The Rosenbergs were convicted and sentenced to death for
conspiring to violate the Espionage Act of 1917 by communicating to
a foreign government, in wartime, secret atomic and other military
information. The overt acts relating to atomic secrets occurred
before enactment of the Atomic Energy Act of 1946, but other
aspects of the conspiracy continued into 1950. The Court of Appeals
affirmed the convictions, and this Court denied certiorari and
rehearing. Thereafter, several unsuccessful collateral attacks on
the sentences were made in the lower courts, and reviews of the
decisions thereon were sought in this Court. After disposing, in
effect, of all such collateral attacks then pending in the courts
and denying a further stay, this Court adjourned the October Term,
1952. At a Special Term on June 15, 1953, the Court denied a motion
for leave to file an original petition for a writ of habeas corpus
and for a stay, and again adjourned. Thereafter, counsel for the
Rosenbergs applied to MR. JUSTICE DOUGLAS for a stay, but he denied
it, since they raised questions already considered by the Court.
Counsel who had not been retained by the Rosenbergs but who
represented a "next friend" applied to MR. JUSTICE DOUGLAS for a
stay and a writ of habeas corpus, contending that the Atomic Energy
Act of 1946 rendered the District Court powerless in this case to
impose the death penalty under the Espionage Act of 1917. On June
17, 1953, MR JUSTICE DOUGLAS denied a writ of habeas corpus, but
granted a stay, effective until the applicability of the Atomic
Energy Act could be determined in
Page 346 U. S. 274
the lower courts. The Attorney General petitioned this Court to
convene in Special Term and to vacate the stay.
Held: the stay granted by MR. JUSTICE DOUGLAS is
vacated. Pp.
346 U. S.
277-296.
1. MR. JUSTICE DOUGLAS had power to issue the stay. Pp.
346 U. S. 285,
346 U. S. 288,
346 U. S.
294.
2. This Court has power to decide, in this proceeding, the
question preserved by the stay granted by MR. JUSTICE DOUGLAS, and
to vacate that stay. Pp.
346 U. S.
286-287.
(a) That the full Court has made no practice of vacating stays
issued by single Justices does not prove the nonexistence of the
power; it only demonstrates that the circumstances must be unusual
before the Court, in its discretion, will exercise its power. P.
346 U. S.
286.
(b) The power exercised in this case derives from the Court's
role as the final forum to render the ultimate answer to the
question which was preserved by the stay. P.
346 U. S.
286.
(c) In the unusual circumstances of this case, this Court deemed
it proper and necessary to convene in Special Term to consider and
act upon the Attorney General's urgent application. Pp.
346 U. S.
286-287.
(d) This Court's responsibility to supervise the administration
of criminal justice by the federal judiciary includes the duty to
see not only that the laws are enforced by fair proceedings, but
also that the punishments prescribed by the laws are enforced with
a reasonable degree of promptness and certainty. P.
346 U. S.
287.
3. The stay granted by MR. JUSTICE DOUGLAS is vacated. Pp.
346 U. S.
288-289.
(a) A stay should issue only if there is a substantial question
to be preserved for further proceedings in the courts. P.
346 U. S.
288.
(b) The question whether the Atomic Energy Act of 1946 rendered
the District Court powerless in this case to impose the death
penalty under the Espionage Act of 1917 is not substantial, and
further proceedings to litigate it are unwarranted. Pp.
346 U. S.
285-286,
346 U. S. 289,
346 U. S.
289-290,
346 U. S.
294-296.
4. The Atomic Energy Act did not repeal or limit the penalty
provisions of the Espionage Act. Pp.
346 U. S. 287,
346 U. S. 289,
346 U. S. 290,
346 U. S.
294-296.
(a) At least where different proof is required for each offense,
a single act or transaction may violate more than one criminal
statute. P.
346 U. S.
294.
(b) The partial overlap of two statutes does not work a
pro
tanto repeal of the earlier act, unless the intention of the
legislature to repeal the earlier statute is clear and manifest.
Pp.
346 U. S.
294-295.
Page 346 U. S. 275
(c) Instead of repealing the penalty provisions of the Espionage
Act of 1917, the Atomic Energy Act, by § 10(b)(6), preserves them
in undiminished force. P.
346 U. S.
295.
(d) Since the crux of the charge alleged overt acts committed
before the Atomic Energy Act was enacted, that Act cannot cover the
offenses charged, and the alleged inconsistency of its penalty
provisions with those of the Espionage Act cannot be sustained. Pp.
346 U. S.
295-296.
5. Although the question now urged as being substantial was
raised and presented for the first time to MR. JUSTICE DOUGLAS by
counsel who have never been employed by the Rosenbergs, and who
heretofore have not participated in this case, the full Court has
considered it on its merits. The Court does not hold in this case
that a waiver of this claim precluded its consideration. Pp.
346 U. S.
282-283,
346 U. S.
288-289.
6. In the circumstances of this case, in which the Rosenbergs
were represented at their trial and in all subsequent proceedings
by able and zealous counsel of their own choice, intervention by a
stranger as "next friend," without authorization by the Rosenbergs
and through counsel who had never been retained by them, is to be
discountenanced. Pp.
346 U. S.
291-292.
Stay vacated.
For opinion of the Court, delivered by THE CHIEF JUSTICE,
see post, p.
346 U. S.
277.
For per curiam opinion,
see post, p.
346 U. S.
288.
For concurring opinion of MR. JUSTICE JACKS0N, joined by THE
CHIEF JUSTICE, MR. JUSTICE REED, MR. JUSTICE BURTON, MR. JUSTICE
CLARK and MR. JUSTICE MINTON,
see post, p.
346 U. S.
289.
For concurring opinion of MR. JUSTICE CLARK, joined by THE CHIEF
JUSTICE, MR. JUSTICE REED, MR. JUSTICE JACKSON, MR. JUSTICE BURTON
and MR. JUSTICE MINTON,
see post, p.
346 U. S.
293.
For dissenting opinion of MR. JUSTICE BLACK,
see post,
p.
346 U. S.
296.
For dissenting opinion of MR. JUSTICE FRANKFURTER,
see
post, p.
346 U. S.
301.
For dissenting opinion of MR. JUSTICE DOUGLAS,
see
post, p.
346 U. S. 310.
For appendix to opinion of MR. JUSTICE DOUGLAS containing his
opinion granting the stay,
see post, p.
346 U. S.
313.
The history of the proceedings in this unusual case is recited
in the opinion of the Court, post, pp.
346 U. S.
277-285.
Page 346 U. S. 276
The Court's Journal for June 18, 1953 (p. 257), contains the
following entries:
"The Court met in Special Term pursuant to a call by the Chief
Justice."
"
-----"
"Present: Mr. Chief Justice Vinson, Mr. Justice Black, Mr.
Justice Reed, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr.
Justice Jackson, Mr. Justice Burton, Mr. Justice Clark, and Mr.
Justice Minton."
"
-----"
"The Chief Justice said:"
" The Court is now convened in Special Term to consider an
application by the Attorney General (1) to review the stay of
execution of Julius Rosenberg and Ethel Rosenberg, granted by Mr.
Justice Douglas on June 17, 1953, or (2) for reconsideration and
reaffirmance of this Court's order of June 15, 1953, in No. 1,
Mis., Julius Rosenberg and Ethel Rosenberg, petitioners, v. Wilford
L. Denno, Warden of Sing Sing Prison, June 1953 Special Term,
denying a stay."
" The Special Term convenes with the approval of all the
Associate Justices except Mr. Justice Black, who objects."
THE CHIEF JUSTICE and all Associate Justices were present when
the decision was announced on June 19, 1953.
Page 346 U. S. 277
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
*
A Special Term of the Court was convened upon the Attorney
General's application to review a stay of execution in this case
issued by MR. JUSTICE DOUGLAS.
Our action was unusual. So were the circumstances which led to
it. The Court's action should be considered in the context of the
full history of the proceedings which have marked this case.
On August 17, 1950, the defendants were indicted for conspiring
to commit espionage in wartime, in violation of the Espionage Act
of 1917, 50 U.S.C. §§ 32(a), 34. After a lengthy jury trial, they
were found guilty, and, on April 5, 1951, they were sentenced to
death. Upon appeal, the Court of Appeals affirmed. [
Footnote 1] A petition for rehearing was
denied.
A petition for certiorari was filed here. It was denied on
October 13, 1952. [
Footnote 2]
A petition for rehearing was filed October 28, 1952. It was denied
on November 17, 1952. [
Footnote
3]
One week thereafter, a motion was filed in the District Court
under § 2255 of the Judicial Code (28 U.S.C.
Page 346 U. S. 278
§ 2255), to vacate the judgment and sentence. That motion
(hereafter called the first § 2255 motion) did not challenge the
power of the District Court to impose the death sentence. It was
denied. [
Footnote 4] The Court
of Appeals
Page 346 U. S. 279
affirmed. A petition for rehearing was denied. [
Footnote 5] Certiorari was again sought here,
and denied on May 25, 1953. The stay entered by the Court of
Appeals was vacated by this Court on the same date. [
Footnote 6] On the same day, a petition for a
stay, pending the consideration of a petition for rehearing, to be
filed by June 9, 1953, was denied by THE CHIEF JUSTICE. A petition
for rehearing was filed and was pending during the last week of the
1952 Term of the Court, the adjournment of the Term having been
announced for June 15, 1953.
In the meantime, execution of the sentence was set for the week
of June 15th by the District Judge, and two further motions under §
2255 to vacate judgment and sentence were denied in District Court,
one on June 1, 1953, and another on June 8, 1953. Those denials
were affirmed by the Court of Appeals on June 5 and June 11, 1953,
respectively.
In addition to those two motions under § 2255, a petition was
also presented to the Court of Appeals asking that a writ of
mandamus be issued, directing the sentencing judge to resentence
the defendants. On June 2, 1953, the Court of Appeals denied relief
by way of mandamus. Thus, as of June 12, 1953, three decisions had
been entered by the Court of Appeals in collateral attacks upon the
sentence, all three attacks having been instituted
Page 346 U. S. 280
by the defendants after our denial of certiorari on May 25,
1953, as to the first motion under § 2255.
