The case of the convicted atom spies, Julius and Ethel Rosenberg, is being exploited by typical Communist trickery to destroy faith in our American institutions…. Racial and religious groups as such have no special interest in the Rosenberg case and cannot properly become involved in appeals on their behalf. Those who join in organized campaigns for clemency in this case have knowingly or unwittingly given assistance to Communist propaganda!
This campaign has in fact effectively scared a lot of people, but many others of weak faith are still putting their signatures to clemency appeals and turning up in the streets bearing inflammatory placards. The streets of New York and most other great cities are clogging up with them, and a special Clemency Train has this very day brought hundreds of these people to the very precincts of the Supreme Court—most of them are ganged up around the steps of the Court, but some have actually slipped by into the gallery up on the main floor—where now Chief Justice Fred Vinson is rapping the special term to order.
The government’s task is a formidable one, in spite of the known sympathies of most of the Justices—the point is, they don’t want to set any precedents for slapping each other down. Uncle Sam’s proxy is Acting Solicitor Robert L. Stern, dressed impeccably in striped pants and black cutaway coat. The Rosenbergs are represented (if that is the word) by four noisy belligerent outsiders—John Finerty, Dan Marshall, Fyke Farmer, and Emanuel Bloch—whose clothes look like they’re been slept in and who don’t seem even to know each other. Bob Stern argues that the Rosenbergs have already been allowed too many appeals, the new point is frivolous, further delays would make a mockery of our judicial system, and the stay should be vacated. “The defendants have been convicted of a most terrible crime,” he reminds the Court (two of whom are already starting to doze off), “nothing less than the stealing of the most important weapon in history, and giving it to the Soviet Union. Haven’t the Rosenbergs had their full day in court and more? The public’s rights and safety are no less precious than the Rosenbergs’. We do not think those rights should be violated any longer!”
The Rosenbergs’ lawyers scramble about these points, attempting to blur the sharp edges, cast doubt on the applicability of the various laws, and question the need for such haste and impatience in deciding the issue—at one point, tall loose-jointed Dan Marshall even grabs the counsel stand with both hands and does a fair imitation of a country preacher, though he lacks the radiance of a true Man of God, rocking back and forth and crying out: “I doubt whether even a justice of the peace would call the meanest pimp before the bar on such short notice!’
“Now, now,” scolds the Chief Justice, “don’t let your temperature rise!”
But it is cranky old jut-jawed John Finerty—whose connections with the Phantom go back to Tom Mooney, and to Sacco and Vanzetti—who really wakes up the nodding Bench and reveals his team’s true colors, or color: he denounces the special term as an insult to the Court and the integrity of Justice Douglas, scathingly accuses Brownell and Vinson of a kind of legalistic conspiracy, attacks the Justice Department for perpetrating along with Judge Kaufman a knowing fraud based on rigged testimony and phony evidence, and caps the whole outrage with a blustering assault on Irving Saypol, the original U.S. prosecutor in the case and one of the most admired men in America: “There never was a more crooked district attorney in New York!” he cries. Justice Tom Clark, himself a former Attorney General and a personal friend of Kaufman, Saypol, and Brownell, is offended by this frontal attack and leans forward to put a stop to it. Even Hugo Black grimaces at Finerty’s tirade, but this may only be a gas cramp. “If you lift the stay,” snaps Finerty, his Irish cheeks aflush, “then God save the United States and this honorable Court!” There are gasps in the courtroom at this old reprobate’s vain use of the Lord’s name, and many are sure they heard him say “dis-honorable Court.”
Argument has been edging toward violence, so Fred Vinson cuts it off and the Nine Old Men retire to their private conference room, where a very hostile atmosphere prevails. Black and Douglas are fit to be tied, and Vinson is not confident he has any of the other three New Dealers with him on this one either. It helps, of course, that they’re all browned off at Douglas for playing the devil with their holiday like this, this special term being a disconcerting precedent. On the other hand, the new impeachment threat against Douglas may provoke a show of solidarity—they don’t want any precedents set in that direction either. Listening to them wrangle like schoolgirls, Vinson figures he’s about had it with this goddamn job. If he doesn’t quit soon, it’ll kill him. He tells them all to go home and sleep on it, they’ll announce their decision whether to vacate the stay or not tomorrow at high noon. That’s right, high noon, why the hell not. He makes Burton go out front to pass the word, since he’s been drowsing through most of the arguments and so is less riled than most.
