When Politics Trumps Justice

Meant to send a message during a time of war, the case of Omar Khadr - like that of the Rosenbergs 50 years before - was a trial about politics first and foremost.

In the past few weeks, two events have monopolized my intellectual reflection: first, the conviction and sentencing hearing of Omar Khadr after he entered a guilty plea, and second, the visit to Toronto of Robert Meeropol, the youngest son of Julius and Ethel Rosenberg. Two disparate cases, but with more in common than first glance might suggest.

Julius and Ethel Rosenberg were convicted of conspiracy to commit espionage in 1951, after being accused of giving the USSR the “secret of the atomic bomb.” They were executed in 1953, despite an international clemency campaign and nine separate efforts to get the Supreme Court to review the merits of the case. They always maintained their innocence, and for decades it was an article of faith for the Left.

In 1995, after the dust of the Cold War’s collapse had settled, the National Security Agency declassified and released decrypted Soviet cable messages that pointed to Julius’ involvement as an agent, though certainly not as the person responsible for giving the USSR atomic “secrets.”

In 2001, on a widely-publicized episode of 60 Minutes, Ethel’s brother and chief prosecution witness David Greenglass admitted to perjury, explaining that he had fabricated the slim evidence against her. Now, Walter Schneir’s posthumously published and just-released book Final Verdict delivers new evidence that Greenglass dramatically exaggerated Julius’ role in espionage in order to cover up his and his wife Ruth’s involvement in stealing secrets from Los Alamos.

Behind the entire story is a sad and sordid tale of family betrayal set against the backdrop of the “hot” and early phase of the Cold War. As Meeropol said at the University of Toronto: “My parents’ case was bracketed by the Korean War and cannot be understood outside of that context.” Indeed, the Red-baiting era of McCarthyism had created a climate of considerable domestic fear, which the media magnified exponentially. If an unassuming, working-class Jewish couple from New York’s Lower East Side could be “atomic spies,” was anybody really safe?

The family betrayal in the case of Omar Khadr is quite different – more a story of parental irresponsibility, as Khadr was recruited into the family business of jihad. First taken to Al Qaeda training camps by his father at the age of 11, Khadr was 15 when he committed the crime for which a military commission sentenced him to 40 years – the killing of U.S. Army Sgt. Christopher Speer.

Khadr was seriously wounded during the firefight and eventually ended up as an alleged “enemy combatant” in the U.S. military prison in Guantanamo Bay, Cuba. There he languished for eight years, his status in limbo as American authorities would neither consider him a child soldier nor a youth criminal justice offender – the two statuses most appropriate under domestic or international law.

Meanwhile, the Canadian government, unlike all other western governments that successfully petitioned to have their nationals in Gitmo returned home, not only refused to act, but as the Supreme Court reminded us last year, was complicit in the denial of his Charter rights by participating in so-called “enhanced interrogation” techniques. Much like that of Julius and Ethel Rosenberg, his factual versus his legal guilt will continue to be debated because, although he entered into a plea bargain in exchange for the opportunity to serve most of a much shorter sentence in Canada, his lawyers have already cast doubt on the actual veracity of his guilt.

But the similarities between the two cases don’t stop there. In both, the U.S. sought to condense an entire international conflict into a compelling courtroom narrative wherein much responsibility was imposed on the defendants. Judge Irving Kaufman famously stated during his sentencing remarks that he held the Rosenbergs accountable for “putting into the hands of the Russians the A-bomb years before our best scientists predicted Russia would perfect [it]” and that this caused 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.” Khadr’s jury sentence of 40 years appears grossly disproportionate; reasons were not given, but lesser culpability in light of his age and the time he had already served were clearly not a consideration.

In both cases, the protagonists were cast into roles that reinforced public fear regarding the nature of a global threat. The Rosenbergs symbolized the insidious and dangerous threat of domestic communism; Khadr raises the spectre of “homegrown” terrorism. And for many, the outcomes continue to illustrate what was wrong about the ways in which the U.S. chose to approach the Cold War and the War on Terror. During the Cold War, the Rosenbergs were the only Americans to be sentenced to death for political reasons. During Operation Enduring Freedom in Afghanistan, Omar Khadr has so far been the only person tried and found guilty of killing an American soldier, despite the fact that more than 1,000 Americans have died in the conflict.

Finally, there is the lingering issue of secret evidence. Because so much material on the Rosenberg case is now available (although much more could be released from the Russian side, as well as the remaining American Grand Jury testimony), we now know that Judge Irving Kaufman violated his judicial independence with ex parte communication with the Department of Justice, and was told of classified evidence that implicated the Rosenbergs – a kind of 1950s version of a “slam dunk” discussion behind closed doors.

The controversy over secret evidence has lingered throughout all the legal proceedings arising from Gitmo, where detainees and their counsel have repeatedly been denied access to all the evidence used against them. We already know that in any event, much of the evidence is tainted because it was extracted by means inconsistent with the Convention Against Torture.

American justice has been marred in both the Cold War and the War on Terror by a combination of politically motivated prosecutions with larger didactic purposes, the over-reliance on conspiracy charges to lower the burden of proof, and the relaxation of the rules of evidence law. In both eras, the refrain of national security has been invoked. But it is at times of national insecurity that legal safeguards are needed the most, and it is to the most politically unpopular defendants already demonized by the media and in the court of public opinion that the most stringent due-process requirements should be applied. To do otherwise, as both the cases of Julius and Ethel Rosenberg and of Omar Khadr attest, is to politicize justice and abuse the rule of law.

Also by this author: Lethal and Legal: Rifles and Cars

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The Air India Tragedy: Finally Canada Cares