The Betrayals of Jonathan Jay Pollard
Alan Dershowitz - Penthouse Magazine - June, 1994
President Bill Clinton's refusal to reduce Jonathan Jay Pollard's sentence of life imprisonment has once again sparked controversy over the manner in which the American who pleaded guilty for spying for Israel has been treated. Although friendly nations maintain the public pretense that they do not spy on one another, the secret reality is that the United States spies on every nation, even our closest allies. Our intelligence agencies employ spy satellites and electronic monitoring, as well as human spy networks throughout the world.
It should have come as no surprise, therefore, when Senator David Durenburger (R-Minn.) disclosed that in 1982 the Central Intelligence Agency recruited an Israeli officer to spy on Israeli military actions in Lebanon. What should have raised eyebrows, however, was the conclusion by Senator Durenberger, who had served as chairman of the Senate Intelligence Committee - that the C.I.A.'s willingness to spy on Israel had "changed the rules" of how they spy game was played between friendly nations.
What Durenberger may have been referring to is the unusual fact that the C.I.A.'s spy was not an American embassy official or businessman who had been sent to Israel to monitor Israeli actions - that sort of spying is always done - but an Israeli soldier who was apparently upset at his country's decision to invade Lebanon.
If the C.I.A.'s decision to accept espionage information from an Israeli solider constituted a change in the rules between the United States and Israel, it was not the only change. In February 1981, Bobby Ray Inman was appointed the No. 2 person at the C.I.A., and he also changed the rules about what kind of intelligence information the United States was willing to share - really
exchange - with its close ally in the Middle East.
When James Jesus Angleton had been the C.I.A.'s chief of counter-terrorism, virtually every important piece of intelligence information necessary for Israel's self-defense had been turned over to the Israeli Mossad. In exchange, the Mossad provided the C.I.A. with crucial information about the Soviet Bloc gathered from its extensive network of agents operating behind the Iron Curtain. A C.I.A. report recognized that Israel's intelligence services are "among the best in the world" and that
the United States had benefited enormously from the flow of information between the C.I.A. and the Mossad.
All this changed quite abruptly under Bobby Ray Inman. Inman was furious with Israel when that nation's air force pulled off a spectacular raid on the Iraqi nuclear facility at Osirak - a raid that, we know now, may have saved
thousands of American and Israeli lives during the Gulf War. He ordered a halt to the free flow of intelligence to Israel - a decision no doubt pleasing to Defense Secretary Caspar Weinberger, whom an aide described as having "an almost
visceral dislike of Israel."
Inman's bias against Israel has been especially well documented in the press, especially by New York Times columnist William Safire, who accused Inman of "planting a phony story with reporters that Israel was publicizing the Libyan assassination teams in order to set up an air strike at the Libyan nuclear reactor."
The curtailing of U.S. intelligence information during Inman's tenure with the C.I.A. could hardly have come at a worse time for Israel. Its own spies were reporting that Syria and Iraq were developing chemical- and germ-warfare missiles capable of reaching Israeli population centers, and efforts to develop nuclear weapons capable of devastating Israel were continuing as well. Terrorism was threatening to expand both in frequency and in scope. American intelligence information - particularly that obtainable from satellite photography - was essential to pinpointing the sources of danger.
It was against this background that young American intelligence analyst Jonathan Pollard began to see cables about Syrian plans for chemical warfare and Palestinian Liberation Organization plans for increased terrorism against Israel. He also noticed that this crucial information, which could save the lives of countless innocent civilians, was being deliberately withheld from the Israelis.
When Pollard, who is Jewish, complained about the withholding of intelligence information regarding Syrian chemical and gas warfare, he was told that "
Jews get awfully nervous when they hear about gas" and that the Jewish state might "overreact" to the information. When Pollard complained about the withholding of information concerning planned terrorist attacks in Israel's southern Lebanon "security zone," he was told that it would be
good if Israel were to suffer some causalities in Southern Lebanon because "they don't belong there."
Pollard was deeply torn by the situation in which he found himself. As an American intelligence worker, he was sworn to secrecy about what he had seen and heard. But as a Jew who had lost family members in the Holocaust, he could not accept the risk of chemical and gas warfare directed against Jewish women, children and men. Every time he picked up a newspaper and read about Israeli schoolchildren being murdered by P.L.O. terrorists, he blamed himself, because he had access to information that could have saved those lives.
On May 29, 1984, Jonathan Jay Pollard made a fateful decision, one that would change his life forever and affect the relationship between Israel and the United States for years to come. He decided to engage in act of civil disobedience - to break the rules for what he regarded as a higher principle, namely, the saving of innocent lives. It was not an easy decision, even though he regarded the new "rules" that he would be breaking as wrong and immoral.
He thought about simply quitting his job in protest, but that would not have saved lives. He thought about giving up his U.S. citizenship, moving to Israel, and providing his new country with the fruits of his past work. But that, too, would have broken the law, and would have denied Israel ongoing access to lifesaving intelligence data. He decided to offer himself up to Israeli intelligence as a continuing source of classified information necessary to the survival of Israel and to the saving of its citizens' lives.
