Time to End a Long Outstanding Injustice

“The more alienating and noisome are Pollard’s tactics, the more believable it is that the legal establishment ran roughshod over Pollard’s constitutional rights – and in broad daylight with the world watching” [Edwin Black 2002, “Why Pollard spent 30 years in prison”]

To the credit of its Editor, Steve Linde, on January 28, 2019, The Jerusalem Report published a full disclosure on the most recent effort at seeking a humane pardon for Jonathon Pollard to facilitate his Aliyah to Israel. Entitled, “A Plea for Pollard” and authored by David Stern, it was originally published in Homodia and seeks a removal of all the harsh restrictions imposed on Jonathon Pollard by the US Justice Department, as of now, as an accompanying requirement.

The subject article details the comprehensive efforts through a massive support effort of rabbinical leaders, establishment political figures , and Jonathon’s two outstanding attorneys, which resulted in Pollard being granted parole in November, 2015. This despite the non-participation of Senator Chuck Schumer. Its success lies in the government’s official acknowledgement that no longer would the offensive words Jonathon “is likely to commit to commit further crimes if released on parole” apply.

However, what does prevail is described as tantamount to a form of house arrest for the balance of his life sentence – another 15 years. They are rather harsh, to say the least, including as they do wearing a GPS monitoring system which consists of a bulky non-removable transmitter installed on his wrist, and two box receivers that are plugged into outlets in his tiny Manhattan studio apartment, which he shares with his wife. Thus, his movements are constantly monitored.

The parole restrictions also include a “curfew”, placing him under house arrest between 7:00 p.m. and 7:a.m. while limiting his outdoor movements to specific parts of South Manhattan. They also prevent him from being gainfully employed, prohibit him from the free exercise of his religious rights as an observant Jew, and severely limit any possibility of his reintegrating into mainstream American society as a productive citizen.

On October 30,2015, Ynet Magazine published a piece, “A failed defense attorney, outrageous proceedings and a prisoner turned into a political bargaining chip ” by Ronen Bergman and Noam Barkan. The occasion followed a special and exclusive interview with Yedioth Ahronoth and Eliot Lauer, a renowned American lawyer, who had been representing Jonathon Pollard voluntarily for the past 15 years ;in which he analyzed the reasons for the long imprisonment. The timing was two weeks prior to Pollard’s release from the North Carolina prison. His abbreviated reasons:

[a] As regard’s Pollard’s meeting with Wolf Blitzer, the Jerusalem Post’s Washington correspondent, which the authorities alleged was not authorized, Lauer blamed the lawyer who represented Pollard in the first trial court, Richard Hibey, apparently a “very famous American attorney. He said, ” How can one make a serious claim that the interview with Blitzer was a breach of the agreement, when it’s clear that one cannot go to jail without governmental approval. Why did the lawyer not vehemently object to this false claim? After all, Pollard had every reason to believe that if Blitzer was meeting him in jail, in the presence of administration representatives, it has been approved.” In addition thereto, he ‘forgot’ to appeal the verdict on time.”

[b] “Hibey is a very talented and skilled lawyer. If you Google his name with the word ‘Palestine,’ you’ll find out that in at least one of the court cases in the United States involving Palestinian terrorists, he represented the terror organization. You can understand whatever you want from that.” While it is easy
easy to criticize a lawyer’s conduct in retrospect in any lost case,”—— but not to file one page of an appeal?! There is no excuse or reasonable explanation for that.”
[c]The second factor attacked by Lauer concerned the prosecution and intelligence community. “They went around their commitment not to demand life imprisonment in a sophisticated and smart manner. A day before the sentence, they submitted to the judge two memos from American Secretary of Defense Caspar Weinberger. One was a classified 46-page document, and the other a public four-page document, which was completely outrageous. In the open document, Weinberger wrote that Pollard had caused more damage to the United States than any other spy. ”

Lauer compares this with 3 other cases where American government officials had been spying for the Soviet Union and were sentenced to life in prison. He questions why in Pollard’s case, his actions were judged significantly more harshly. “And that was a blatant violation of the agreement.”

[d] The question was posed as to what contributed to the judge’s decision and the administration’s attitude towards Jonathon Pollard. This was during a period in a situation of extremely severe tensions with Israel .”One can only wonder whether because of Israel’s conduct, the administration saw a clear American interest in severely punishing Pollard in order to deter others.”

A year and a half had passed without discovery of any significant damage to the US had been caused by Pollard. What Jonathon determined was important to Israel in focusing on the Arabs. He did gather extensive information on Saddam Hussein’s chemical abilities, Syria’s military abilities, the location of Arafat’s headquarters in Tunisia, etc. None of this was fundamentally harmful to the United States’ national security. Even more so,” there is no real evidence that Pollard’s spying led to the exposure of sources or modus operandi.”

