The Legal Blasphemy that is the Pollard Case

Unjustly, Jonathan Pollard languishes in jail. In response, we have pressured and educated about his predicament. We have garnered support for his cause from academics, clergy, and other influential people. Israeli prime ministers have requested his release from top U.S. officials, including the president. Despite the inertia for his release and the clear miscarriage of justice, Pollard remains behind bars.

First, the facts in brief. The 1970s and 80s saw heightened spying activity, especially between the U.S. and Russia. A number of events occurred tipping U.S. intelligence that the Russians knew about U.S. spying and counterintelligence. Examples include twenty-two Soviet double-agents recalled to Russia and subsequently sent to the gulag; the U.S. built a new Russian embassy on top of a hill with an underground bunker that the Russians clearly knew about; the Russians knew about electronic sensors upon Russian missiles that were shipped through Siberia, to name a few. As a result, U.S. intelligence was looking for a traitor. Who was it?

Pollard, a navy intelligence officer, had access to classified information. President Reagan signed an executive order directing U.S. intelligence to share certain security information with Israel. U.S. intelligence ignored the order. Pollard, seeking money and trying to correct a wrong, passed on some of that information to Israel. After surveillance of Pollard, including a video of him destroying paper containing classified information, the government arrested Pollard and charged him with giving over information to an ally, a crime typically carrying a 2-4 year sentence. Note that prosecutors never charged Pollard with treason charge, which typically carries a life sentence. Pollard, assuming a short sentence based on the charge levied against him, pleaded guilty.

In the meantime, U.S. intelligence believed that they had their man. The Israelis exposed Lithuanian-born Shabtai Kalmanovich as a Russian spy. Kalmanovich worked as an aide for labor party Knesset Members, while simultaneously providing information to the Russians. U.S. intelligence opined that Pollard handed information to the Israelis and then Kalmanovich gave that information to the Russians. Hence Pollard was the traceable source to Russian knowledge of sensitive information, including double agents.

This theory is flawed. There was no connection between Pollard’s information and Kalmanovich’s information. Furthermore, Pollard only had access to classified information, not the highly classified information handed to the Israelis. Regardless, Pollard took the fall for the massive intelligence breach, resulting in a life sentence and seven years of solitary confinement

Further revelations corroborated that Pollard had no connection to the Russians. The subsequent arrest of Aldrich Ames and Robert Hanssen, both spies with highly classified clearance, demonstrated that it was those two who handed highly sensitive information to the Russians. Ames in particular, who worked for the CIA’s soviet counterintelligence division, provided the Russians with information about the double agents. As such, the Pollard/Russian theory is clearly false.

Next, from a legal standpoint, Pollard’s long incarceration is inconsistent with accepted legal norms. Moreover, it has and continues to make a mockery of the U.S. legal system. A trial defendant is subject to the well-pleaded complaint. That is, a defendant defends himself and a judge issues a ruling strictly based on the contents of the complaint. Other matters not in the complaint are not contemplated, regardless of relevancy. Even if a judge reasonably believes that a defendant committed a crime not in the complaint the judge rules based on the content of the complaint. Judicial opinions, including those from the United States Supreme Court, are replete with references to ruling only based on what is before the court. Here, Pollard pleaded guilty to passing information to an ally, not treason. Therefore, based on ground legal principles, the military judge sentencing Pollard should have sentenced Pollard to a punishment commensurate with the charged crime, which would be 2-4 years. By applying an arbitrary standard the military judge undermined the U.S. legal system.

Yet Pollard remains in jail. Many have rallied for Pollard based on humanitarian or other goodwill purposes. Pollard critics point to his less than truthful disclosure of prior drug use and the bizarre circumstances surrounding his divorce. They also use former CIA Director George Tenet’s resignation threat upon a potential Pollard release in 1998 as proof that Pollard is properly incarcerated. All the above points are legally irrelevant. That bottom line is that Pollard pleaded guilty to passing over classified information to an ally, which carries a 2-4 year sentence.

In sum, the facts of the Pollard case demonstrate that Pollard did not commit treason. Moreover, it is legally heretical to ignore legal norms by ruling on an issue not before a court. Pollard’s plight is not just factually wrong; his plight makes a mockery of the U.S. legal system. Granting Pollard his freedom will go a long way in ending this legal blasphemy.

About the Author
Ari Mushell works in the banking industry.
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