

Q. What about Ethel?
A. I think it's quite clear that the government could not have sustained their case if the grand jury records were available to her lawyers, and that's very troubling. The key testimony against her was not accurate. Even the conservative historians and those always skeptical of the Rosenbergs' position now take that view. The government, either knowingly or unwillingly, had put on unreliable, if not perjured, testimony to secure her conviction.

I hasten to add that it's a different question than whether she participated in the conspiracy. It seems to me that the one argument on Ethel that the government could have pushed harder but didn't is that she participated in this conspiracy by enlisting her brother, David Greenglass, who worked out of Los Alamos and is the one who stole these secrets in the first place. There is an argument that Ethel helped convince David to spy for the Soviets. Was she guilty? Not as charged by the government. Was she involved? To some extent.

Q. David Greenglass recently recanted his testimony and you have called Ruth Greenglass' honesty into question. Why would they testify against the Rosenbergs?
A. Remember, Ruth was laboring under the Damoclean sword of being prosecuted herself. I think Ruth figured it was either her or Ethel. This isn't a defense of the Greenglasses, but I think they took the view that Ethel and Julius held the key to their jail cells and all they needed to do was confess. If they confessed, the government would have plainly spared their lives. Ethel probably would have spent just a short time in jail.

Q .Why are court filings necessary to get this kind of grand jury testimony released?
A. The problem is there is a federal statute that in essence says that grand jury records will remain a secret in perpetuity, period. There are very, very limited purposes for which the secrecy of grand jury records can be compromised. Only recently have courts been willing to entertain claims that grand jury records should be disclosed for reasons of historical purposes. The real problem is that we're stuck with this presumption of secrecy that's very hard to overcome. I would love to see Congress reconsider this issue and spare us the very time-consuming and frankly almost insuperable odds of getting access to grand jury records.

Q. Do you have plans to take up more cases of this nature?
A. We're not done with this case. The Rosenberg case was preceded by another Cold War prosecution of a spy ring called the Brothman-Moskowitz ring. This trial immediately preceded the Rosenbergs trial and involved all of the same people. The court has ordered that information disclosed and the justice department is deciding whether it will appeal. We'll know in the next 60 days or so.

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