[e] Eliot Lauer notes that the CIA papers reveal a very different story from Pollard’s story about himself, mostly lies. “He contacted Israel not in order to receive money. The money arrived much later, when he was already in the midst of the affair. The sum he got was insignificant, and that cannot erase the fact that his initial motivation was to help Israel. It’s clear that what he did was wrong, foolish. It’s not something I would have done, and today’s Jonathan – with today’s maturity and outlook – knows he should have used other moves in order to make the decision makers in the United States give Israel the information without doing what he did. But to present him as a lightheaded person is simply untrue. ”

Lauer is emphatic that Pollard’s motivation was to assist Israel and not the pursuit of money. Only much later did he receive money and “The sum he got was insignificant.” However, his actions while being foolish were well intended. He panicked when he discovered that information promised by Henry Kissinger in 1974 was withheld consequent to Israel’s bombing of Iraqi reactor in 1981.Pollard acted emotionally when he observed what Saddam Hussein was doing.

[f] Elliot Lauer refutes outright the administration’s claim that Israel has given some of Pollard’s information to the Russians. It is, in fact, refuted by the Victim Impact Statement, prepared by the administration for the purpose of demonstrating the extent of the damage the defendant caused the victim. In this case, preparation was undertaken by the prosecution itself. Contrary to expectations it did not describe horrors or of a particularly evil nature. What it did convey was demoralization in the organization he worked in [the US Naval Intelligence Command] and anger among the Arabs, who thought the US had given Israel information about them without Israel giving anything in return.

[g] The fact that Jonathon’s first attorney did not challenge Weinberger’s statement and demand proof thereof was mind boggling to Lauer. Apparently, in law, this is an entitlement. Thus, since there was no appeal, it was perceived by the judge as fact. Accordingly, he sentenced Pollard to a heavy punishment. Lauer covers many other aspects of the case, beyond the scope of this paper.

The Times of Israel featured, “10 Injustices Pollard’s Release Will Never Fix” on August 9, 2015 by the famed Irwin Cotler, a former Minister of Justice and Attorney General of Canada, and Emeritus Professor of Law at McGill University. His introduction, ” The convicted spy was unfairly punished in a case built on a flawed legal foundation and sustained by lies.” The 10 quoted here in full because of both its scholarship and absolute importance.:

1. The life sentence was unprecedented.
Pollard’s sentence of life imprisonment in 1985 was then — and remains today — unprecedented, excessive, grossly disproportionate and unfair, and amounts to a denial of equality before the law. No other American who has pleaded guilty to spying for a US ally has ever been sentenced to life. In such cases, the usual sentence is no more than eight years, with actual time served averaging two to four years or less.

2.The plea bargain was breached.
Second, beyond being unjust in itself, the sentence breached the plea bargain according to which prosecutors had agreed not to seek life imprisonment in return for Pollard’s guilty plea, his co-operation with authorities, and the waiving of his right to trial by jury. The plea also saved the government the problems of conducting a trial involving highly sensitive information, and at which Pollard might well have been acquitted of the more serious charges. Indeed, Judge Stephen F. Williams of the US Court of Appeals for the D.C. Circuit later described this breach as a “complete and gross miscarriage of justice.”

3. Casper Weinberger’s secret declaration.
Pollard’s sentence was imposed as a result of the submission — after the plea bargain and again in violation of it — of a prejudicial, ex parte affidavit to the sentencing judge by then-Secretary of Defense Caspar Weinberger. Pollard never saw the Weinberger Declaration, nor was he able to challenge it. In his submission, Weinberger claimed that Pollard had compromised American national security, was guilty of “treason,” and should never be released. However, in a 2002 interview, Weinberger admitted that, in retrospect, the Pollard matter was “comparatively minor.” Nevertheless, the secret Weinberger Declaration has continued to underpin the falsity of the allegations against Pollard, and to undermine the validity of his case and defense, whether in seeking appellate review, or clemency or parole.

4.Weinberger hated Israel.
Senior US officials who served with Weinberger have since accused him of harboring an intense bias against Israel that unjustly impacted Pollard’s punishment and sentence. For example, Robert C. “Bud” McFarlane, who served as US National Security Advisor in the Reagan administration, and worked closely with Secretary Weinberger, wrote in 2012 that “the affidavit filed by former Secretary of Defense Caspar Weinberger was surely inspired in large part by his deeply held animus toward the State of Israel.” Dr. Lawrence J. Korb, who served as Assistant Secretary of Defense under Weinberger during the period that included Pollard’s arrest, wrote in 2010 that “I can say with confidence that the severity of Pollard’s sentence is the result of an almost visceral dislike of Israel … on the part of my boss at the time, Secretary of Defense Casper Weinberger.”