On June 12, 1953, an application for a stay or execution was
filed with the Clerk of this Court and presented to MR. JUSTICE
JACKSON, the appropriate Circuit Justice. This stay was requested
to enable the Rosenbergs to seek review of the three most recent
decisions of the Court of Appeals "within the time ordered by the
applicable statute." MR. JUSTICE JACKSON referred this application
to the full Court, with a recommendation that oral argument be
heard on it. On June 15, 1953, the last session of the 1952 Term,
the Court declined to hear oral argument on this application, and
denied the stay. [
Footnote 7]
The
Page 346 U. S. 281
pending petition for rehearing as to the May 25, 1953, denial of
certiorari was also denied. [
Footnote 8] Thus, the Court had, in effect, disposed of
all collateral attacks upon the sentence then pending in the courts
-- as to the first § 2255 motion by adhering to its original denial
of certiorari and as to the three subsequent decisions of the Court
of Appeals in the further collateral proceedings by denying a stay,
a decision which showed that the Court saw no substantial question
in those proceedings to be preserved for its further
consideration.
Just a moment before adjournment of the 1952 Term, a petition
for an original writ of habeas corpus, including a request for a
stay, was presented to the Court. On account of the imminence of
the execution, counsel urged immediate action. They were advised
that prompt consideration would be given to the application. The
Court met in Special Term on the afternoon
Page 346 U. S. 282
of that day and denied the application. [
Footnote 9] The Special Term was then adjourned.
Late on June 15, 1953, counsel for the defendants applied to MR.
JUSTICE DOUGLAS for a stay. On June 16, 1953, counsel representing
one Edelman, who described himself as "next friend" to the
Rosenbergs, presented to MR. JUSTICE DOUGLAS a petition for habeas
corpus. That petition included a prayer for a stay. More than two
months before their appearance before MR. JUSTICE DOUGLAS,
Edelman's attorneys had asked counsel for the Rosenbergs to raise
the very question which they urged upon MR. JUSTICE DOUGLAS. The
argument was not adopted at that time by counsel for the
defendants. [
Footnote 10]
In
Page 346 U. S. 283
this recitation of facts, we do not hold in this case that a
waiver of this claim precluded its consideration.
On the morning of June 17, 1953, MR. JUSTICE DOUGLAS denied the
stay requested by counsel for the defendants, since it raised
questions already passed upon by the Court.
Edelman's counsel raised the claim that the Atomic Energy Act of
1946, 42 U.S.C. § 1810(b)(2) and (3), superseded the Espionage Act
and rendered the District Court without power to impose the death
sentence. MR. JUSTICE DOUGLAS was of the opinion that this
contention posed a substantial question; he denied the application
for habeas corpus, but granted a stay, effective until the
applicability of the Atomic Energy Act could be determined in the
District Court and the Court of Appeals.
The Attorney General then applied to the Court, asking that we
convene a Special Term of Court and vacate the stay. The Court was
convened in Special Term on June 18 1953, MR. JUSTICE BLACK
objecting.
Thus we were brought to this particular proceeding. The case was
argued for several hours on June 18. The Court then recessed and
deliberated in conference for several hours. During the next
morning, the Court held another conference, and then met at noon
and announced its decision in a per curiam opinion. We vacated the
stay.
Immediately following the announcement of this decision, counsel
for the Rosenbergs moved for a further stay, asking that the Court
grant them an additional period in which they might seek executive
clemency. Counsel for Edelman moved that the Court reconsider the
question of its power to vacate the stay. After a recess and
Page 346 U. S. 284
deliberation, the Court denied both motions, with MR. JUSTICE
BLACK noting dissents, and MR. JUSTICE FRANKFURTER appending a
separate memorandum to each order. [
Footnote 11]
Page 346 U. S. 285
The Special Term was adjourned. Thereafter, executive clemency
was denied. The sentence of death was carried out.
We have recited the history of this unusual case at length
because we think a full recitation is necessary to a proper
understanding of the decision rendered. We proceed to discuss two
questions of power: the power of MR. JUSTICE DOUGLAS to issue the
stay and the power of this Court to decide, in this proceeding, the
question preserved by the stay and the vacation of the stay.
MR. JUSTICE DOUGLAS had power to issue the stay. No one has
disputed this, and we think the proposition is indisputable.
Stays are part of the "traditional equipment for the
administration of justice."
Scripps-Howard Radio, Inc. v.
Federal Communications Commission, 316 U. S.
4,
316 U. S. 9-10
(1942). The individual Justices of this Court have regularly issued
them, and the exercise of that power is vital to the proper
functioning of our jurisdiction.
Confronted with the question of the applicability of the Atomic
Energy Act, MR. JUSTICE DOUGLAS wrote:
"I have serious doubts whether this death sentence may be
imposed for this offense except and unless a jury recommends it.
The Rosenbergs should have an opportunity to litigate that
issue."
"I will not issue the writ of habeas corpus. But I will grant a
stay effective until the question of the applicability of the penal
provisions of § 10 of the Atomic Energy Act to this case can be
determined by the District Court and the Court of Appeals, after
which the question of a further stay will be open to the Court of
Appeals or to a member of this Court in the usual order."
(
See post, p.
346 U. S.
321.)
Page 346 U. S. 286
After hearing argument on this question, we did not entertain
the serious doubts which MR. JUSTICE DOUGLAS had.
We turn next to a consideration of our power to decide, in this
proceeding, the question preserved by the stay. It is true that the
full Court has made no practice of vacating stays issued by single
Justices, although it has entertained motions for such relief.
[
Footnote 12] But reference
to this practice does not prove the nonexistence of the power; it
only demonstrates that the circumstances must be unusual before the
Court, in its discretion, will exercise its power.
The power which we exercised in this case derives from this
Court's role as the final forum to render the ultimate answer to
the question which was preserved by the stay.
Thus, MR. JUSTICE DOUGLAS, in issuing the stay, did not act to
grant some form of amnesty or last-minute reprieve to the
defendants; he simply acted to protect jurisdiction over the case,
to maintain the
status quo until a conclusive answer could
be given to the question which had been urged in the defendants'
behalf. In the exercise of our jurisdiction to decide the question
which was preserved for decision, it lay within our power to bring
the new claim before us and examine its merits without further
delay. In considering this question, the Court carried out the
limited purpose for which MR. JUSTICE DOUGLAS issued the stay.
The existence of our power was clear, and so also, we think, was
the necessity for its exercise. Yet it was urged at argument that
the Court, as a matter of discretion if not of power, should
refrain from immediately deciding the merits of the issue which had
been preserved by the stay. Indeed, the reasons for refusing, as a
matter of practice, to vacate stays issued by single Justices
are
Page 346 U. S. 287
obvious enough. Ordinarily, the stays of individual Justices
should stand until the grounds upon which they have issued can be
reviewed through regular appellate processes.
In this case, however, we deemed it proper and necessary to
convene the Court to consider the Attorney General's urgent
application. MR. JUSTICE DOUGLAS denied the petition for habeas
corpus. His grant of a stay called for initiation of a new
proceeding in the District Court. It followed hard on the heels of
our orders denying a rehearing, denying a further stay, and denying
a motion for leave to file a petition for habeas corpus in which a
stay was requested. The stay issued by MR. JUSTICE DOUGLAS was
based, of course, on a new claim -- a question which had not been
considered in any prior proceeding.
This Court has the responsibility to supervise the
administration of criminal justice by the federal judiciary. This
includes the duty to see that the laws are not only enforced by
fair proceedings, but also that the punishments prescribed by the
laws are enforced with a reasonable degree of promptness and
certainty. The stay which had been issued promised many more months
of litigation in a case which had otherwise run its full
course.
The question preserved for adjudication by the stay was entirely
legal; there was no need to resort to the factfinding processes of
the District Court; it was a question of statutory construction
which this Court was equipped to answer. We decided that a proper
administration of the laws required the Court to consider that
question forthwith.
This brought us to the merits. Our decision was summarized in
our per curiam opinion. [
Footnote 13] We held that the Atomic Energy Act of 1946
did not displace the Espionage Act. We held that this issue raised
no doubts of such magnitude to require further proceedings
before
Page 346 U. S. 288
execution of the District Court's original mandate -- a mandate
which had been affirmed on appeal and sustained thereafter despite
continuous collateral attack.
More complete statements of the reasons for our decision are set
forth in the opinions of MR. JUSTICE JACKSON [
Footnote 14] and MR. JUSTICE CLARK. [
Footnote 15] We need not reiterate
here what has been said in those opinions. It is enough to add,
that, in our view, the ultimate decision was clear. Accordingly, we
vacated the stay.
* [NOTE: This opinion was filed July 16, 1953.]
[
Footnote 1]
195 F.2d 583.
[
Footnote 2]
344 U.S. 838. The order noted that MR. JUSTICE BLACK was of the
opinion that certiorari should be granted.
[
Footnote 3]
344 U. S. 889-890.
The full text of the order reads:
"Motion for leave to file brief of Dr. W.E.B. Dubois and others
as
amici curiae denied. Petitions for rehearing denied.
Memorandum filed by MR. JUSTICE FRANKFURTER in No. 111. MR. JUSTICE
BLACK adheres to his view that the petitions for certiorari should
be granted."
"MR. JUSTICE FRANKFURTER."
"Petitioners are under death sentence, and it is not
unreasonable to feel that, before life is taken, review should be
open in the highest court of the society which has condemned them.
Such right of review was the law of the land for twenty years. By §
6 of the Act of February 6, 1889, 25 Stat. 655, 656, convictions in
capital cases arising under federal statutes were appealable here.
But, in 1911, Congress abolished the appeal as of right, and, since
then, death sentences have come here only under the same conditions
that apply to any criminal conviction in a federal court. (§§ 128,
238, 240 and 241 of the Judicial Code, 36 Stat. 1087, 1133,
1157.)"
"The Courts of Appeals are charged by Congress with the duty of
reviewing all criminal convictions. These are courts of great
authority, and corresponding responsibility. The Court of Appeals
for the Second Circuit was deeply conscious of its responsibility
in this case. Speaking through Judge Frank, it said:"
"Since two of the defendants must be put to death if the
judgments stand, it goes without saying that we have scrutinized
the record with extraordinary care to see whether it contains any
of the errors asserted on this appeal."
"195 F.2d 583, 590."
"After further consideration, the Court has adhered to its
denial of this petition for certiorari. Misconception regarding the
meaning of such a denial persists despite repeated attempts at
explanation. It means, and all that it means, is that there were
not four members of the Court to whom the grounds on which the
decision of the Court of Appeals was challenged seemed sufficiently
important when judged by the standards governing the issue of the
discretionary writ of certiorari. It also deserves to be repeated
that the effective administration of justice precludes this Court
from giving reasons, however briefly, for its denial of a petition
for certiorari. I have heretofore explained the reasons that, for
me, also militate against noting individual votes when a petition
for certiorari is denied.
