Public Sacrifices

"Were the Rosenbergs framed?" This classic way of formulating the question implies that there are only two options: either Julius and Ethel Rosenberg—the parents of two young children who were killed by electric chair on June 19, 1953 on charges of "conspiracy to commit espionage"—were wholly innocent victims of a postwar Red Scare, or they were guilty and therefore presumably deserving of their fate. 

On this reading, the conventional historiography of the case divides into two periods: (1) in the years immediately following their trial, educated opinion generally presumed they were innocent. This was due to left-wing suspicion of the government and the collective need to make atonement and beat one's breast over the excesses of McCarthyism, etc. 

Then, (2) after the Cold War ended and the Soviet archives were opened, it became clear that the U.S. government's narrative had been substantially correct. Julius, at least, was the leader of a small spy ring with connections to atomic scientists. They were knowingly passing state secrets to KGB agents who were working on U.S. soil. And so forth. 

According to this reasoning, therefore, novels about the Rosenberg case published during period (1)—that is, before the end of the Cold War—would have aged poorly, because they were working with a partial and lopsided version of the facts. They would have swallowed the line that the Rosenbergs were innocent and framed, simply because they didn't know the full story. 

But actually going back and reading these novels suggests another possibility. I have remarked before on this with respect to Robert Coover's The Public Burning. It's only in the past week, however, that I've read the other great Rosenberg novel of the '70s—E.L. Doctorow's 1971 classic The Book of Daniel. Both were written in era (1). But we find that, despite that, neither's view of the case is obsolete. 

After all, if there's anything that the history of the American justice system should teach us, it's that people can be wronged without being innocent. Even if people were guilty of an offense for which they were convicted—or of one they weren't—that doesn't mean there were not violations of due process in the manner in which the government arrived at their guilt. 

Nor does it mean that they couldn't have been used nonetheless as an involuntary sacrifice—a scapegoat on which the nation could vent its fury for the sins of others, or for problems much larger than themselves. This, at last, is where Coover and Doctorow both seem to land. Innocent or not, the Rosenbergs were still victims of a "public burning." 

This shouldn't be hard for us to believe. After all, the U.S. government in our own recent past went through another flap of unconfirmed spy sightings, in which numerous people—some innocent, but some guilty as charged—were arrested and made to stand in as sacrificial representations of something larger than themselves. I refer to the government's so-called "China Initiative." 

This Trump-era prosecutorial effort—which continued through the first year of the Biden administration, before finally being shuttered as a wasteful program that was needlessly stigmatizing and over-broad in the way it was framed—was intended as a response to alleged Chinese espionage and intellectual property theft occurring in the U.S. scientific and academic research communities. 

I can easily believe that this is a real problem. It's hard to doubt that the PRC—like other adversarial foreign powers, and as the U.S. government does with its own adversaries abroad—is working at any given time to infiltrate a variety of U.S. institutions. The government has every right to try to prevent this, just as they had during the early Cold War to investigate the leaking of atomic secrets to the Soviets. 

But what happens when federal investigators—knowing that this is a real problem—can't find the culprits responsible for it? Or when they find a few, but not enough to justify the far-reaching tax-funded program set up to root them out? Here they are with a brand new "China Initiative" in capital letters, and they aren't managing to detect nearly enough real high-profile cases of espionage or IP theft—what do they do then? 

What seems to happen is that they fudge it. They inflate their own statistics. In some cases, this takes the form of persecuting innocent people. Such was the case with MIT scientist Gang Chen, for instance, against whom the U.S. Attorney's Office eventually withdrew their case (though not soon enough to prevent the damage to his life and reputation), acknowledging that it had been an instance of prosecutorial overreach. 

As we saw with the Rosenbergs above, however, it is not only the innocent who can be made to serve as public sacrifices and scapegoats. Another federal government tactic for cooking their books and justifying the investment of taxpayer resources in this program was to indict people on charges wholly unrelated to espionage or the sharing of trade secrets, but to lump them in under the heading of the "China Initiative" regardless, because they happened to have some other nexus to China and the scientific community. 

Take for instance the prosecution and ultimate conviction of Charles Lieber, a Harvard scientist who chaired the university's chemistry department and was widely seen as a potential nominee for the Nobel Prize. Lieber was found guilty of failing to report certain facts about his income from foreign sources and ties to the Wuhan Institute of Technology. And he may well have done those things. But are these crimes that would ordinarily be prosecuted at all? 