5.The charge was never treason ——-
Pollard has repeatedly and misleadingly been accused of treason — by the media, as well as by officials of the departments of Defense, State, and Justice — despite never having been charged with it, and often by reliance on the secret — and discredited — Weinberger declaration. Indeed, as recently as Pollard’s parole hearing in July 2014, the prosecution falsely asserted — and the Parole Commission accepted without review — that Pollard’s actions were “the greatest compromise of US security to that date.”

6. and Eastern Europe intel was never breached.
False accusations have likewise been made by US government agencies that Pollard compromised intelligence operations in Eastern Europe and was consequently implicated in the deaths of American informants. Yet, these accusations were never part of his indictment, and no evidence for them has ever been adduced. In fact, the architect of these treasonable acts, and the source of the disinformation against Pollard, was none other than senior CIA official Aldrich Ames, who pleaded guilty to them in 1994.

7.The intel Pollard delivered was limited.
The declassification in 2012 of a 1987 CIA damage assessment concerning Pollard confirms, in the words of Lawrence Korb, that “Pollard did not divulge the most sensitive US national security programs” and “provided intelligence only on the Soviet Union’s activities in the Middle East.” (The document also reveals that, whereas the sentencing judge overturned the plea agreement because Pollard had spoken to the media in supposed violation of the agreement’s terms, the interview had in fact been authorized by the government.)

8.He has ineffectual counsel.
Pollard was deprived early on of his right to effective legal counsel, as his attorney at the time of sentencing neglected to file a notice of intent to appeal following the prejudicial sentencing hearing. Pollard was therefore precluded from appealing his life sentence.

9.Top officials support his release.
Virtually everyone who held a senior government position and dealt with the ramifications of what Pollard did at the time supports his release. They include former Secretary of State George Shultz, FBI director and subsequent CIA director William Webster, and respective chairmen of the senate intelligence and house intelligence committees, David Durenberger and Lee Hamilton. Indeed, Sen. Durenberger has expressed his “surprise at the sentence given Jonathan Pollard compared to others” and argued that “the harshness of Pollard’s sentence … was uncalled-for.”

10.A deeply flawed parole process.
Finally, many of these injustices were compounded at the time of Pollard’s unsuccessful 2014 parole application. In particular, secret evidence from the Weinberger affidavit was invoked by the prosecution and relied upon by the Parole Commission, despite the fact that neither Pollard’s attorneys — who had security clearance — nor the members of the Commission themselves were permitted to view the document on security grounds. In the words of Pollard’s lawyers, the 2014 hearing was “a disingenuous and deeply flawed parole process that reached an unsound conclusion based on discredited 28-year old statements buried in a secret file, and in complete disregard of compelling contrary evidence.”

Irwin Cotler’s conclusion speaks volumes. It reminds us “that Pollard fully honored the very plea agreement that the government violated; he fully cooperated with authorities; he has expressed remorse for his actions; he has been a model prisoner for 30 years; he is now aging and in deteriorating health; and most egregiously, he has repeatedly been falsely accused of a crime he did not commit — treason — and unjustly sentenced to life in prison for the crime he did commit.”
Harvard law Professor Alan Dershowitz has frequently stated that it is “dirty pool” for the government to make charges and then to justify their actions on the basis of security. “If charges cannot be substantiated publicly, then they should not be made publicly.”

One has to question why upon the discovery that it was Aldrich Ames who was responsible for the deaths of at least a dozen US operatives in the Soviet Union and not Jonathan Pollard, the accusion of treason was not absolutely eliminated, thus reflecting on a vast improvement on his release. So much for proclaimed “democracy”!

At the end of the day, with the current effort to gain Pollard a true and effective pardon, one hopes that for once Senator Shumer does the right thing.

About the Author
Alex Rose was born in South Africa in 1935 and lived there until departing for the US in 1977 where he spent 26 years. He is an engineering consultant. For 18 years he was employed by Westinghouse until age 60 whereupon he became self-employed. He was also formerly on the Executive of Americans for a Safe Israel and a founding member of CAMERA, New York (Committee for Accuracy in Middle East Reporting in America and today one of the largest media monitoring organizations concerned with accuracy and balanced reporting on Israel). In 2003 he and his wife made Aliyah to Israel and presently reside in Ashkelon.
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