See Chemical Bank & Trust Co. v.
Group of Institutional Investors, 343 U. S.
982."
"Numerous grounds were urged in support of this petition for
certiorari; the petition for rehearing raised five additional
questions. So far as these questions come within the power of this
Court to adjudicate, I do not, of course, imply any opinion upon
them. One of the questions, however, first raised in the petition
for rehearing, is beyond the scope of the authority of this Court,
and I deem it appropriate to say so. A sentence imposed by a United
States district court, even though it be a death sentence, is not
within the power of this Court to revise."
[
Footnote 4]
108 F.
Supp. 798.
[
Footnote 5]
200 F.2d 666.
[
Footnote 6]
345 U.S. 965. The full text of the order reads:
"Motions for leave to file briefs of National Lawyers Guild and
Joseph Brainin
et al. for writ of certiorari to the United
States Court of Appeals for the Second Circuit denied. The order of
the United States Court of Appeals of February 17, 1953, granting a
stay of execution is vacated. MR. JUSTICE BLACK and MR. JUSTICE
FRANKFURTER, referring to the positions they took when these cases
were here last November, adhere to them.
344 U. S.
889. MR. JUSTICE DOUGLAS is of the opinion the petition
for certiorari should be granted."
[
Footnote 7]
345 U. S. 989. The
full text of the order reads:
"An application for stay of execution was filed herein on June
12, 1953. It was referred to MR. JUSTICE JACKSON, the appropriate
Circuit Justice. MR. JUSTICE JACKSON referred it to the Court for
consideration and action, with the recommendation 'that it be set
for oral hearing on Monday, June 15, 1953, at which time the
parties have agreed to be ready for argument.'"
"Upon consideration of the recommendation, the Court declined to
hear oral argument on the application."
"MR. JUSTICE FRANKFURTER and MR. JUSTICE BURTON, agreeing with
MR. JUSTICE JACKSON's recommendation, believe that the application
should be set for hearing on Monday, June 15, 1953."
"Thereupon, the Court gave consideration to the application for
the stay, and denies it, MR. JUSTICE BURTON joining in such
denial."
"MR. JUSTICE FRANKFURTER and MR. JUSTICE JACKSON, believing that
the application for a stay should not be acted upon without a
hearing before the full Court, do not agree that the stay should be
denied."
"MR. JUSTICE BLACK is of the opinion that the Court should grant
a rehearing and a stay pending final disposition of the case. But
since a sufficient number do not vote for a rehearing, he is
willing to join those who wish to hear argument on the question of
a stay."
"MR. JUSTICE DOUGLAS would grant a stay and hear the case on the
merits, as he thinks the petition for certiorari and the petition
for rehearing present substantial questions. But since the Court
has decided not to take the case, there would be no end served by
hearing oral argument on the motion for a stay. For the motion
presents no new substantial question not presented by the petition
for certiorari and by the petition for rehearing."
[
Footnote 8]
345 U.S. 1003. The full text of the order reads:
"Petition for rehearing denied. Mr. Justice Frankfurter deems it
appropriate to state once more that the reasons that preclude
publication by the Court, as a general practice, of votes on
petition for certiorari guide him in all cases, so that it has been
his 'unbroken practice not to note dissent from the Court's
disposition of petitions for certiorari.'
Chemical Bank Co. v.
Group of Institutional Investors, 343 U. S.
982;
Maryland v. Baltimore Radio Show,
338 U. S.
912;
Darr v. Burford, 339 U. S.
200,
339 U. S. 227;
Agoston
v. Pennsylvania, 340 U.S. 844;
Bondholders, Inc. v.
Powell, 342 U. S. 921;
Rosenberg v.
United States, 344 U. S. 889, 345 U.S. 965.
Partial disclosure of votes on successive stages of a certiorari
proceeding does not present an accurate picture of what took
place."
"Mr. Justice Black is of the opinion the petition for rehearing
should be granted."
[
Footnote 9]
346 U. S. 271. The
full text of the order reads:
"The motion for leave to file petition for an original writ of
habeas corpus is denied. Mr. Justice Black dissents."
"Mr. Justice Frankfurter:"
"The disposition of an application to this Court for habeas
corpus is so rarely to be made by this Court directly that Congress
has given the Court authority to transfer such an application to an
appropriate district court. 28 U.S.C. § 2241. I do not favor such a
disposition of this application because the substance of the
allegations now made has already been considered by the District
Court for the Southern District of New York and on review by the
Court of Appeals for the Second Circuit. Neither can I join the
Court in denying the application without more. I would set the
application down for hearing before the full Court tomorrow
forenoon. Oral argument frequently has a force beyond what the
written word conveys."
[
Footnote 10]
Counsel for the Rosenbergs was aware of the existence of the
Atomic Energy Act long before receiving the suggestion from counsel
for Edelman. One argument,
inter alia, advanced in the
original certiorari petition, which was filed June 7, 1952, was
that the sentence of death constituted cruel and unusual punishment
in violation of the Eighth Amendment of the Constitution. The
requirement of the Atomic Energy Act of an intent to injure the
United States as a prerequisite to the death penalty (42 U.S.C. §
1810(b)(2) and (3) and § 1816), was cited in the petition in
support of the cruel and unusual punishment argument. In the
petition for certiorari, as well as the petition for rehearing,
filed October 28, 1952, in regard to other contentions, counsel for
the defendants cited Newman, Control of Information Relating to
Atomic Energy, 56 Yale L.J. 769. That article deals extensively
with the relationship of sentences under the Atomic Energy Act and
under the Espionage Act.
[
Footnote 11]
346 U. S. 322. The
order denying a further stay read:
"Motion of the petitioners for a further stay of the execution,
as set forth in the written motion, is denied."
"MR. JUSTICE BLACK dissents."
"MR. JUSTICE FRANKFURTER."
"On the assumption that the sentences against the Rosenbergs are
to be carried out at 11 o'clock tonight, their counsel ask this
Court to stay their execution until opportunity has been afforded
to them to invoke the constitutional prerogative of clemency. The
action of this Court, and the division of opinion in vacating the
stay granted by MR. JUSTICE DOUGLAS, are, of course, a factor in
the situation, which arose within the last hour. It is not for this
Court even remotely to enter into the domain of clemency reserved
by the Constitution exclusively to the President. But the Court
must properly take into account the possible consequences of a stay
or of a denial of a stay of execution of death sentences upon
making an appeal for executive clemency. Were it established that
counsel are correct in their assumption that the sentences of death
are to be carried out at 11 p.m. tonight, I believe that it would
be right and proper for this Court formally to grant a stay with a
proper time limit to give appropriate opportunity for the process
of executive clemency to operate. I justifiably assume, however,
that the time for the execution has not been fixed as of 11 o'clock
tonight. Of course, I respectfully assume that appropriate
consideration will be given to a clemency application by the
authority constitutionally charged with the clemency function."
The order denying a rehearing on the question of our power to
vacate the stay reads:
"The motion for reconsideration of the question of the Court's
power to vacate MR. JUSTICE DOUGLAS' stay order and hear oral
argument is denied."
"MR. JUSTICE BLACK dissents."
"MR. JUSTICE FRANKFURTER desires that it be noted that he too
would deny the motion to reconsider the power of this Court to
review MR. JUSTICE DOUGLAS' order to stay the execution, but not
because he thinks the matter is free from doubt.
See his
dissenting opinion in
Ex parte Republic of Peru,
318 U. S.
578,
318 U. S. 590, in connection
with
Lambert v. Barrett, 157 U. S. 697, and
Carper v.
Fitzgerald, 121 U. S. 87."
[
Footnote 12]
See, e.g., Land v. Dollar, 341 U.
S. 737 (1951);
Johnson v. Stevenson, 335 U.S.
801 (1948).
[
Footnote 13]
Post, p.
346 U. S.
288.
[
Footnote 14]
Post, p.
346 U. S.
289.
[
Footnote 15]
Post, p.
346 U. S.
293.
PER CURIAM.*
We convened a Special Term of the Court to consider an
application by the Attorney General (1) to review the stay of
execution of Julius Rosenberg and Ethel Rosenberg, granted by MR.
JUSTICE DOUGLAS on June 17, 1953, or (2) for reconsideration and
reaffirmance of this Court's order in No. 1, Misc., June 15 Special
Term, 1953,
Julius Rosenberg and Ethel Rosenberg, petitioners
v. Wilford L. Denno, Warden of Sing Sing Prison, denying a
stay.
ante, p.
346 U. S. 271.
The Acting Solicitor General agrees, and we do not doubt, that
MR. JUSTICE DOUGLAS had power to issue the stay in these
proceedings. There is no dispute that a stay should issue only if
there is a substantial question to be preserved for further
proceedings in the courts.
The question which has been and now is urged as being
substantial is whether the provisions of the Atomic Energy Act of
1946, 42 U.S.C. § 1810(b)(2, 3), rendered the District Court
powerless to impose the death sentence under the Espionage Act of
1917, 50 U.S.C. §§ 32(a), 34, under which statute the indictment
was laid.
Although this question was raised and presented for the first
time to MR. JUSTICE DOUGLAS by counsel who
Page 346 U. S. 289
have never been employed by the Rosenbergs, and who heretofore
have not participated in this case, the full Court has considered
it on its merits.
We think the question is not substantial. We think further
proceedings to litigate it are unwarranted. A conspiracy was
charged and proved to violate the Espionage Act in wartime. The
Atomic Energy Act did not repeal or limit the provisions of the
Espionage Act. Accordingly, we vacate the stay entered by MR.
JUSTICE DOUGLAS on June 17, 1953.
We are entering this order in advance of the preparation of full
opinions which will be filed with the Clerk.
Stay granted by Mr. Justice Douglas vacated.
MR. JUSTICE FRANKFURTER is of opinion that the questions raised
for the first time yesterday before the full Court by the
application of the Attorney General are complicated and novel. He
believes that, in order to enable the Court to adjudicate these
issues upon adequate deliberation, this application should be
disposed of only after opportunity has been afforded to counsel for
both sides to make an adequate study and presentation. In due
course, MR. JUSTICE FRANKFURTER will set forth more specifically
the grounds for this position.**
* [NOTE: This opinion was delivered June 19, 1953.]
** [
See post, p.
346 U. S.
301.]
By MR. JUSTICE JACKSON, whom MR. CHIEF JUSTICE VINSON, MR.
JUSTICE REED, MR. JUSTICE BURTON, MR. JUSTICE CLARK and MR. JUSTICE
MINTON join.
