Unshakable Jonathan Pollard’s Denial of Due Process

“Men occasional stumble over the truth, but most of them pick themselves up and hurry of as if nothing ever happened.” [Winston S.Churchill]

May 24, 2017 was yet another disappointing day in the life of Jonathan Pollard. Despite the mastery of his lawyer Eliot Lauer, he failed to win a relaxation of conditions requiring him to submit to a curfew, monitoring of his workplace computer and his whereabouts. In this, the US Court of Appeals for the Second Circuit in Manhattan said the US Parole Commission acted within its discretion.

One has to question why there was no delay in rendering the decision. A group of Pollard supporters, the Free Pollard Campaign opined that it was deliberately construed to coincide with President Trump’s departure from Israel and Yom Yerushalyim. It was suggestive of the new US Administration’s continuing tolerance of the anti-Israel agenda by those elements in the American and Intelligence communities hostile to the special US-Israel relationship.

What it brings to mind was Churchill’s difficulty with his militia.”As Churchill recognized, one of the greatest problems in quelling the Arab riots while going ahead with a pro-Zionist program was that the British forces upon whom he relied were unwilling to enforce his policy.” He gloomily estimated that 90 % of the British army in Palestine was arrayed against the Balfour Declaration policy.

The atrocious and stringent directives imposed on Jonathan Pollard as a consequence of the rejection of his appeal, while reported on in the media does not in any way adequately reflect on the failings of what is commonly referred to as “democracy”. When one considers the language expressed, there is little evidence of its impact on the public domain.

“Circuit Judge Reena Raggi seemed to side with the government, saying parole conditions only had to be rational.” Rational? How rational is a directive which demands a curfew that puts Pollard under house arrest between 7:00 p.m. and 7:00 a.m.; and only permits him to travel in parts of Manhattan—and even prohibits him visiting nearby Brooklyn. You would think that the subject judges would welcome him calling on Neturei Karta!

What harm can occur in the event that he was spared unfettered monitoring and inspection of his computers, in addition to those of any employer who would elect to hire him. Indeed, such restrictions make the opportunity for employment unimaginable. In fact, one observer stated that if the US Court of Appeal can allow a lawful request by two Congressman, for permission to be granted to allow Pollard to leave for Israel, to and to reject it on the grounds that he is a flight risk, there is something very wrong with our justice system.

Even more so, one can readily acknowledge that with the skewed judgments rendered, our courts presently provide more protection for Moslems than for a Jew. Are not all Jews, other than those recognized as subscribers to the “perfectly correct” adherents, vulnerable? All this to think that at its origin, Jonathan Pollard pleaded guilty in 1986 to conspiracy to commit espionage in connection with providing Israeli contacts with hundreds of classified documents.
Of course who could forget the plea bargain? Elliot Goldenberg provides a full account of this distasteful event in his, “The spy who knew too much” [The government plot to silence Jonathan Pollard].The key individual in the dreaded proceedings was Defense Secretary Weinberger. To Angelo M. Codevilla, a former intelligence officer who was once on the staff of the Senate Select Committee on Intelligence, and a fellow of the Hoover Institute of Stanford University, ” Weinberg erroneously saw the major problem in the ME as being the State of Israel and its stubborn leaders.” Lt. Col. North echoed the same thoughts.

In a manner reminiscent of a skunk, Weinberger sent a secret memo, the infamous “Weinberger Memo” to District Court Judge Aubrey Robinson prior to sentencing. As is well known , its secrecy led Harvard Law Professor, Alan Dershowitz to astutely remark, “In a democracy, it is dirty pool for the government to make charges and hide behind the curtain of national security when asked to substantiate them.”

It is interesting to note that of the justices who presided, the singular gentile, Justice Stephan Williams voted in favor of Pollard’s appeal. His words,”—–the government’s breach of the plea agreement was a fundamental miscarriage of justice—-Pollard’s sentence should be vacated and the case remanded for re-sentencing—-the fault here rests upon the prosecutor, not on the sentencing judge——The case does remind me of Macbeth’s curse against the witches—whose promises—led him to doom.” Quoting Shakespeare, “And be these juggling fiends no more believ’d; that palter with us in a double sense; that keep the word of promise to our ear—-And break it to our hope.”
Judge Williams’ noteworthy dissent extends to a paragraph by paragraph critique of the prosecutors argument violating the spirit and even on one key point, the letter of the deal under which he got Pollard to give up his right to a trial and to plead guilty. An editorial in the Forward of March 27, 1992 covers the subject matter of “These Juggling Fiends” in full.

As for the Jewish justices, Bader Ginsburg and Laurence Silberman, their behavior conformed to Kenneth Levin’s Oslo Syndrome, one whereby Jews tend to believe that they are responsible for the misdeeds of their enemies.That they could have ruled against Pollard on technical grounds such as his appeal coming too late to deny a sentencing hearing, raises several questions. Should a client be punished because of the incompetence of his attorney? Should a nitpicking law of this type even exist?

Interestingly, it had been conjectured that Silberman, the jurist who seemed most likely to rule in Pollard’s favor, by virtue of the hard questions he raised during the September hearing [prior to his having an apparent change of heart ] – was indirectly linked to the 1980 arms-for-hostages scandal.

Jonathan Pollard was arrested on November 21, 1985 and sentenced on March 4, 1987. His incarceration commenced in 1986 where he was held at the FCC Petersburg. Upon sentencing, Pollard was moved to a mental hospital in Springfield, Missouri for health evaluation in June 1988; and then to the Federal Maximum Security prison in Marion, Illinois. In 1993, he was moved to FCI Butler Federal Correction Complex in North Carolina [Butler Medium].

