When The Last Law Was Down

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If this was a shameful admission of the state’s willingness to electrocute an individual whose guilt it could not ascertain, the sentence became even worse when it was revealed that Judge Irving Kaufman had had numerous improper communications with the government over the punishment. Kaufman would insist that he had wrestled with his conscience and prayed for guidance. Roy Cohn, then the assistant U.S. attorney on the case, sneered that “the nearest Irving got to a synagogue was the phone booth outside the courthouse. It was not God that concerned him. He asked me how a double death sentence would play in The New York Times .”

None of this makes a pretty picture. Yet the Rosenbergs got their trial, and today few who have studied their case doubt their guilt. Moreover, they were convicted in good part by classified material on the making of atomic weapons, presented in open court. By sifting carefully through each piece of scientific evidence stolen by the Rosenberg spy ring, the prosecution was able to make its case without compromising nuclear secrets. It was even able to keep secret the so-called Venona cables, the intercepted Soviet messages that had led it to the atom spies in the first place.

Flawed trials are one of the inherent risks of a democracy. Secret arrests and indefinite military detentions are not, and the moment we change from a government of laws to one of men, we place our existence as a nation in jeopardy. No doubt many readers do not believe that George W. Bush or John Ashcroft will ever abuse the powers they have arrogated. I would only ask if they would have placed the same trust in a Bill Clinton, a Janet Reno, or even an Al Gore.

Robert Caro, in The Power Broker , his magisterial life of Robert Moses, turned to Robert Bolt’s historical drama A Man for All Seasons for an analogy to giving Moses almost unchecked power. In the relevant scene, Thomas More confronts a young protégé, William Roper, who declares that he would “cut down every law in England” in order “to get after the Devil.” More asks him, “Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat?”