This stay was granted upon such legal grounds that this Court
cannot allow it to stand as the basis upon which lower courts must
conduct further long-drawn proceedings.
Page 346 U. S. 290
The sole ground stated was that the sentence may be governed by
the Atomic Energy Act of August 1, 1946, instead of by the earlier
Espionage Act. The crime here involved was commenced June 6, 1944.
This was more than two years before the Atomic Energy Act was
passed. All overt acts relating to atomic energy on which the
Government relies took place as early as January, 1945.
The Constitution, art. I, § 9, prohibits passage of any
ex
post facto Act. If Congress had tried in 1946 to make
transactions of 1944 and 1945 offenses, we would have been obliged
to set such an Act aside. To open the door to retroactive criminal
statutes would rightly be regarded as a most serious blow to one of
the civil liberties protected by our Constitution. Yet the sole
ground of this stay is that the Atomic Energy Act may have
retrospective application to conspiracies in which the only overt
acts were committed before that statute was enacted.
We join in the opinion by MR. JUSTICE CLARK and agree that the
Atomic Energy Act does not, by text or intention, supersede the
earlier Espionage Act. It does not purport to repeal the earlier
Act, nor afford any grounds for spelling out a repeal by
implication. Each Act is complete in itself, and each has its own
reason for existence and field of operation. Certainly prosecution,
conviction, and sentence under the law in existence at the time of
the overt acts are not improper. It is obvious that an attempt to
prosecute under the later Act would, in all probability, fail.
This stay is not and could not be based upon any doubt that a
legal conviction was had under the Espionage Act. Application here
for review of the Court of Appeals decision affirming the
conviction was refused, 344 U.S. 838, and rehearing later denied,
344 U. S. 889.
Later, responsible and authorized counsel raised, among other
issues, questions as to the sentence, and an application
Page 346 U. S. 291
was made for stay until they could be heard. The application was
referred to the full Court, with the recommendation that the full
Court hold immediate hearing and, as an institution, make a prompt
and final disposition of all questions. This was supported by four
Justices, and failed for want of one more, MR. JUSTICE DOUGLAS
recording his view that "there would be no end served by hearing
oral argument on the motion for a stay."
345 U.
S. 989.
Thus, after being in some form before this Court over nine
months, the merits of all questions raised by the Rosenbergs'
counsel had been passed upon, or foreclosed by denials. However, on
this application, we have heard and decided (since it had been the
ground for granting the stay) a new contention, despite the
irregular manner in which it was originally presented.
This is an important procedural matter of which we disapprove.
The stay was granted solely on the petition of one Edelman, who
sought to appear as "next friend" of the Rosenbergs. Of course,
there is power to allow an appearance in that capacity, under
circumstances such as incapacity or isolation from counsel, which
make it appropriate to enable the Court to hear a prisoner's case.
But, in these circumstances, the order which grants Edelman's
standing further to litigate this case in the lower courts cannot
be justified.
Edelman is a stranger to the Rosenbergs and to their case. His
intervention was unauthorized by them, and originally opposed by
their counsel. What may be Edelman's purpose in getting himself
into this litigation is not explained, although inquiry was made at
the bar. It does not appear that his own record is entirely clear,
or that he would be a helpful or chosen champion.
See Edelman
v. California, 344 U. S. 357.
The attorneys who appear for Edelman tell us that, for two
months, they tried to get the authorized counsel for
Page 346 U. S. 292
the Rosenbergs to raise this issue, but were refused. They also
inform us that they have eleven more points to present hereafter,
although the authorized counsel do not appear to have approved such
issues.
The Rosenbergs throughout have had able and zealous counsel of
their own choice. These attorneys originally thought this point had
no merit, and perhaps also that it would obscure the better points
on which they were endeavoring to procure a hearing here. Of
course, after a Justice of this Court had granted Edelman standing
to raise the question and indicated that he is impressed by its
substantiality, counsel adopted the argument, and it became
necessary for us to review it. They also shared their time and the
counsel table with the Edelman lawyers thus admitted as
attorneys-at-large to their case. The lawyers who have ably and
courageously fought the Rosenbergs' battle throughout then listened
at this bar to the newly imported counsel make an argument which
plainly implied lack of understanding or zeal on the part of the
retained counsel. They simply had been elbowed out of the control
of their case.
Every lawyer familiar with the workings of our criminal courts
and the habits of our bar will agree that this precedent presents a
threat to orderly and responsible representation of accused persons
and the right of themselves and their counsel to control their own
cases. The lower court refused to accept Edelman's intrusion, but,
by the order in question, must accept him as having standing to
take part in, or to take over, the Rosenbergs' case. That such
disorderly intervention is more likely to prejudice than to help
the representation of accused persons in highly publicized cases is
self-evident. We discountenance this practice.
Vacating this stay is not to be construed as indorsing the
wisdom or appropriateness to this case of a death sentence.
Page 346 U. S. 293
That sentence, however, is permitted by law, and, as was
previously pointed out, is therefore not within this Court's power
of revision.
344 U. S. 889,
889.
MR. JUSTICE CLARK, with whom THE CHIEF JUSTICE, MR. JUSTICE
REED, MR. JUSTICE JACKSON, MR. JUSTICE BURTON, and MR. JUSTICE
MINTON join.*
Seven times now have the defendants been before this Court. In
addition, THE CHIEF JUSTICE, as well as individual Justices, have
considered applications by the defendants. The Court of Appeals and
the District Court have likewise given careful consideration to
even more numerous applications than has this Court.
The defendants were sentenced to death on April 5, 1951.
Beginning with our refusal to review the conviction and sentence in
October, 1952, each of the Justices have given the most painstaking
consideration to the case. In fact, all during the past Term of
this Court, one or another facet of this litigation occupied the
attention of the Court. At a Special Term on June 15, 1953, we
denied for the sixth time the defendants' plea. The next day, an
application was presented to MR. JUSTICE DOUGLAS contending that
the penalty provisions of the Atomic Energy Act governed this
prosecution, and that, since the jury did not find that the
defendants committed the charged acts with intent to injure the
United States nor recommend the imposition of the death penalty,
the court had no power to impose the sentence of death. After a
hearing, MR. JUSTICE DOUGLAS, finding that the contention had
merit, granted a stay of execution. The Court convened in Special
Term to review that determination.
Cf. Ex parte Quirin,
317 U. S. 1
(1942).
Page 346 U. S. 294
Human lives are at stake; we need not turn this decision on fine
points of procedure or a party's technical standing to claim
relief. Nor did MR. JUSTICE DOUGLAS lack the power and, in view of
his firm belief that the legal issues tendered him were
substantial, he even had the duty to grant a temporary stay. But,
for me, the short answer to the contention that the Atomic Energy
Act of 1946 may invalidate defendants' death sentence is that the
Atomic Energy Act cannot here apply. It is true that § 10(b)(2) and
(3) of that Act authorizes capital punishment only upon
recommendation of a jury and a finding that the offense was
committed with intent to injure the United States. 60 Stat. 755,
766, 42 U.S.C. § 1810(b)(2), (3). (Notably, by that statute the
death penalty may be imposed for
peacetime offenses as
well, thus exceeding in harshness the penalties provided by the
Espionage Act.) This prosecution, however, charged a wartime
violation of the Espionage Act of 1917, under which these elements
are not prerequisite to a sentence of death. Where Congress, by
more than one statute, proscribes a private course of conduct, the
Government may choose to invoke either applicable law: "At least
where different proof is required for each offense, a single act or
transaction may violate more than one criminal statute."
United
States v. Beacon Brass Co., 344 U. S. 43,
344 U. S. 45;
see also United States v. Noveck, 273 U.
S. 202,
273 U. S. 206;
Gavieres v. United States, 220 U.
S. 338 (1911). Nor does the partial overlap of two
statutes necessarily work a
pro tanto repealer of the
earlier Act.
Id.
"It is a cardinal principle of construction that repeals by
implication are not favored. When there are two acts upon the same
subject, the rule is to give effect to both, if possible. . . . The
intention of the legislature to repeal 'must be clear and
manifest.' . . . It is not sufficient . . . 'to establish that
subsequent laws cover some or even all of the cases provided for by
[the prior
Page 346 U. S. 295
act],' for they may be merely affirmative, or cumulative, or
auxiliary."
There must be "a positive repugnancy between the provisions of
the new law and those of the old."
United States v. Borden
Co., 308 U. S. 188,
308 U. S. 198
(1939). Otherwise, the Government when charging a conspiracy to
transmit both atomic and non-atomic secrets would have to split its
prosecution into two alleged crimes. Section 10(b)(6) of the Atomic
Energy Act itself, moreover, expressly provides that § 10 "shall
not exclude the applicable provisions of any other laws . . . ," an
unmistakable reference to the 1917 Espionage Act.* Therefore, this
section of the Atomic Energy Act, instead of repealing the penalty
provisions of the Espionage Act, in fact preserves them in
undiminished force. Thus, there is no warrant for superimposing the
penalty provisions of the later Act upon the earlier law.
In any event, the Government could not have invoked the Atomic
Energy Act against these defendants. The crux of the charge alleged
overt acts committed in 1944 and 1945, years before that Act went
into effect. While some overt acts did in fact take place as late
as 1950, they related principally to defendants' efforts to avoid
detection
Page 346 U. S. 296
and prosecution of earlier deeds. Grave doubts of
unconstitutional
ex post facto criminality would have
attended any prosecution under that statute for transmitting atomic
secrets before 1946. Since the Atomic Energy Act thus cannot cover
the offenses charged, the alleged inconsistency of its penalty
provisions with those of the Espionage Act cannot be sustained.
Our liberty is maintained only so long as justice is secure. To
permit our judicial processes to be used to obstruct the course of
justice destroys our freedom. Over two years ago, the Rosenbergs
were found guilty by a jury a of a grave offense in time of war.
Unlike other litigants, they have had the attention of this Court
seven times; each time, their pleas have been denied. Though the
penalty is great and our responsibility heavy, our duty is
clear.
* [NOTE: This opinion was delivered June 19, 1953.]
*
See Newman and Miller, The Control of Atomic Energy,
p. 235 (1948); Newman, Control of Information Relating to Atomic
Energy, 56 Yale L.J. 769, 790 (1947).
While § 10(b)(6) additionally contains an exception, providing
that "no Government agency shall take any action under such other
laws inconsistent with the provisions of this section," that
exception is not applicable here. As disclosed by the legislative
history of the Act (which must be read to refer to § 10(b)(6)),
it
"prohibits any agency from placing information in a restricted
category under the authority of this or any other law once such
information has been released from the category by official action
of the Atomic Energy Commission."