During the 7 years Pollard spent in at the Federal Maximum Security prison, he was visited by Attorney Alan Dershowitz in 1988. As an indication of what this facility represented, Dershowitz quoted the famous NY Times reporter, A.M.Rosenthal. “Men are not sent to Marion for crimes committed in the outside , but for crimes committed in other prisons, escapes or assaults or murders of other prisoners or guards.

“The mission is not to rehabilitate, but to secure and control the prisoners. Meals are delivered through the bars—If inmates have to be moved anywhere, they walk guarded and handcuffed through empty corridors.”

Attorney David Kirshenbaum visited Jonathan Pollard in Marion on May 2 and November, 1991. The purpose of the second visit concerned the preparation of an amicus brief on behalf of Pollard. Apparently, he was “less jarred” by the “fortress-like structure” at Marion with its frightening and imposing watchtowers and series of iron gates and doors on the 2nd visit. However, Pollard was still being held underground in the eight-cell ward known as the K-unit, the most tightly guarded unit in Marion Prison; and the kind of place in which Hannibal Lector of “The Silence of the Lambs” would have unquestionably felt right at home.

“I honestly believe that had the major Jewish organizations followed their member’s wishes and strongly supported Pollard’s legitimate quest for equal justice, he would-be a free man now.” These are the words of Harvard Law Professor Alan Dershowitz, dating back to 1993.

In a 2004 interview, Weinberger himself admitted that, in retrospect, the Pollard matter was “comparatively minor” and it is not even referenced in his memoirs! Does this mean that he acknowledged that his documented position submitted to Judge Robinson consisted of a pack of lies?

As recently as May 29, 2017, Hamodia [NY] published an interesting Op-Ed entitled, “Asymmetrical Justice: A Tale of Two Courts” by Avraham Weissman.

On the Thursday prior to May 29, the US Court of Appeals for the Fourth Circuit issued a sharply worded decision upholding a lower court’s injunction against President Trump’s temporary travel ban for 6 Muslim majority nations. A day before, the Virginia-based Appeals Court released its ruling through another Appeals Court consisting of 3 judges of the NY based Second Circuit who issued a written ruling rejecting Jonathan Pollard’s appeal against a lower-court judge’s refusal of his habeas corpus petition seeking the removal of broad and sever parole restrictions.

Citing the differences, on the one hand Pollard is an American citizen who has never been charged with seeking to harm the interests of the US – he pled guilty to passing classified information to Israel, an ally. On the other hand, the travelban, according to the Trump administration, is intended to prevent foreign terrorists from entering the US.

Now considering the underpinning of the legal arguments applicable to the two cases, there is a similarity. It can best be expressed through questions. Should the US government be given a blank check when it comes to “national security?” Or should such claims undergo at the very least a minimal amount of judicial review.? What was being compared is the conclusion reached by the 147 page majority opinion supported by the10 judges of the Fourth Circuit Court with that of the 3 who dissented and suggested that few would disagree with 4 paragraphs, found on page 73 of the ruling.

Bottom line. The government’s “authority and expertise in [national security and foreign relations] matters, do not automatically trump the Court’s own obligation to secure the protection that the Constitution grants to individuals—“. A claim of harm to national security must still outweigh the competing claim of injury.

Here and elsewhere, the Government would have us end our enquiry without scrutinizing—the Government’s asserted interests, but “—unconditional deference to a government’s agent’s invocation of “emergency”—has a lamentable place in our history”—and is incompatible with our duty to evaluate the evidence before us.

Hence, one begs to ask, why is it that what was so clearly apparent to the Fourth Circuit Court, generally considered to be a far more conservative one, totally eluded their liberal colleagues in NY?

Too often, the government has been permitted to use ‘secret” documents which it refuses to even show a judge, and to hide behind unchecked and unsubstantiated claims of “”national security” – claims that fly in the face of basic logic – to keep Jonathan Pollard in prison for 3 decades and continue to do all it can to make his life miserable after being released on parole.

In the case of the Fourth Circuit Court, declarations by several former officials who previously served in the White House, State Department, DHS and CIA stating that there “is no national security purpose for a total ban on entry for aliens from the [designated countries],” but in the Pollard case, the Second Circuit Court refused to consider the declarations of former US National Security Advisor Robert McFarlane and former Senate Intelligence Committee member Dennis DeConcini, who have personal knowledge of the Pollard case, and who each state that whatever information Mr. Pollard might still recall after 30 years is “of no value to anyone today.”

How should one understand all this? Is it because it is more palatable to fight for the rights of foreign Muslims than for an American Jew? Or is it due to the paltry support Jonathan Pollard received from the Jewish community in the early days?

Since the time of President Jimmy Carter, the US has been obsessed with human rights, at times steeped in hypocrisy. However, one cannot find any evidence of its presence in the entire chronology of events which beset Pollard’s prison life. The cruel and unusual punishment to which Pollard was subjected to, which includes electrocution with a cattle prod, chemicals sprayed in his cell, and repeatedly chained to an iron chair bolted to the floor of a shower stall, and blasted with torrents of ice water for long periods of time is fully described in Aaron Klein’s, “Pollard: I was tortured in US Prisons” [WND May 8, 2005].

Not all history is outdated. John Loftus [ex lawyer in the US Justice Department], writing on May 31, 2003, “The Truth About Jonathan Pollard” [Aish.com] informs us that “Pollard’s life sentence was based on a humongous “Whopper of a lie”. He not only points to the error in misjudging Pollard for the crimes committed by Aldrich Ames, but the refusal to exonerate Pollard despite knowledge of the truth.

For the first time, Jonathan Pollard has the probability of enjoying due process through President Trump, given Trump’s contempt for both the FBI and the CIA.

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.