Notice too what didn't show up in Lieber's indictment: he wasn't accused or convicted of espionage or sharing confidential information with the PRC government. He was found guilty of a tax violation. But the government relies on a series of associative links—a collective aura of suspicion, tinged of course with xenophobia, racism, and classic anti-intellectualism, around the ideas of China, Wuhan (coronavirus!), and scientists to notch Lieber's conviction as a win for its "China Initiative."

Nor was Lieber's case unique in this regard. In a comprehensive review of the initiative published in September 2021, Margaret K. Lewis shows how a program ostensibly designed—and billed to the public—as an investigation into PRC state infiltration of U.S. institutions, evolved through its own internal logic into a sweeping dragnet for unrelated crimes that happened to have some connection to China and scientific or technological research. 

As she reviews the convictions piled together under the "China Initiative" heading, an appalling number turn out to have nothing at all to do with the specific national security concerns that allegedly justified creating the program in the first place. It would seem that when the FBI cannot find the culprits it seeks, it finds it necessary to invent them. 

Unfortunately, this is all too par for the course with federal prosecutions. In Tim Weiner's telling, when the FBI went out to find and disrupt potential domestic terror cells in the wake of 9/11, for example, a vast percentage of their arrests were prompted by sting operations. Undercover FBI agents would egg on strangers to plot terrorist acts and then arrest them before they could happen. (The same issue of potential FBI entrapment has dogged more recent prosecutions of domestic terror plots as well, such as the alleged kidnapping conspiracy targeting Michigan Governor Gretchen Whitmer.)

The people ultimately convicted through these post-9/11 operations may well have been guilty of agreeing to conspire and go along with such a plot. But that doesn't mean they were people who ever would have carried out terrorist attacks if left to their own devices. 

And if they wouldn't have committed crimes were it not for the sting operation itself, then the FBI's efforts could hardly be said to have made us any safer. And if the FBI wasn't finding terrorists, but instead inspiring previously-innocent people to terrorist acts in order to prosecute them, then—to quote Sir Thomas More—"what else is to be concluded from this but that you first make criminals and then punish them?"

So it is, in a different sense, with the China Initiative. The U.S. government needed to find scientist-spies with Chinese connections in order to justify the program itself. And when it couldn't find enough of them, it started looking simply for scientists who had something to do with China and who were vulnerable to prosecution on unrelated grounds. 

There's a scene in Doctorow's The Book of Daniel when the Julius Rosenberg character (they are called "the Isaacsons" in the novel) is trying to explain to his son why the FBI has come to their house. "If they didn't arrest people," he offers in explanation, "there would be nothing for them to do. So they decide someone does something he shouldn't and they arrest him."

Unfortunately, it seems that this analysis of how and why the federal government undertakes its investigations is not entirely wide of the mark—even today. 

But the Rosenbergs weren't innocent, you may say. They weren't just picked up for no good reason—right? True, perhaps (at least in Julius's case), but as I say above, that doesn't mean they weren't still tried and executed in such a gruesome manner for reasons other than their personal guilt. That doesn't mean they weren't still made to stand in for some larger purpose—to "send a message" to others or to "make an example" of them—to serve, in short, as victims in a public sacrifice. 

After all, as both Coover's and Doctorow's novels evoke vividly, the Rosenberg trial took place in an atmosphere of national humiliation and terror. The U.S. government had recently lost its privileged position as the world's only holder of atomic weapons, then as its only possessor of the H-bomb. It was felt that someone needed to suffer for this. Someone needed to be found against whom the United States could vent its towering wrath—who could be punished in exemplary fashion so as to reestablish the nation's might and cure the affront against its dignity. 

And in pursuit of this overriding psychological need—the same that perhaps underlies every witch hunt—many norms of due process and fair treatment were cast aside. 

Unfortunately, the due process failures that both Coover and Doctorow note in the Rosenberg trial are not relics of the past either. They are still very much routine parts of our federal prosecutions: the use of "conspiracy" as a catch-all charge to prosecute people whom the government is unable to connect directly to any criminal act, the use of indictments and the threat of stiffer sentences in order to try to coerce plea deals, confessions, or witness cooperation, thereby inverting the proper order of justice (as Paul Isaacson (read Julius Rosenberg) notes in dismay in Doctorow's treatment: "he punishes us with our own trial").