S.Rep.No.1211, 79th Cong., 2d Sess., p. 24.
And see 92
Cong.Rec. 6096 (1946):
"Section 10 also establishes the Commission as the top authority
in the Government with reference to what will or will not remain as
restricted data. . . ."
MR. JUSTICE BLACK, dissenting.
It is argued that the Court is not asked to "act with unseemly
haste to avoid postponement of a scheduled execution." I do not
agree. I do not believe that Government counsel or this Court has
had time or an adequate opportunity to investigate and decide the
very serious question raised in asking this Court to vacate the
stay granted by MR. JUSTICE DOUGLAS. The oral arguments have been
wholly unsatisfactory, due entirely to the lack of time for
preparation by counsel for the Government and counsel for the
defendants. Certainly the time has been too short for me to give
this question the study it deserves. The following are some of the
reasons why I think the Court should not at this time upset the
considered rulings of MR. JUSTICE DOUGLAS. I add my regret that the
rush of this case has deprived me of any opportunity
Page 346 U. S. 297
to do more at this time than hastily sketch my view on the
important questions raised.
First. The Government argues that this Court has power
to set aside the stay granted by MR. JUSTICE DOUGLAS. I think this
is doubtful. I have found no statute or rule of court which permits
the full Court to set aside a mere temporary stay entered by a
Justice in obedience to his statutory obligations.* Moreover, it is
a commonplace for judges to grant stays in vacation. This is a
healthy and necessary Court custom. There may have been prior
instances where vacation stays of individual Justices have been set
aside by the full Court before the next regular term, but no such
cases have been pointed out in the Solicitor General's argument,
and I have found none. So far as I can tell, the Court's action
here is unprecedented.
But if the Court could find statutory or constitutional power to
vacate this stay, there are many reasons why I believe that power
should not be exercised. Concededly,
Page 346 U. S. 298
an individual Justice has power to grant stays where substantial
questions are raised. He not merely has power to do so; there is a
serious obligation upon him to grant a stay where new substantial
questions are presented. Where the life or death of citizens is
involved, that obligation is all the heavier. Surely the Court is
not here establishing a precedent which will require it to call
extra sessions during vacation every time a federal or state
official asks it to hasten the electrocution of defendants without
affording this Court adequate time or opportunity for exploration
and study of serious legal questions. It is not inappropriate to
point out that, in
Lambert v. Barrett, 157 U.
S. 697, decided in 1895 and never overruled, this Court
held that it had no jurisdiction over an appeal from a habeas
corpus order of a circuit judge entered in chambers. The stay order
in this case derives from petitions for habeas corpus, and was
entered by MR. JUSTICE DOUGLAS in chambers.
Second. The stay of MR. JUSTICE DOUGLAS in this case
was based on his studied conclusion that there were substantial
grounds to believe the death sentences of these two people were
imposed by the District Judge in violation of law. I agree with MR.
JUSTICE DOUGLAS. The Government contends, however, that the death
sentences were properly imposed under the Espionage Act of 1917, 50
U.S.C. § 32, which gives a district judge unconditional power to
impose the death penalty for violation of that Act. But the Atomic
Energy Act, 42 U.S.C. § 1810, passed in 1946, appears to have taken
the death sentencing power from district judges, in cases of atomic
energy espionage, except where juries recommend a death sentence
and where there are allegations and proof that atomic energy
information has been unlawfully transmitted with intent to injure
the United States. The indictment here charged a conspiracy alleged
to have continued from June 6, 1944, to June 16, 1950. Thus,
the
Page 346 U. S. 299
alleged conspiracy covered one period of conduct where the 1917
Act plainly governed, and another period of conduct after the
Atomic Energy Act went into effect. The Rosenbergs were charged
with conspiracy to disclose atomic secrets as well as other kinds
of secrets. Under these circumstances, it would more nearly fit
into the general canons of construction to hold that a District
Court could impose sentence only under the less harsh statute.
I am not unaware of the Government's argument that this Court
can and should give full effect to both these statutes, one which
deprives the District Court of unconditional power to impose the
death sentence and one which grants such unconditional power. This
would be a strange argument in any case, but it seems still
stranger to me in a case which involves matters of life and death.
The stay of MR. JUSTICE DOUGLAS is based entirely on his desire to
have this matter passed upon in due course, and after proper
deliberation in a habeas corpus proceeding brought in district
court and followed through to this Court. That is as it should be.
Judicial haste is peculiarly out of place where the death penalty
has been imposed for conduct part of which took place at a time
when the Congress appears to have barred the imposition of the
death penalty by district judges acting without a jury's
recommendation. And it seems to me that this Court has not had time
or opportunity for sufficient study to give the kind of informed
decision on this important question it would if the case should
take its regular course.
Third. I am aware also of the argument that MR. JUSTICE
DOUGLAS should not have considered, and that we should not now
consider, the point here involved, because the Rosenbergs' lawyers
had not originally raised it on appeal. I cannot believe, however,
that, if the sentence of a citizen to death is plainly illegal,
this Court would allow that citizen to be executed on the grounds
that his
Page 346 U. S. 300
lawyers had "waived" plain error. An illegal execution is no
less illegal because a technical ground of "waiver" is assigned to
justify it.
Compare Bowen v. Johnston, 306 U. S.
19,
306 U. S. 26.
After having seen the Court's order, I find that it appears to
agree with this view.
Fourth. The inadequate oral arguments before this Court
have left me with the firm conviction that the applicability of the
penal provisions of the Atomic Energy Act of 1946 to this case
presents a substantial and serious question. This I think is fully
demonstrated by the opinion written by MR. JUSTICE DOUGLAS when he
granted the stay order, a copy of which is attached by him as an
346
U.S. 273app|>appendix to his opinion, with which opinion I
agree. It is my view, based on the limited arguments we have heard,
that, after passage of the Atomic Energy Act of 1946, it was
unlawful for a judge to impose the death penalty for unlawful
transmittal of atomic secrets unless such a penalty was recommended
by the jury trying the case. I think this question should be
decided only after time has been afforded counsel for the
Government and for the defendants to make more informed arguments
than we have yet heard, and after this Court has had an opportunity
to give more deliberation than it has given up to this date. This I
think would be more nearly in harmony with the best judicial
traditions.
I may add that I voted to grant certiorari originally in this
case. That petition for certiorari challenged the fairness of the
trial. It also challenged the right of the Government to try these
defendants except under the limited rules prescribed by the
Constitution defining the offense of treason. These I then believed
to be important questions. In motions for rehearing, the arguments
as to the unfairness of the trial were expanded, and I again voted
for review. I have long thought that the practice of some of the
states to require an automatic review by the
Page 346 U. S. 301
highest court of the state in cases which involve the death
penalty was a good practice.
It is not amiss to point out that this Court has never reviewed
this record, and has never affirmed the fairness of the trial
below. Without an affirmance of the fairness of the trial by the
highest court of the land, there may always be questions as to
whether these executions were legally and rightfully carried out. I
would still grant certiorari, and let this Court approve or
disapprove the fairness of the trials.
|346 U.S. ast6|
* The Government cites 28 U.S.C. § 2106 and § 1651, as statutory
authority for the Court's action in dissolving the stay granted by
MR. JUSTICE DOUGLAS. Neither statute authorizes the Court's action.
Section 2106 provides:
"The Supreme Court or any other court of appellate jurisdiction
may affirm, modify, vacate, set aside or reverse any judgment,
decree, or order of a court lawfully brought before it for review,
and may remand the cause and direct the entry of such appropriate
judgment, decree, or order, or require such further proceedings to
be had as may be just under the circumstances."
But the plain words of this section exclude the case here. Those
words say this Court may affirm, etc., any "judgment, decree, or
order of a court. . . ." But no court order is before us. Nor can
the Government take comfort in § 1651. It says only that "The
Supreme Court and all courts established by Act of Congress may
issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law."
The statute says nothing about dissolution of a stay order.
MR. JUSTICE FRANKFURTER, dissenting.*
On an application made after adjournment of the Court, MR.
JUSTICE DOUGLAS granted a stay of execution of the death sentences
of Julius and Ethel Rosenberg. On the afternoon of the same day,
the Attorney General of the United States filed an application to
convene the Court in Special Term with a view to vacating the stay.
It was not until late that afternoon that arrangements for
convening the Court the following day could be completed. Less than
three hours before the Court convened at about noon on Thursday,
June 18, and, in the case of some members of the Court, only a few
minutes before noon, did the individual members of the Court
receive the Government's application and brief bearing on the
propriety and reviewability of MR. JUSTICE DOUGLAS' order.
There followed three hours of argument on jurisdictional and
procedural issues, as well as on the issue of the substantiality of
the question of law raised by the application for a stay which led
to MR. JUSTICE DOUGLAS' order. In vacating that order, the Court
found no infirmity in it on any jurisdictional or procedural
ground. The Court recognized MR. JUSTICE DOUGLAS' power to
Page 346 U. S. 302
entertain the application for a stay; [
Footnote 2/1] his power to consider a question, though
raised by counsel not of record; his power to consider a question
not heretofore urged, when it concerned the legality of a sentence.
See Ex parte
Lange, 18 Wall. 163.
Thus, the only issue in the case was whether the question on the
basis of which MR. JUSTICE DOUGLAS acted was patently frivolous or
was sufficiently serious to require the judicial process to run its
course with the deliberation necessary for confident judgment. That
is the sole issue to which this opinion is addressed. All else is
irrelevant. Once the Court conceded, as it did, that the
substantiality of the question raised before MR. JUSTICE DOUGLAS
was the sole issue, it became wholly immaterial how many other
questions had previously been raised and considered on their merits
in the District Court and in the Court of Appeals, or how many
times review was sought on these questions and refused by this
Court. It was equally immaterial how long a time intervened between
the original trial of this case and the present proceeding, and
immaterial that this was a last-minute effort almost on the eve of
the executions. To allow such irrelevancies to enter the mind not
unnaturally tends to bend the judicial judgment in a false
direction.
And so I turn to what is for me controlling in this case. I
summarized my position in the following notation on the Court's
order:
"MR. JUSTICE FRANKFURTER is of opinion that the questions raised
for the first time yesterday before the full Court by the
application of the Attorney General are complicated and novel. He
believes
Page 346 U. S. 303
that, in order to enable the Court to adjudicate these issues
upon adequate deliberation, this application should be disposed of
only after opportunity has been afforded to counsel for both sides
to make an adequate study and presentation. In due course, MR.
