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When Ruth Bader Ginsburg got it wrong on Pollard

Justice Ginsburg's ruling in an appeal against the spy's life sentence exacerbated existing divisions within the Jewish American community
LEFT: Jonathan Pollard speaks during an interview, Friday, May 15, 1998, at the Federal Correction Institution in Butner, N.C. (AP Photo/ Karl DeBlaker)
RIGHT: Supreme Court nominee Judge Ruth Bader Ginsburg prepares to testify in her confIrmation hearing at Capitol Hill on Tuesday, July 20, 1993 in Washington before the Judiciary Committee.(AP Photo/Doug Mills)
LEFT: Jonathan Pollard speaks during an interview, Friday, May 15, 1998, at the Federal Correction Institution in Butner, N.C. (AP Photo/ Karl DeBlaker) RIGHT: Supreme Court nominee Judge Ruth Bader Ginsburg prepares to testify in her confIrmation hearing at Capitol Hill on Tuesday, July 20, 1993 in Washington before the Judiciary Committee.(AP Photo/Doug Mills)

When President Clinton nominated Ruth Bader Ginsburg to the Supreme Court, he called her “the Thurgood Marshall of gender equality law.” President Trump, whom she disliked, described her as “an amazing woman who led an amazing life.” She was the first woman to receive tenure at Columbia Law School and the first Jewish woman to serve on the Supreme Court. Prime Minister Netanyahu eulogized her as “one of the great judicial leaders of our time … [s]he was proud of her Jewish heritage and the Jewish people will always be proud of her.” In a religious freedom case she sided, albeit unsuccessfully, with an Orthodox Jew who was prohibited from wearing a kippah while serving in the Air Force. But one of her judicial decisions, involving an appeal by another Jew, exacerbated a division within the Jewish community between those who openly objected to the defendant’s original sentence and those who remained conspicuously silent.

In 1983, acting on the instruction of President Reagan, Defense Secretary Caspar Weinberger, an Episcopalian whose paternal grandparents had left Judaism, signed a Memorandum of Understanding with Israel establishing strategic military and intelligence cooperation. Jonathan Pollard, a Jewish American analyst of Naval Intelligence, realized in 1984 that “sensitive information about terrorism, Syrian deployments and Iraqi weapons of mass destruction was being withheld from the materials provided to Israel.” He raised the issue with his superiors several times, to no avail. Convinced that the absence of these materials reflected Department of Defense policy, he offered his services to Israeli intelligence.

For eighteen months Pollard gave the Israelis classified information about every country from Morocco to Pakistan, including Syrian and Iraqi nuclear and biological research, Libyan air defense systems, Iranian radar stations and Soviet-built air-to-air missile systems, as well as satellite photos of PLO installations in Tunisia (bombed by the Israeli Air Force shortly afterwards). The CIA’s damage assessment, declassified twenty-five years later, did not claim that the intelligence provided by Pollard was transferred by Israel to another country. No American agent, soldier, official or civilian was harmed or compromised.

Pollard was called in for questioning by the FBI in late 1985. His main Israeli handler, later Minister Rafi Eitan, stated that he then gave him an agreed upon sign to execute a prearranged escape plan, but “Pollard wandered around for three days” and finally showed up (with his wife) at the Israeli embassy. “No ambassador would have given him diplomatic shelter. I immediately said – throw him out,” Eitan recounted, and the Pollards were arrested. 

Pollard agreed to plead guilty to “one count of conspiracy to deliver national defense information to a foreign government” (in this case, an allied country), waive his right to trial by jury (which saved the government time, money and the discussion of sensitive information), cooperate with damage assessment, submit to polygraph examinations and criminal interviews. In return, in addition to not charging him with other crimes and entering into a plea agreement with his wife (which would otherwise not have been offered), the prosecution made three crucial promises: (1) to bring to the Court’s attention the nature, extent and value of his cooperation and testimony, representing that it was of considerable value to the government’s investigation, damage assessment and enforcement of espionage laws, (2) to recommend “a substantial period of incarceration” (but not the maximum penalty of life imprisonment, the usual sentence for this offense being no more than 6-8 years and actual jail time averaging 2-4), and (3) to limit its allocution to “the facts and circumstances” of Pollard’s crimes.