It may be the case as well (and Doctorow's novel explores this aspect of it too) that the Rosenbergs were treated as a sacrifice no less by the Old Left, which—in Doctorow's telling—at first failed to assist them so as not to increase the heat on the rest of the Communist Party, and which subsequently found in the tale of their martyrdom a salient piece of propaganda. 

There may have been hypocrisy in the hearts of the hardcore Stalinists who wept in 1953 over the Rosenbergs yet were silent over the anti-Semitic persecutions that Stalin was committing at the very same time. One may wonder why Picasso and Du Bois were penning visual or written tributes to the Rosenbergs but not to the victims of the Soviet "doctor's plot" canard of the same era. 

All of that plus the Rosenbergs' guilt can be true, I say; and still the Rosenbergs were sacrificed in the electric chair not because of what they did, but because they were convenient stand-ins for the larger national panic about "atomic Communists," Red infiltration, and the fear that we were losing the Cold War. 

That was the 1950s. Fast-forward to today, and can we detect a similar psychological mechanism at work? 

Certainly now, as then, we are living in a time of paranoia and national humiliation. We are in a new Cold War with both Russia and the People's Republic of China. We rightly suspect that both governments are spying on us. We have seen one engage in unprovoked aggression against its neighbor and fear the other might soon as well. We have lived for more than two years with a global pandemic first detected in Wuhan, China and that we associated with scientists (given that—however unintentionally—it could have first been released through a mistake in a lab—a possibility which, however much some have tried to discredit it, remains a live hypothesis to account for the pandemic's origins).  

Could it be that, in such a situation, there was a psychological sense that someone must be found to suffer for these events? A scapegoat must be rounded up who could be made to serve as a symbol for problems beyond their control? The paranoia and the sense of humiliation settled on the specter of scientists working in Wuhan passing secrets to the Chinese government. And if no one could be found who precisely fit that description, a compromise must be sought. The government settled for finding scientists with connections to China; whether they were actually spies or not, would they not make for the ideal stand-ins?

Of course, the problem with such public sacrifices is that even when the people concerned are actually guilty of some offense or other, that is not the offense for which they are ultimately punished. They are punished as representatives of larger forces. They are therefore treated as a means, rather than an end in themselves—the ultimate violation of human rights, according to the Kantian framework. 

It is this sense, then, in which the Rosenbergs were still wronged, even if they were guilty of espionage. It is this sense in which Charles Lieber was wronged, and many of the other people successfully prosecuted under the China Initiative were wronged, even if they in fact did the things they were accused of—even if they did in fact fail to disclose relevant information, whether through an oversight or deliberate omission. They are still being made to stand in the role of scapegoats. 

We may choose to see these wrongs as the exceptions. Due process didn't function as well as it should have; mistakes were made; the federal government overreached; the system presumed guilt when the whole point of a trial is to establish it—but that was because the national mood had gotten a bit off-keel. In more normal and rational times, these abuses would never have been allowed. 

But, the more times we see this happening in U.S. history—the more times we see the legal system fail to vindicate the rights of the individual in the face of collective paranoia and madness—Guantanamo Bay, where people are still being held without trial, or tried by military courts in which the executive branch serves as both judge and prosecutor; the fact that the Supreme Court failed to strike down Trump's "Muslim Ban," despite the overt discriminatory intent behind it; the way in which courts and the executive branch have colluded in recent years to gradually eliminate the right to seek asylum in the United States, even though it still theoretically exists on paper...

The more times we see the system fail to vindicate due process and the rights of the person—due to some overriding and "temporary" state of national emergency—the more we realize that the state of crisis is permanent. There is no "normal, rational" era with which to compare the present. 

Moreover, is it not precisely under conditions of crisis that due process matters the most? Surely it is those most stigmatized, most subject to the presumption of guilt and public opprobrium, whether because of their own presumed acts or because of some guilt by association, who most need an impartial legal system to vindicate their rights and permit them the chance to obtain justice. 

As Doctorow puts it, in one of the most haunting sentences in his book—summarizing a lesson of the Rosenberg trial that remains true always, whatever has been learned subsequently about their individual guilt or innocence: "if justice cannot be made to operate under the worst possible conditions of social hysteria, what does it matter how it operates at other times?"