JUSTICE FRANKFURTER will set forth more specifically the grounds
for this position."
Painful as it is, I am bound to say that circumstances precluded
what to me are indispensable conditions for solid judicial
judgment. They precluded me, and now preclude me, from saying that
the legal issue that was raised before MR. JUSTICE DOUGLAS was
without substance. Let me set forth some of the difficulties that
immediately arise upon consideration of that issue.
The basis on which the jury convicts is authoritatively to be
taken from what the judge tells the jury. In this case, the jury's
attention was especially directed to the fact that the charge was a
conspiracy to obtain and transmit classified materials pertaining
in part to the atomic bomb:
"Bear in mind -- please listen to this, ladies and gentlemen --
that the Government contends that the conspiracy was one to obtain
not only atomic bomb information, but other secret and classified
information; that the information including the report regarding
fire control equipment requested of Elitcher by Sobell or Rosenberg
was classified; that the atomic bomb information transmitted by the
Rosenbergs was classified as top secret; that, based on Rosenberg's
alleged statements to Greenglass, other secret information such as
mathematical data on atomic energy for airplanes, information
relating to a 'sky platform' project, and other information was
obtained by Julius Rosenberg from scientist contacts in the
country."
R. 1557.
Page 346 U. S. 304
And the indictment charged that the conspiracy continued from
1944 to 1950. Such "averments of time in the indictment are
expected and intended to be proved as laid."
United States v.
Kissel, 218 U. S. 601,
218 U. S. 609.
Indeed, the judge told the jury:
"You must first determine, from all the evidence in the case,
relating to the period of time defined in the indictment, whether
or not a conspiracy existed."
R. 1552. Only one conspiracy could have been found by the jury
to have existed, and that was the conspiracy averred in the
indictment, a conspiracy continuous from a date certain in 1944 to
a date certain in 1950. The Government could, of course, have
charged a conspiracy beginning in 1944 and ending on July 31, 1946,
the day before the Atomic Energy Act came into effect. It did not
do so. That fact is of decisive importance. The consequences of a
conspiracy that was afoot for six years might have been vastly
different from those of a conspiracy that terminated within two
years -- that is, by the time Congress devised legislation to
protect atomic energy secrets.
It is suggested that the overt acts laid in the indictment all
occurred before the effective date of the Atomic Energy Act, and
that, hence, the indictment did not charge any offense committed
after that effective date. But, again, the offense charged in the
indictment was a conspiracy, not one or more over acts. [
Footnote 2/2] As the judge told the jury,
they had to find a conspiracy in order to convict,
Page 346 U. S. 305
a conspiracy aimed principally at obtaining atomic secrets and
characterized as such by the overt acts alleged, but a conspiracy,
I cannot too often repeat, alleged to have been continuous to a
date certain in 1950. The Government having tried the Rosenbergs
for a conspiracy, continuing from 1944 to 1950, to reveal atomic
secrets among other things, it flies in the face of the charge
made, the evidence adduced, and the basis on which the conviction
was secured now to contend that the terminal date of the Rosenberg
Conspiracy preceded the effective date of the Atomic Energy
Act.
It thus appears -- although, of course, I would feel more secure
in my conviction had I had the opportunity to make a thorough study
of the lengthy record in this case -- that the conspiracy with
which the Rosenbergs were charged is one falling in part within the
terms of the Atomic Energy Act, passed by Congress in 1946 and
specifically dealing with classified information pertaining to the
recent developments in atomic energy. There remains the question
whether the sentence for such a conspiracy could be imposed under
the Espionage Act.
Congress was not content with the penal provisions of the
Espionage Act of 1917 to prevent disclosure of atomic energy
information. The relevant provisions of the Atomic Energy Act of
1946 differ in several respects from those of the Espionage Act.
For one thing, the 1946 Act makes possible the death penalty for
disclosures in time of peace, as well as in war. Some disclosures
which fell generally within the Espionage Act now specifically fall
under § 10 of the Atomic Energy Act. The decisive thing in this
case is that, under the Espionage Act, the power
Page 346 U. S. 306
to impose a sentence of death was left exclusively to the
discretion of the court, while, under the Atomic Energy Act, a
sentence of death can be imposed only upon recommendation of the
jury.
Surely it needs only statement that, with such a drastic
difference in the authority to take life between the Espionage Act
and the Atomic Energy Act, it cannot be left within the discretion
of a prosecutor whether the judge may impose the death sentence
wholly on his own authority, or whether he may do so only upon
recommendation of the jury. Nothing can rest on the prosecutor's
caprice in placing on the indictment the label of the 1917 Act or
of the 1946 Act. To seek demonstration of such an absurdity, in
defiance of our whole conception of impersonality in the criminal
law, would be an exercise in self-stultification. The indorsement
of an indictment, the theory under which the prosecutor is
operating, his belief or error as to the statute which supports an
indictment or under which sentences may be imposed, are all wholly
immaterial. [
Footnote 2/3]
Williams v. United States, 168 U.
S. 382,
168 U. S.
389.
These considerations -- the fact that Congress, and not the whim
of the prosecutor, fixes sentences, that the allegations of an
indictment are to be judged by the relevant statute under which
punishment may be meted out, and not by the design of the
prosecutor or the assumption of the trial court -- cut across all
the talk about repeal
Page 346 U. S. 307
by implication and other empty generalities on statutory
construction. Congress does not have to say in so many words that,
hereafter, a judge cannot, without jury recommendation, impose a
sentence of death on a charge of conspiracy that falls within the
Atomic Energy Act. It is enough if, in fact, Congress has provided
that, hereafter, such a death sentence is to depend on the will of
the jury.
This much, at least, lies on the surface of an analysis of the
two statutes. The Reports of this Court are replete with instances
of marked division of opinion in construing criminal statutes;
doubtful and ambiguous statutory language and like ambiguities in
the interpretative materials that led to many of those divisions
are certainly not more impressive, to say the least, than the
ambiguities and difficulties here.
See, e.g., United States v.
Dotterweich, 320 U. S. 277;
Singer v. United States, 323 U. S. 338;
United States v. Petrillo, 332 U. S.
1;
United States v. CIO, 335 U.
S. 106;
United States v. Williams, 341 U. S.
70;
United States v. Hood, 343 U.
S. 148.
In all matters of statutory construction, one goes, especially
these days, to the history of the legislation and other
illuminating materials. It is almost mathematically demonstrable
that there just was not time within twelve waking hours to dig out,
to assess, to assemble, and to formulate the meaning of legislative
materials. Suffice it to say that such materials bearing on
legislative purpose as a necessarily very limited inquiry has
revealed do not justify certitude.
See S.Rep. No. 1211,
79th Cong., 2d Sess. 23-24; 92 Cong.Rec. 6082, 6096, 9257, 10194;
cf. id. at 9481-9482. And an authoritative commentary on
the Atomic Energy Act, written by counsel for the Senate Special
Committee on Atomic Energy which drafted the statute, not only
recognizes a compelling need for judicial decision in order to
reconcile the conflicting penalty provisions of that Act and of
the
Page 346 U. S. 308
Espionage Act, but seems, as I read it, to point to the view
that, on facts like those of this case, the Atomic Energy Act may
well be found to apply to the exclusion of the Espionage Act.
[
Footnote 2/4] Newman, Control of
Information Relating to Atomic Energy, 56 Yale L.J. 768.
Neither counsel nor the Court, in the time available, were able
to go below the surface of the question raised
Page 346 U. S. 309
by the application for a stay which MR. JUSTICE DOUGLAS granted.
More time was needed than was had for adequate consideration.
Arguments by counsel are an indispensable adjunct of the judicial
process, and responsible arguments require adequate opportunity for
preparation. They must be pressed with the force of partisanship.
And because arguments are partisan, judgment further presupposes
ample time and an unhurried mind for independent study and
reflection by judges as a basis for discussion in conference.
Without adequate study, there cannot be adequate reflection;
without adequate reflection, there cannot be adequate discussion;
without adequate discussion, there cannot be the searching and
fruitful interchange of informed minds which is indispensable to
wise decision, and which alone can produce compelling opinions. We
have not had in this case carefully prepared argument. We have not
had what cannot exist without that essential preliminary. We have
not had the basis for reaching conclusions and for supporting them
in opinions. Can it be said that there was time to go through the
process by which cases are customarily decided here?
The crux of all I am suggesting is that none of the obvious
considerations for bringing the all too leaden-footed proceedings
in this case to an end should have barred the full employment of
the deliberative process necessary for reaching a firm conclusion
on the issue on which the Court has now spoken, however unfortunate
it may be that that issue did not emerge earlier than it did. Since
I find myself under the disability of having had
Page 346 U. S. 310
insufficient time to explore the issue as I believe it should
have been explored, nothing I am saying may be taken to intimate
that I would now sustain the last claim made in behalf of the
Rosenbergs. But I am clear that the claim had substance, and that
the opportunity for adequate exercise of the judicial judgment was
wanting.
To be writing an opinion in a case affecting two lives after the
curtain has been rung down upon them has the appearance of pathetic
futility. But history also has its claims. This case is an incident
in the long and unending effort to develop and enforce justice
according to law. The progress in that struggle surely depends on
searching analysis of the past, though the past cannot be recalled,
as illumination for the future. Only by sturdy self-examination and
self-criticism can the necessary habits for detached and wise
judgment be established and fortified so as to become effective
when the judicial process is again subjected to stress and
strain.
American criminal procedure has its defects, though its
essentials have behind them the vindication of long history. But
all systems of law, however wise, are administered through men, and
therefore may occasionally disclose the frailties of men.
Perfection may not be demanded of law, but the capacity to
counteract inevitable, though rare, frailties is the mark of a
civilized legal mechanism.
* [NOTE: This opinion was filed June 22, 1953.]
[
Footnote 2/1]
Naturally enough, the Government and the Court "do not doubt
that MR. JUSTICE DOUGLAS had power to issue the stay in this
proceeding." How could there be doubt about a power that has
existed uninterruptedly ever since Congress gave it by the Act of
September 24, 1789? Section 14 of the First Judiciary Act, 1 Stat.
73, 81-82.
[
Footnote 2/2]
It is worth noting that, under the Atomic Energy Act, it is very
probably not necessary, since the Act, unlike the Espionage Act,
does not make it a requirement, to prove overt acts in furtherance
of a conspiracy.
Cf. Singer v. United States, 323 U.
