Reprinted from The Jerusalem Post of January 8, 1999
President Bill Clinton is scheduled to conclude another review of the Jonathan Pollard case next week. The latest clemency review is the sop offered by Clinton after reneging on his unequivocal promise at Wye to release Pollard. No defender of Pollard has been heard on his behalf. His fate will again be decided on the basis of information supplied solely by those determined to see him die in jail.
Unlike Alfred Dreyfus, Pollard is not innocent. He committed a serious crime for which he has already served a longer sentence than anyone ever convicted of the same offense. The average prison term for spying for allies is two to four years. But just as the Dreyfus case was an indictment of French justice, so is the Pollard case a stark indictment of American justice.
Pollard was charged and pleaded guilty to one count of delivering defense information with intent to aid a foreign nation i.e., Israel, a staunch American ally. As in any espionage case, the US government was eager to avoid a trial and the inevitable exposure of intelligence secrets such a trial entails. And it was doubly eager in Pollard's case, because a trial would have revealed how the US had failed to fulfill its treaty obligations to supply intelligence data to Israel and the full extent of its tilt toward Iraq in the early '80s, which included countenancing Iraq's missile buildup and development of weapons of mass destruction.
Lest there be any doubt of the strength of Pollard's bargaining position, consider the case of Aldrich Ames. For large payments to support a lavish lifestyle, Ames exposed over 30 American agents to the Soviets, leading directly to their executions. He nevertheless secured in return for his plea bargain, assignment to a minimum security prison, where he has his own private room and TV, no work requirement, and access to an18hole golf course.
Meanwhile, Pollard shares a cell with four other inmates, works eight hours or more a day, and is denied kosher food. And that's a picnic after seven years in a hospital for the criminally insane and subsequently in isolation in America's toughest federal prison. In return for his plea bargain, Pollard received the maximum sentence under the statute in short, a "bargain" in which one side received absolutely nothing.
Government prosecutors made three promises to Pollard: that they would not ask for a life sentence, that they would inform the court of the great importance of his cooperation in the assessment of damage from his activities, and that they would limit their presentation to the court to the "facts and circumstances of the case." The prosecutors broke, in the words of Washington DC Circuit Court Judge Stephen Williams, every one of these promises in spirit and the third in letter as well.
MENTION OF Pollard's cooperation including nine months of interrogation and 52 polygraphs was tucked away in the middle of a section of the government's submission detailing why he should receive a substantial sentence. Far from limiting themselves to the "facts," the government prosecutors loaded their submission with the most conclusory allegations of Pollard's venality, addiction to a high lifestyle, arrogance, and deceitfulness allegations belied by the fact that Pollard initially volunteered his information to Israel and it was his handlers who insisted on relatively small payments.
Though he did not explicitly ask for a life sentence, the chief prosecutor later told reporters that he hoped Pollard "never sees the light of day again." And he acted accordingly. Most damaging, of course, was the last minute in camera submission of then defense secretary Caspar Weinberger. Pollard and his attorneys were never given a copy of the allegations presented to the sentencing judge by Weinberger, and were thus unable to rebut them. It is harder to imagine a greater affront to the due process right to confront one's accusers.
In the public part of Weinberger's submission, he labeled Pollard
a "traitor," a crime of with which he was not charged
and was not guilty. Weinberger told the judge that he could not
imagine a crime "more deserving of a severe punishment"
or which had done "greater harm to national security,"
all but demanding the maximum sentence. Jonathan Pollard was thus
sentenced for the crime of damaging the United States a crime
with which the government had explicitly refrained from charging
him. By implication, Israel was transformed into an enemy.
Compare the case of US Navy Cmdr. Michael Schwartz (not Jewish), who sold secrets to the Saudis. Schwartz's only punishment was a less than honorable discharge, and nary a word of criticism of the Saudis was heard.
Weinberger had good reason to be piqued with Pollard. He favored keeping Israel vulnerable, and Pollard reduced that vulnerability. But the claim that Pollard damaged US security interests will not bear scrutiny. Professor Angelo Codevilla, who as chief counsel to the Senate Intelligence Committee in 1985 had access to the full Pollard file, recently stated flatly that while Pollard subverted Washington's then proIraq and proArab policy, he barely affected intelligence operations: "No US communication intercept system was taken out of service or had its budget affected...; nor was any US agent 'forced out of the cold.'"
Clinton is fond of lecturing Israel on the importance of confidencebuilding measures. Israel herself could use some confidencebuilding measures now, especially when Pollard's chief persecutors seem to be the same CIA charged with policing the Wye Accords. In seeking those measures, let us recall as Jews and Israelis, the words of the Shulhan Aruch: "There is no greater mitzva than the redemption of captives."
(c) 1999 The Jerusalem Post
Jonathan Rosenblum is a biographer and contributing editor
to the 'Jewish Observer'.