The public—jammed not only into the courtroom, but into all the corridors of the building as well, and in the doorways, stairwells, windows, down the steps, out into the street and onto the lawns of the Methodist Building and the Library of Congress—takes the news with mixed feelings. Apparently the Rosenberg lawyers have not been persuasive enough to convince the Court, or they’d have said so; the delay is most likely just to give the old fellows time to work up a few eloquent touches to their decisions, something to be remembered by in Bartlett’s Quotations. Also, let’s face it, the delay heightens the drama, and as long as everything turns out well in the end, that’s probably a good thing, makes everybody feel more alive. Okay, but the troubling thing is, it should have been easier than this. No matter what happens tomorrow, Uncle Sam has plainly lost this night to the Phantom! Though the day is warm and the sun though lowering still high in the sky, a faint shudder passes through the crowd as they drift away from the Court, not together toward Times Square as they’d hoped and planned, but separately toward their own private executions, slow, but inexorable; uncelebrated. Alone in the dark, tonight anyway. With the Phantom loose in the world. Scary…. By the time Uncle Sam staggers, bruised and bedraggled, into the courtroom, it is empty. The drapes have been pulled and dust floats sullenly in the beams of afternoon sunlight.
The weary Superhero slumps heavily into a pew at the back of the room, lifts his feet, stretches his legs out in front of him. “Ah well,” he groans, his voice echoing like a hollow wind through the empty marble halls, “no gains without pains. Like the man says.” There are holes in the soles of his boots, and a soft caved-in look through his cheeks. “A wise man,” he murmurs, tipping his plug hat forward over his nose, leaning his head back, “don’t try to hurry history…” His eyes close. He yawns, chuckles wryly to himself under the plug hat. “Everything human,” he sighs, “is pathetic…”
A husky broad-shouldered man in laced-up walking boots emerges from the back rooms, pulling a cloth windbreaker on over an old sweater. “Where ya goin’, Bill?” asks Uncle Sam coldly from under his hat.
“Out to walk the canal towpath. Want to come along?”
“Naw. Too bushed. I been working my ass off, you perverse sonuvabitch. The blisters on my heels are so big it hurts when I bend my elbows, I got tank treads up my spine both front and back, and I’m so dadblame hungry my belly thinks my throat’s been cut!”
“Well, come on then. Maybe we can make it up to the little store that sells that home-smoked country sausage before it closes…”
“That goddamn towpath of yours—I got half a mind to concrete it over and make a six-lane highway out of it, damn you! I’d go do it tonight, if I wasn’t so bodaciously whacked. Why’d you do this to me, Bill?”
“Well, the law…”
“To hell with that. You been voting with us in this case all along, I thought maybe you were coming around at last, why’d you go and blow it like this? Eh? Why’d you get us in this mess? Has Hugo been working on you again?”
“No…”
“That miserable tote-road shagamaw, he still can’t get over his days of whooping it up in
the Ku Klux Klan back when they was still hanging coons, he’s a incurable overcompensator. Don’t let him make a fool out of ya, Bill!”
“Hell, he’s got nothing to do with it,” says Douglas flatly.
“The eccentric sonuvabitch, he’s even trying to boycott the executions by sneaking off to the hospital,” grumbles Uncle Sam from under his hat. He feels through his coat pockets for his corncob pipe. “If he ain’t careful, he might not come out again!”
“I tell you, Sam, it’s a matter of law…”
“My ass. You’re not gonna get away with it, you know.” Douglas sighs and shrugs his shoulders, glances up at the old clock dangling like an antiquated fob watch over the bench. “Like Mr. Dooley says, ’No matther whether th’ Constitution follows th’ flag or not, th’ Supreme Coort follows th’ iliction returns.’ You may have sunk our show for tonight, but your buddies are gonna have you shovelin’ shit tomorrow, boy!”
“Maybe…”
“No maybe about it. If they were ever gonna stick by you on principle, they’d of done it today. No, it’s time to pay up and look pretty—they’re gonna stomp all over you, Billy.”
“If they do, they’re wrong. The cold truth is that the death sentence may not be—”
“Ain’t no such thing as cold truth, hoss…” He finds the pipe, peers squint-eyed into the bowl from under the brim of his plug hat.
“—may not be imposed for what the Rosenbergs did unless a jury so recommends.”
“Huh!” Uncle Sam snorts, and sucks on his empty pipe. “Who says?”
“It’s a law too elemental for citation of authority, Sam, that where two penal statutes may apply—one carrying death and the other imprisonment—the Court has no choice but to impose the less harsh sentence.”