S. 338. If so, under the Atomic Energy Act, it would not
have been necessary to allege or prove an overt act involving
atomic espionage subsequent to 1946 in order to obtain a conviction
on a conspiracy indictment such as the one here. It is not without
significance that the relevance of this point was not considered by
the Government in its argument or submission. This is significant
not because it discloses a failure of counsel, but because to
require consideration of this and other points within twenty-four
hours after a complex of problems was first put forward is to
presuppose omniscient lawyers.
[
Footnote 2/3]
"In order to determine whether an indictment charges an offense
against the United States, designation by the pleader of the
statute under which he purported to lay the charge is immaterial.
He may have conceived the charge under one statute which would not
sustain the indictment, but it may nevertheless come within the
terms of another statute.
See Williams v. United States,
168 U. S.
382. On the other hand, an indictment may validly
satisfy the statute under which the pleader proceeded, but other
statutes not referred to by him may draw the sting of criminality
from the allegations."
United States v. Hutcheson, 312 U.
S. 219,
312 U. S.
229.
[
Footnote 2/4]
That the Atomic Energy Act is not a pellucid piece of
draftsmanship, so that he who runs may read, is indicated by this
general observation of Mr. Newman:
"Skillful administration and careful judicial consideration will
be needed to reconcile the apparent inconsistencies and to effect
the evident intent of Congress -- regardless of the labyrinth of
confusion that inadequate drafting has created."
56 Yale L.J. at 791.
Some of the specific difficulties laid bare by Mr. Newman are of
immediate relevance to the problem before the Court:
"It is reasonable to suppose that Congress did not intend to
give the prosecuting attorney the option of moving under the
Espionage Act instead of the Atomic Energy Act where an offense
involving information relating to atomic energy is specifically
described in the latter and only broadly and generically
encompassed by the former. On the other hand, this judgment creates
an intellectual predicament. Its acceptance might mean that, while
the disclosure of information relating to the construction of a
machine gun may, under given circumstances, be punishable by death,
the disclosure of information relating to the exact construction of
an atomic bomb would not, under the same circumstances, be
punishable by more than 10 years' imprisonment. But, in spite of
its anomalous consequences, the conclusion seems inescapable. When
Congress adopted Section 10 of the Atomic Energy Act, it intended
to prescribe the exact punishment to be applied for all violations
involving the unlawful dissemination of restricted atomic energy
data. And, in stating in Section 10(b)(6) that the applicable
provisions of other laws were not to be excluded, it meant to guard
against possible omissions, rather than to give a prosecutor the
option of proceeding under other laws against offenses fully
covered by the Atomic Energy Act for the sole reason that, under
such other laws, these offenses bore heavier penalties."
56 Yale L.J. at 797-798.
Finally, this specially qualified student of the Act concludes
that the conflicts and inconsistencies which he laid bare regarding
the penalty provisions can only be resolved, as such conflicts and
inconsistencies inevitably are resolved, by adjudication:
"
Differing penalty provisions: The difference can only
be resolved by judicial decision. Fortunately, this raises problems
within judicial proceedings as such, and does not pose any
difficulties or dilemmas for the Commission in administering the
Act."
56 Yale L.J. at 799.
MR. JUSTICE DOUGLAS, dissenting.*
When the motion for a stay was before me, I was deeply troubled
by the legal question tendered. After twelve hours of research and
study, I concluded, as my opinion** indicated, that the question
was a substantial one, never
Page 346 U. S. 311
presented to this Court and never decided by any court. So I
issued the stay order.
Now I have had the benefit of an additional argument and
additional study and reflection. Now I know that I am right on the
law.
The Solicitor General says in oral argument that the Government
would have been laughed out of court if the indictment in this case
had been laid under the Atomic Energy Act of 1946. I agree. For a
part of the crime alleged and proved antedated that Act. And
obviously no criminal statute can have retroactive application. But
the Solicitor General misses the legal point on which my stay order
was based. It is this -- whether or not the death penalty can be
imposed
without the recommendation of the jury for a crime
involving the disclosure of atomic secrets where a part of that
crime takes place after the effective date of the Atomic Energy
Act.
The crime of the Rosenbergs was a conspiracy that started prior
to the Atomic Energy Act and continued almost 4 years after the
effective date of that Act. The overt acts
alleged were
acts which took place prior to the effective date of the new Act.
But that is irrelevant for two reasons.
First, acts in
pursuance of the conspiracy were proved which took place after the
new Act became the law.
Second, under
Singer v. United
States, 323 U. S. 338, no
overt acts were necessary; the crime was complete when the
conspiracy was proved. And that conspiracy, as defined in the
indictment itself, endured almost 4 years after the Atomic Energy
Act became effective.
The crime therefore took place in substantial part
after the new Act became effective,
after
Congress had written new penalties for conspiracies to disclose
atomic secrets. One of the new requirements is that the death
penalty for that kind of espionage can be imposed
only if
the jury recommends it. And here there was no such
recommendation.
Page 346 U. S. 312
To be sure, this espionage included more than atomic secrets.
But there can be no doubt that the death penalty was imposed
because of the Rosenbergs' disclosure of atomic secrets. The trial
judge, in sentencing the Rosenbergs to death, emphasized that the
heinous character of their crime was trafficking in atomic secrets.
He said:
"I believe your conduct in putting into the hands of the
Russians the A-bomb years before our best scientists predicted
Russia would perfect the bomb has already caused, in my opinion,
the Communist aggression in Korea, with the resultant casualties
exceeding 50,000, and who knows but that millions more of innocent
people may pay the price of your treason. Indeed, by your betrayal,
you undoubtedly have altered the course of history to the
disadvantage of our country."
But the Congress in 1946 adopted new criminal sanctions for such
crimes. Whether Congress was wise or unwise in doing so is no
question for us. The cold truth is that the death sentence may not
be imposed for what the Rosenbergs did unless the jury so
recommends.
Some say, however, that, since
a part of the
Rosenbergs' crime was committed under the old law, the penalties of
the old law apply. But it is law too elemental for citation of
authority that, where two penal statutes may apply -- one carrying
death, the other imprisonment -- the court has no choice but to
impose the less harsh sentence.
A suggestion is made that the question comes too late -- that
since the Rosenbergs did not raise this question on appeal, they
are barred from raising it now. But the question of an unlawful
sentence is never barred. No man or woman should go to death under
an unlawful sentence merely because his lawyer failed to raise the
point. It is that function, among others, that the Great Writ
Page 346 U. S. 313
serves. I adhere to the views stated by Chief Justice Hughes for
a unanimous Court in
Bowen v. Johnston, 306 U. S.
19,
306 U. S.
26-27:
"It must never be forgotten that the writ of habeas corpus is
the precious safeguard of personal liberty, and there is no higher
duty than to maintain it unimpaired.
Ex parte
Lange [18 Wall. 163]. The rule requiring resort to
appellate procedure when the trial court has determined its own
jurisdiction of an offense is not a rule denying the power to issue
a writ of habeas corpus when it appears that nevertheless the trial
court was without jurisdiction. The rule is not one defining power,
but one which relates to the appropriate exercise of power."
Here, the trial court was without jurisdiction to impose the
death penalty, since the jury had not recommended it.
Before the present argument, I knew only that the question was
serious and substantial. Now I am sure of the answer. I know deep
in my heart that I am right on the law. Knowing that, my duty is
clear.
* [NOTE: This opinion was delivered June 19, 1953.]
** Attached hereto as an Appendix,
post, p.
346 U. S.
313.
|
346
U.S. 273app|
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS
Julius Rosenberg and Ethel )
Rosenberg. Petitioners )
v. ) Application for a Stay
The United States of America)
June 17, 1953
These are two applications for a stay of execution made to me
after adjournment of the Court on June 15, 1953. The first raises
questions concerning the fairness of the trial of the Rosenbergs. I
have heard oral argument
Page 346 U. S. 314
on that motion and considered the papers that have been filed.
This application does not present points substantially different
from those which the Court has already considered in its several
decisions to deny review of the case, to deny a stay of execution,
and to deny a petition for a writ of habeas corpus. While I
differed with the Court, and thought the case should have been
reviewed, the Court has spoken, and I bow to its decision. Although
I have the power to grant a stay, I could not do so responsibly on
grounds the Court has already rejected.
Another motion for stay, together with a petition for writ of
habeas corpus, challenges the power of the District Court to impose
the death sentence on the Rosenbergs. The Espionage Act, § 2(a), 40
Stat. 217, 218 (50 U.S.C. § 32(a)) provides:
"Whoever, with intent or reason to believe that it is to be used
to the injury of the United States or
to the advantage of a
foreign nation, communicates, delivers, or transmits, or
attempts to, or aids or induces another to, communicate, deliver,
or transmit, to any foreign government, or to any faction or party
or military or naval force within a foreign country, whether
recognized or unrecognized by the United States, or to any
representative, officer, agent, employee, subject, or citizen
thereof, either directly or indirectly, any document, writing, code
book, signal book, sketch, photograph, photographic negative, blue
print, plan, map, model, note, instrument, appliance, or
information relating to the national defense, shall be punished by
imprisonment for not more than twenty years:
Provided, That
whoever shall violate the provisions of subsection (a) of this
section in time of war shall be punished by death or by
imprisonment for not more than thirty years. . . ."
(Italics added.)
Page 346 U. S. 315
Section 4 provides:
"If two or more persons conspire to violate the provisions of
sections two or three of this title and one or more of such persons
does any act to effect the object of the conspiracy, each of the
parties to such conspiracy shall be punished as in said sections
provided in the case of the doing of the act the accomplishment of
which is the object of such conspiracy. Except as above provided
conspiracies to commit offenses under this title shall be punished
as provided by section thirty-seven of the Act to codify, revise,
and amend the penal laws of the United States approved March
fourth, nineteen hundred and nine."
The indictment, which was returned in 1951, charged a conspiracy
to violate § 32(a) with an intent to communicate information that
would be used to the advantage of a foreign nature,
viz.,
Soviet Russia. The conspiracy was alleged to have continued from
June 6, 1944, to and including June 16, 1950. The overt acts of the
Rosenbergs which were alleged took place in 1944 and 1945.
On August 1, 1946, the Atomic Energy Act became effective.
Section 10(b)(2) and (3) provide:
"(2) Whoever, lawfully or unlawfully, having possession of,
access to, control over, or being entrusted with, any document,
writing, sketch, photograph, plan, model, instrument, appliance,
note or information involving or incorporating restricted data --
[
Footnote 3/1] "
Page 346 U. S. 316
"(A) communicates, transmits, or discloses the same to any
individual or person, or attempts or conspires to do any of the
foregoing, with intent to injure the United States or with intent
to secure an advantage to any foreign nation, upon conviction
thereof, shall be punished by death or imprisonment for life
(
but the penalty of death or imprisonment for life may be
imposed only upon recommendation of the jury and only in cases
where the offense was committed with intent to injure the United
States); or by a fine of not more than $20,000 or imprisonment
for not more than twenty years, or both;"
(Italics added.)