The prosecution, nevertheless, submitted to the Court a classified and unchallengeable 46-page memorandum from Weinberger cataloguing the “substantial and irrevocable” damage inflicted. The day before sentencing it submitted his unclassified supplemental declaration asserting that even in a year in which several spies for the United States’ main adversaries had been apprehended, it was difficult to “conceive of greater harm to national security,” and that Pollard’s punishment “should reflect the perfidy of his actions [and] the magnitude of the treason committed.”

As pointed out by a non-Jew (Robert Blewett, who filed an amicus curiae in Pollard’s appeal), Weinberger’s “use of the word ‘perfidy’ suggest[ed] a conscious or subconscious acquiescence to discredited and recently excised church liturgy that spoke of ‘the perfidious Jew’ … an ugly stereotype drawn from medieval theological anti-Semitism.” Furthermore, the Constitution reads that “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It may carry the death penalty but clearly does not apply to non-enemies. The nation’s top national security official in effect suggested to the sentencing judge the government’s interest in seeing the maximum sentence imposed, in violation of the plea agreement.

Pollard was sentenced to life imprisonment – the same punishment as received by John Walker, Robert Hanssen and Aldrich Ames, who betrayed the US by selling top secrets to the Soviets, endangered US security and claimed the lives of many US agents. Mrs. Pollard was sentenced to five years, released on parole after three years and made aliyah. 

Mr. Pollard’s lawyer, unexplainably, did not appeal his conviction within the ten-day statutory limit. He later made an unsuccessful motion to have the sentence reduced and, again, did not appeal when the motion was denied. In 1990, having served the intervening time in prison, Pollard sought the Court’s approval to withdraw his guilty plea – something the district judge denied without holding a hearing.

In 1991, Pollard’s new attorneys appealed the disproportionate sentence to the DC Court of Appeals before judges Ruth Ginsburg, Laurence Silberman and Stephen Williams. The appeal was denied by a vote of 2 to 1.

Ginsburg and Silberman sided against Pollard in a highly technical and convoluted decision that mentioned “our dissenting colleague” five times, suggesting that the panel had debated intensely. While admitting that “[i]t does appear that the government was engaged in rather hard-nosed dealings,” the key point made by the majority was that Pollard had waited too long.

In his riveting dissent, Williams characterized the decision as a “fundamental miscarriage of justice.” He spoke to the heart of the issue – the breach of faith in the execution of the plea bargain: “The government complied in spirit with none of its promises; with the third, it complied in neither letter nor spirit.”

“Though … not wish[ing] to be too critical of the government,” Williams closed his opinion with “Macbeth’s curse against the witches whose promises – and their sophistical interpretations of them – [had] led him to doom: “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.” The contrast between the cold analysis of the judges that sided with the government and the hot dissent of the judge that sided with Pollard couldn’t have been more striking.

Mindful of Ginsburg’s appointment to the Supreme Court a year later, Pollard’s father wrote a bitter letter to the editor quoting a statement that he attributed to Professor Ruth Wisse: “Modern Jewish courtiers have made a specialty of sacrificing their fellow Jews for the sake of their own advancement or to win the approval of other people.”

The three judges went on to long illustrious careers on the bench. Williams died of COVID-19 in August. Ginsburg survived metastatic colon cancer but succumbed to pancreatic cancer on Rosh Hashanah eve. Silberman is currently a Senior Judge in the D.C. Court of Appeals. 

Weinberger was indicted on five felony charges related to the Iran-contra affair, including perjury and obstruction of Congress, but was pardoned by President Bush (Senior) before the trial. He omitted his involvement in the Pollard case from his memoirs. Questioned by a journalist about the omission, Weinberger nonchalantly responded, “because it was … a very minor matter … made far bigger than its actual importance.” Asked why so, he replied “I don’t know why – it just was.” 

As for Pollard, the Supreme Court refused to hear his case. All requests of clemency by Israeli prime ministers to different US presidents were denied. The only American to ever receive a life sentence for spying for an ally, he became eligible for parole and was released after thirty years, many of which he spent in solitary confinement. His parole conditions included not owning a smartphone, “unfettered monitoring and inspection” of his computers and those of any employer and a requirement to remain in the United States (and thus not make aliyah as he intended) for five years. These terms are due to expire next month but could be extended. Stay tuned.

About the Author
Julio Messer is a former president of American Friends of Likud.