“That ain’t my Court you’re talkin’ about—damn it, Billy, you’re as ornery as ever you was!”
“Well, I know deep in my heart I am right on the law.”
“Deep in your heart, hunh?” Uncle Sam lowers his feet, sits up slowly, pushes his hat back off his nose, squints up at Justice Douglas. “Well, the law and your bleedin’ heart be damned! Watch out, my friend, morality is a private and costly luxury. Like your pal Felix says, ‘Courts ought not to enter this yere political thicket!’”
“Brer Rabbit had an answer to that one, Sam,” replies Douglas with a wry grin.
Uncle Sam finds some tobacco and stuffs it in the bowl of his pipe. “Fergit Brer Rabbit and remember the Prophets, my boy: ‘There is no good in arguin’ with the inevitable. The only argument available with a east wind is to put on your overcoat.’” He scratches behind his ear and withdraws a wooden match. “I’m tellin’ you plain, mister,” he says, holding the match up like a pointer, “them two traitors is gonna—” He strikes the match down Douglas’s pantleg, but it fails to light. He stares at it, dumfounded. “What the hell—!” He strikes it on his own pants: “Are gonna—” This time the head falls off. “Tarnation. Musta got it wet in Wonsan Harbor…uh…hey, Billy, ya got a light?”
Douglas tosses a packet of safety matches with a Smokey Bear warning on them down to the American Superhero. “Speaking of traitors, that’s another thing that’s been bothering me: this conspiracy law. I mean, using it to give somebody a harsher penalty than you could give him if you convicted him of the crime itself, or using it to get around—”
“Harsher penalty! Hell, man, this is treason!”
“Yeah, I know, everybody from the Judge and Prosecutor to the FBI and that goofy knuckle-headed Incarnation of yours keeps repeating that—but the Constitution says: ‘No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.’ No act in this entire case involving the Rosenbergs has been corroborated by a second witness, Sam, and they have not confessed!”
“So what? Everybody knows that. That’s why we had to use the conspiracy law, we didn’t have two witnesses to any of this shit, it was in the nature of the case!”
“I understand that, but if you convict them on a lesser or broader law, then I don’t see how you can sentence them on a more serious or precise law. You’d do well to think it over, Sam.”
“In two words, chum,” says Uncle Sam, dragging on his pipe and blowing smoke, “im-possible!” He jabs the pipe at Douglas menacingly. “‘When the ignorant are taught to doubt,’ quoth the Prophet, ‘they do not know what they safely may believe!’ So let’s get this straight, wise guy—”
“Well, I’ve got no doubts,” snaps Douglas, turning away to leave the chamber. “I’m sure of the answer, my duty is clear. I’m not sucking ass on this one, Sam, and if you’d stick a pin in that inflated head of yours and stop showing off for five minutes, you’d—”
“What? What!!” roars Uncle Sam, rearing up in anger. “Listen, this is my circus, you old coot! And I’m gettin’ goddamn sick and tired of you pretendin’ to know better’n me what’s right for this country!”
“Yup, well, while I’m at it,” replies the Justice, rumbling calmly on, one big hand resting lightly on his canteen as though on a holstered six-shooter, “don’t you think it’s about time you got down off this Sons of Light and Darkness kick? I’ve about had it with all this—”
“You’ve about had it is right!” storms the enraged Superchief. “You’re in more trouble than you know, boy! This country’s after your scalp! You’re so smart at giving advice, lemme give you some: Quit! If you don’t, Congress is gonna heave you outa here so fast they won’t be able to see your ass for dust! You hear me? You’ll be lucky if they don’t lynch you in the bargain! You—what the hell are you laughing at!?”
“Hell, Sam, you got about as much respect for those fatuous Dixie gasbags as I’ve got—they’re not gonna get anywhere, and you know it. When you turn Hayden or Aiken or Saltonstall loose on me, I’ll start to worry, but for now I think I’ll just go for my walk. You coming along or—?”
“NO!” Uncle Sam blusters. His face is flushed, his white chinwhiskers are standing on end, his blue eyes blazing. “I—I promise you, mister, we’re gonna get you! One way or the other, you are going to be sorry!”
Justice Douglas stares for a moment at the irate Superhero. “Yes,” he sighs, shaking his head, “I suppose I will,” and wheels out of the room, nearly bowling over the janitor just coming in to clean up.
“Who you talkin’ to, boss?” asks the janitor, peering bug-eyed into the empty Supreme Court chamber. “You talkin’ to yo’self?”