"(B) communicates, transmits, or discloses the same to any
individual or person, or attempts or conspires to do any of the
foregoing, with reason to believe such data will be utilized to
injure the United States or to secure an advantage to any foreign
nation, shall, upon conviction, be punished by a fine of not more
than $10,000 or imprisonment for not more than ten years, or
both."
"
* * * *"
"(3) Whoever, with intent to injure the United States or with
intent to secure an advantage to any foreign nation, acquires, or
attempts or conspires to acquire any document, writing, sketch,
photograph, plan, model, instrument, appliance, note or information
involving or incorporating restricted data shall, upon conviction
thereof, be punished by death or imprisonment for life (
but the
penalty of death or imprisonment for life may be imposed only upon
recommendation of the jury and only in cases where the offense was
committed with intent to injure the
Page 346 U. S. 317
United States), or by a fine or of not more than
$20,000 or imprisonment for not more than twenty years, or
both."
(Italics added.) 60 Stat. 755, 766, 42 U.S.C. § 1810(b)(2),
(3).
It is apparent from the face of this new law that the District
Court is without power to impose the death penalty except
-- upon recommendation of the jury
and
-- where the offense was committed with an intent to
injure the United States.
Neither of those conditions is satisfied in this case, as the
jury did not recommend the death penalty, nor did the indictment
charge that the offense was committed with an intent to injure the
United States. If the Atomic Energy Act of 1946 is applicable to
the prosecution of the Rosenbergs, the District Court unlawfully
imposed the death sentence.
The Department of Justice maintains that the Espionage Act is
applicable to the indictment because all of the over acts alleged
took place before the passage of the Atomic Energy Act of 1946.
Petitioner maintains that, since the indictment was returned
subsequent to the Atomic Energy Act, and since the conspiracy
alleged, though starting prior to that time, continued thereafter,
the lighter penalties of the new Act apply.
Curiously, this point has never been raised or presented to this
Court in any of the earlier petitions or applications. The first
reaction is that, if it was not raised previously, it must have no
substance to it. But, on reflection, I think it presents a
considerable question. One purpose of the Atomic Energy Act was to
ameliorate the penalties imposed for disclosing atomic secrets. As
S.Rep. No. 1211, 79th Cong., 2d Sess., p. 23, stated, the problem
in drafting § 10 was to protect the "common
Page 346 U. S. 318
defense and security," and yet assure "sufficient freedom of
interchange between scientists to assure the Nation of continued
scientific progress."
The Rosenbergs obviously were not engaged in an exchange of
scientific information in the interests of science. But Congress
lowered the level of penalties to protect all those who might be
charged with the unlawful disclosure of atomic data. And if the
Rosenbergs are the beneficiaries, it is merely the result of the
application of the new law with an even hand. In any event,
Congress prescribed the precise conditions under which the death
penalty could be imposed. And all violators -- Communists as well
as non-Communists -- are entitled to that protection.
This question is presented to me for the first time on the eve
of the execution of the Rosenbergs, without the benefit of briefs
or any extended research. I cannot agree that it is a frivolous
point or without substance. I may be that not every death penalty
imposed for divulging atomic secrets need follow the procedure
prescribed in § 10 of the Atomic Energy Act. If the crime was
complete prior to the passage of that Act, possibly the old
Espionage Act would apply. But this case is different in three
respects:
First, the offense charged was a conspiracy
commencing before, but continuing after, the date of the new Act.
Second, although the overt acts alleged were committed in
1944 and in 1945, the Government's case showed acts of the
Rosenbergs in pursuance of the conspiracy long after the new Act
became effective. [
Footnote
3/2]
Page 346 U. S. 319
Third, the overt acts of the coconspirator, Sobell,
were alleged to have taken place between January, 1946, and May,
1948. But the proof against Sobell, as against the Rosenbergs,
extended well beyond the effective date of the new Act. [
Footnote 3/3] In short, a substantial
portion of the case
Page 346 U. S. 320
against the Rosenbergs related to acts in pursuance of the
conspiracy which occurred after August 1, 1946.
I do not decide that the death penalty could have been imposed
on the Rosenbergs only if the provisions of § 10
Page 346 U. S. 321
of the Atomic Energy Act of 1946 were satisfied. I merely decide
that the question is a substantial one which should be decided
after full argument and deliberation.
It is important that the country be protected against the
nefarious plans of spies who would destroy us.
It is also important that before we allow human lives to be
snuffed out we be sure -- emphatically sure -- that we act within
the law. If we are not sure, there will be lingering doubts to
plague the conscience after the event.
I have serious doubts whether this death sentence may be imposed
for this offense except and unless a jury recommends it. The
Rosenbergs should have an opportunity to litigate that issue.
I will not issue the writ of habeas corpus. But I will grant a
stay effective until the question of the applicability of the penal
provisions of § 10 of the Atomic Energy Act to this case can be
determined by the District Court and the Court of Appeals, after
which the question of a further stay will be open to the Court of
Appeals or to a member of this Court in the usual order.
So ordered.
[
Footnote 3/1]
It would seem that the secrets involved in this case were
"restricted data" within the meaning of the Act. Section 10(b)(1)
defines that term as meaning
"all data concerning the manufacture or utilization of atomic
weapons, the production of fissionable material, or the use of
fissionable material in the production of power, but shall not
include any data which the Commission from time to time determines
may be published without adversely affecting the common defense and
security."
[
Footnote 3/2]
Thus, the Government's brief filed July 25, 1952, in opposition
to the petitions of the Rosenbergs and of Sobell for certiorari
stated:
"In February, 1950, when the arrest of Klaus Fuchs was
publicized, Julius [Rosenberg] went to David [Greenglass] and told
him that Fuchs' contact was the man who had got data from Ruth and
David in June, 1945; that Fuchs' arrest meant that the
Greenglasses' activities would be discovered; and that, therefore,
they would have to leave the country (R. 523). These warnings were
renewed at the time of the arrest of Harry Gold (R. 525-526, 709)
in May, 1950. During that month, Julius gave David $1,000, and
promised him more, in order that David and Ruth might discharge
their obligations and leave the country (R. 526, 710). In addition,
he gave them specific and detailed instructions as to how to get to
Mexico, and ultimately to the Soviet Union (R. 526-530, 710)."
"Julius informed the Greenglasses that he and his wife also were
going to flee, and that they would meet the Greenglasses in Mexico
(R. 529, 713). Rosenberg did, in fact, ascertain from his physician
what inoculations were needed for a trip to Mexico (R. 851), and he
had passport pictures taken of himself and his family (R.
1427-1429)."
"On May 30, 1950, in accordance with Julius' request, the
Greenglasses had six sets of passport pictures taken, five of which
they gave to Julius (R. 530-531, 712). The sixth set was retained
by Greenglass and introduced in evidence at the trial (R. 531, 712;
Ex. 9A, 9B). A week later, Julius visited the Greenglasses'
apartment and gave David $4,000 wrapped in brown paper (R. 532,
713; Ex. 10). He asked David to repeat the flight instructions,
which David did (R. 532-533). David gave the $4,000 to his
brother-in-law, Louis Abel, who, after David's arrest, turned it
over to the latter's lawyer (R. 536, 713, 794-795)."
[
Footnote 3/3]
The Government's brief dated July 25, 1952, in opposition to the
petitions for certiorari filed by the Rosenbergs and by Sobell
summarized some of Sobell's activities as follows:
"In June, 1948, [Max] Elitcher decided to leave the Bureau of
Ordnance to take a job in New York (R. 256). When he informed
Sobell of his plans, the latter urged him not to do anything until
he discussed the matter with Rosenberg (R. 256).* Pursuant to
arrangements made by Sobell, Elitcher met Rosenberg and Sobell in
midtown New York (R. 256-257). When Rosenberg was told about
Elitcher's plans, he tried to persuade Elitcher to remain in
Washington, stating that he needed a source of information in the
Navy Department (R. 257). Rosenberg further stated that he had
already made plans for Elitcher to meet a contact in Washington (R.
257). During this conversation, Sobell also attempted to persuade
Elitcher to stay at the Bureau of Ordnance; he told Elitcher 'Well,
Rosenberg is right, Julie is right; you should do that' (R.
257).**"
"Sobell then left, and Elitcher had dinner with Rosenberg (R.
257). During the course of dinner, Rosenberg said that money could
be made available for the purpose of sending Elitcher to school to
improve his technical status (R. 258). Elitcher asked Rosenberg how
he had got 'started in this venture' (R. 258). Rosenberg replied
that. a long time ago. he had decided that this was what he wanted
to do; that he made it a point to get close to people in the
Communist Party, and kept getting from one person to another until
he finally succeeded in approaching a Russian 'who would listen to
his proposition concerning this matter of getting information to
Russia' (R. 258)."
"A month later, in July, 1948, Elitcher drove with his family
from Washington, D.C., to New York City, preparatory to changing
his job (R. 259). On the way, he noticed that he was being followed
(R. 259-260). Upon his arrival in New York, he proceeded to
Sobell's home, where he planned to stay overnight (R. 259). When
Elitcher told Sobell of his fear that he had been followed, Sobell
became angry, and said that Elitcher should not have come to his
house; that he had some valuable information in the house that he
should have given Rosenberg some time ago, information that was
'too valuable to be destroyed, and yet too dangerous to keep
around' (R. 260-261). Over Elitcher's protests, Sobell insisted the
information be delivered to Rosenberg that night. Sobell then took
at 35 millimeter film can from his house, and, accompanied by
Elitcher, drove to Manhattan. While Elitcher waited in the car,
Sobell left to deliver the can to Rosenberg. When Sobell returned,
Elitcher asked him what Rosenberg though about his being followed
(R. 261). Sobell replied that Rosenberg said that he had 'once
talked to Elizabeth Bentley on the phone, but he was pretty sure
she didn't know who he was, and therefore everything was all right'
(R. 261). The two then returned to Sobell's house (R. 261)."
* Elitcher testified that Sobell said, "Don't do anything before
you see me. I want to talk to you about it, and Rosenberg also
wants to speak to you about it" (R. 256).
** Elitcher nonetheless did not change his mind, and, shortly
afterwards, changed his employment (R. 257, 255).