Justice, Pollard, and the wrong reaction

Jonathan Jay Pollard finally is getting out of jail, and the news has brought great joy to Jewish communities worldwide.

When Pollard is released from federal custody, it will be exactly 30 years from the day he was arrested — November 21, 1985. It is only right that he be released; it is long overdue. It is wrong for us to celebrate it.

Equally wrong is to believe justice is finally being served. Justice, or what passes for it in the United States, was trampled on in the Pollard case. His release does not rectify that breach; it merely puts a spotlight on it.

Robert Frost once said, “A jury consists of 12 persons chosen to decide who has the better lawyer.” That, in essence, sums up our system of justice.

Synonyms for “justice” include such words as fairness, fair play, fair-mindedness, justness, equity, evenhandedness, impartiality, objectivity, neutrality, disinterestedness, honesty, righteousness, and morality.

None of those apply in our so-called justice system, which is more of a strategy game than a search for truth. Prosecutors and defense attorneys seek to have their cases placed on the dockets of judges “friendly” to the prosecution or defense. Each side, after all, wants to present its case to the jury, while limiting what the other side can present.

A defendant, for example, may have committed similar crimes in the past. Prosecutors want to paint the defendant as a serial offender. The defense objects because the defendant’s “prior bad acts” could prejudice the jury. Which lawyer wins the point depends on who is sitting on the bench, and which one of them makes the best argument.

Our courtrooms are not palaces of fairness and equity; they are forums for debate. Scoring debating points is more important than being impartial, evenhanded, and objective.

Then there is the question of resources. All too often, a defendant with limited resources will consider pleading guilty to a lesser charge, regardless of actual guilt, just to stop the financial blood-letting. A defendant with resources that can match the prosecution’s limitless funds stands a much better chance of remaining free.

That is our system of justice, and it is not “just” in any way.

In the Pollard case, even this twisted notion of justice was ignored. After many months of back-and-forth negotiations, the federal government and Pollard’s attorney agreed to a plea bargain, in which he would plead guilty to a single count of delivering classified material to a foreign government (Israel). At the time, the average prison term for that count, when the foreign government involved was an ally of the United States, was four years. In at least one case around that time, an accused spy was allowed to go free without prosecution.

The prosecution in Pollard’s case agreed to a short sentence, then used rhetorical trickery to shamelessly signal to the judge hearing the case that it preferred life imprisonment for Pollard. This is a sentence normally reserved for those who spied on the United States for an enemy state, not for someone who spied in the United States for an ally.

The excuse the prosecution gave for abandoning the plea deal at the very last moment is spurious at best. The agreement stipulated that Pollard could not grant interviews unless they were sanctioned by the Justice Department. Pollard, his prosecutors said, abrogated the agreement by granting two interviews to Wolf Blitzer, at the time the Jerusalem Post’s man in Washington. Pollard, however, was in a maximum-security facility, and the government controlled access to him. The only way Blitzer could have gotten in to interview Pollard was with the government’s permission.

There also is the ex parte affidavit submitted by Defense Secretary Caspar Weinberger at the judge’s request. The judge wanted to know just how much damage the government claimed Pollard’s spying for Israel had done. The defense had no way of refuting the charges in that still-secret affidavit, which clearly violated the right of a defendant to confront his accuser.

That Pollard is being released in November, then, assuming he is set free, is not a moment of justice triumphant, but merely a confirmation of justice denied.

That being said, Jews neither here nor in Israel have reason to celebrate Pollard’s release.

Pollard is no Jewish hero, and to paint him as one is to ignore facts that even he admits are true. He did not sell Israel information out of any love for the Jewish state, as he claims. He was in it for the money. His attempt to sell U.S. secrets to South Africa, which he admits, boldly testifies to his true motive. He had no religious, ethnic, or philosophical ties to South Africa. Money alone was his motive. We can only speculate whether Pollard would have approached other countries had he not been caught.

What Pollard did was a crime, period.

He also put Jews in government, and especially in the intelligence branches, at great risk. After all, in his interviews with Blitzer, Pollard claimed that he did what he did because he was a loyal Jew who was conscience-bound to pass on information Israel needed to survive.

Long before the two Blitzer interviews, the Reagan administration already let it be known that it took seriously the possibility that American Jews generally were loyal to Israel first and the United States second.

That message reared its ugly head just weeks after Pollard’s arrest, on December 16, when Vice President George H. W. Bush raised it in a speech to an audience at Yeshiva University. His statement that no one would even think of accusing American Jews of dual loyalty was seen as doing just that.

The American system of justice is broken, and needs to be fixed.

Pollard’s case exemplifies that. He did not deserve to be kept in jail for 30 years.

He also does not deserve to be treated as a Jewish hero.