“Yeah,” says Douglas without turning back. “It looks that way…”
5.
With Uncle Sam at Burning Tree
I was sitting on the floor of my inner office, surrounded by every scrap of information I could find on the Rosenberg case, feeling scruffy and tired, dejected, lost in a surfeit of detail and further from a final position on the issue than ever, when the bell on my clock rang twice for a quorum call. It was late, goddamn late, I thought Lyndon Johnson had long since given up. I desperately wanted to get rid of this atom-spy affair and go home—if I left the damned thing now, I’d just have to come back, and then where would it end? Why the devil had Uncle Sam got me into this? Just to convince me of the enormity of their crime? But I was already convinced. How many Americans had died and would die because of what they had done? Would the Reds have dared invade South Korea, rape Czechoslovakia, support the Vietminh and Malayan guerrillas, suppress the freedom-hungry East German workers, if the Rosenbergs had not given them the Bomb? We were headed, truly, into a new Era of Peace after World War II, our possession of the ultimate weapon and our traditional American gift for self-sacrifice would have ensured that—and we might even have helped our friend Chiang return to the Chinese mainland where he belonged, loosened things up a little inside Russia to boot—but the Rosenbergs upset all that. When the Russians tested their first A-bomb in 1949, I was one of the first to hit at Truman’s failure to act against Red spies in the United States. And then when they got Fuchs in England in
1950, I called for a full congressional investigation of atomic espionage to find out who may have worked with Fuchs in this country—I moved quickly, caught most Congressmen napping, got most of the headlines. And deserved them. No, Dick Nixon knew what was going on all right, and was quick to say so, that’s how I beat that fancypants movie star for Senator that year, and even though finally I didn’t have all that much to do with the Rosenberg case itself, I always felt that—indirectly anyway—it was my baby.
All the more so when you considered that it was my successful pursuit of Alger Hiss which had given courage and incentive to the entire nation, made Communism a real issue, restored the dignity and prestige of HUAC, changed the very course of America and the Free World, and ultimately had made these electrocutions possible. In Whittaker Chamber’s new best-seller, Witness, he wrote: “On a scale personal enough to be felt by all, but big enough to be symbolic, the two irreconcilable faiths of our time—Communism and Freedom—came to grips in the persons of two conscious and resolute men…. Both knew, almost from the beginning, that the Great Case could end only in the destruction of one or both of the contending figures, just as the history of our times…can end only in the destruction of one or both of the contending forces!” And hadn’t I been the catalyst that gave Whittaker and the Free World victory? To hell with your goddamned “McCarthy Era”! I’m the one!
I’ll never forget the day that Hiss, beaten, walked over to the old davenport in Room 1400 of the Commodore Hotel in New York to examine Chambers’s molars: “Would you mind opening your mouth wider? I said, would you open your mouth!” What pathos! If these two were indeed, as Whittaker had suggested, the momentary Incarnations of the contending forces of the universe, there was something profoundly ironic about the Force of Darkness and Evil poking petulantly but almost tearfully among the dental ruins in the soft but firm jowls of the Force of Goodness and Light. I think he hoped that Whittaker would bite him so that he could cry from pain rather than humiliation. I had already guessed the real bond between these two guys, and Alger’s desperate scrutiny of the intimate details of Whittaker’s mouth, full of so much sadness and decay, began to embarrass me. I finally had to ask him: “Excuse me, before we leave the teeth, Mr. Hiss, do you feel that you, uh, would have to have the dentist tell you just what he did to the teeth before you could tell anything about this man?” From that moment on, Hiss was finished; like that snake that eats its own tail, he just couldn’t keep his foot out of his mouth after that. It mas maybe the most fun I ever had in politics, outside of elections, and when it was over I felt like one chosen. Like Whittaker said: “I do not know any way to explain why God’s grace touches a man who seems unworthy of it. But neither do I know any other way to explain how a man like myself…could prevail so far against the powers of the world arrayed almost solidly against him, to destroy him and defeat his truth.” Which was even more true of me, who unlike Chambers must struggle for a lifetime. Not that I’m unworthy. No, that’s just it, the powers arrayed against the good man are formidable and indefatigable, there are few who can stay the course. Defeat and disappointment dog every footstep. If old Hiss hadn’t been a liar, for example—and an eager one besides—I might have been destroyed before I could ever get started. So thank God at least for that: it gave me the power to prevail, it was a milestone in human history, and marked me once and for all as the greatest of the Early Warning Sentinels.