Thus began a tale of intrigue that both boggles the imagination and exposes the soft underbelly of America counterespionage methods. Beginning in May 1984 and continuing through the fall of 1985, Pollard removed literally thousands of pages of classified documents, maps and other materials from the files of the Navy's Anti-Terrorist Alert Center, transported them to different "safe houses" around the Washington, D.C. area for photocopying, and then delivered the copies to representatives of the Israeli government. The truly surprising fact about Pollard's enterprise is that he managed to deliver these materials to his Israeli handlers for over a year before arousing the suspicions of anyone in the U.S. government, including his immediate supervisors at Naval Intelligence.
Several months after Pollard first began providing classified information to the Israeli government, his Israeli handlers made a tactical blunder that eventually blew up in their faces and Pollard's. They offered to pay Pollard for what he had been providing them for nothing more than the good feeling he got saving lives. It was an offer he could not refuse. Pollard's handlers told him that it was Israeli policy that all spies must be paid if they are providing information on an ongoing basis.
Most intelligence agencies operate on that mercenary principle, reasoning that by paying their spies, they have more control over them and less moral obligation to them if they are caught. Thus, Pollard received relatively small amounts of money over the ensuing months, hardly more than the additional expenses he was incurring as a result of his "moonlighting" efforts.
But this money - approximately $50,000 in all - would come back to haunt Pollard and would open him up to the entirely false accusation that he did it for the money. Had Pollard done it for the money, he could have sold secrets to other intelligence agencies, which would have been willing to pay him millions of dollars.
Nor was Pollard willing to give his Israel handlers everything they asked for, regardless of how much they were willing to pay.
He refused to compromise information that he believed could jeopardize the United States. He regarded himself not as a spy
against his own country, but rather as a spy
for Israel. Naive as that may sound in retrospect, it was so important to Pollard that when he was eventually caught and confessed, he adamantly refused to plead guilty to spying against the United States, and the prosecutors agreed that he could honestly plead only to spying for Israel.
There are those in the United States intelligence community who believe that Pollard was actually working
for the United States, as well as for Israel. According to a recent report published in the New York Post, "an intelligence source tells me [the reporter] that
Pollard was actively assisted in his espionage by some elements of the U.S. government." According to this theory, there were some within the government who were opposed to the Inman-Weinberger decision to curtail the flow of intelligence information to Israel, and these government officials opted for a back-channel method of getting necessary information to the Israelis without creating a confrontation with Inman and Weinberger.
As became clear during the Iran-contra investigation, there were some within the Reagan administration who were not above using back-channel methods to circumvent scrutiny. I have heard numerous variations of this story for years, and even the prosecutors in Pollard's case have publicly stated that they believe he was pointed to certain specific information by at least one high-ranking U.S. intelligence official.
On November 18, 1995, Jonathan Jay Pollard's world began to collapse around him. Although he had always been careful about removing documents from the office, the sheer volume of material that he was transporting practically guaranteed that someone at Naval intelligence would eventually notice him leaving work with classified files.
After one such incident was reported to Pollard's supervisor by a coworker, the net slowly began to close in on him. Pollard was placed under surveillance by federal agents, but a decision was made not to take him into custody immediately, because the F.B.I. still lacked sufficient evidence to arrest him for espionage, and also because the agents hoped that Pollard would lead them to his foreign contacts.
However, the F.B.I. soon became impatient with Pollard's careful routine and decided to detain him for questioning. During that first session, Pollard denied having done anything illegal with the classified materials in his possession. Pollard told the F.B.I. that he was merely delivering the documents to another analyst in the Naval intelligence complex. Since the F.B.I. needed time to verify Pollard's alibi, they decided to release him. This gave Pollard the opportunity to return and begin destroying as much evidence of his clandestine activities as possible. Pollard's wife, Anne Henderson Pollard, helped him move some of the classified materials that he had been keeping at home.
Despite the delay that Pollard had managed to secure for himself by misleading the F.B.I., he soon recognized that his only real hope for escape was to make it to the Israeli embassy. Once there, Pollard planned to apply for political asylum in Israel, a request that he fully expected the Israeli government to grant, considering the value of the information that he provided them over the previous 18 months.
Pollard's drive to the embassy was right out of a spy thriller. He stayed on side streets and frequently doubled back in the hope of evading F.B.I. surveillance. The ploy seemed to work, as Pollard managed to reach the Israeli embassy without being intercepted by federal agents.
Unfortunately for Pollard, the rest of the plan did not go as smoothly. Once at the embassy gates, Pollard identified himself to the guards as a spy for the Israeli government and requested asylum in that country. At first the guards welcomed him, but after checking with the Israeli ambassador, they were instructed
to deny Pollard asylum. They then proceeded to force him to leave the compound. Pollard pleaded with the guards - even breaking into tears at one point - to allow him to remain in the embassy, but despite these entreaties, he was removed from the embassy and immediately taken into custody by the F.B.I.
Had Pollard simply refused to talk, he would be a free man today. Without his own confession, the F.B.I. had no evidence - admissible in a court of law - that he spied for anyone. They could have prosecuted him for the minor offense of unauthorized possession of classified material, but it is unlikely they would have bothered. Even if they suspected that he was spying for Israel, they would have needed witnesses, and the only witnesses who could have testified against him were Israeli intelligence operatives - all of whom has escaped backed to Israel.
Though the Israelis eventually confirmed that Pollard had spied for them, there is absolutely no chance that the Israeli government would have allowed any of its intelligence operatives to come to the United States and be subjected to vigorous and broad-based cross-examination by Pollard's lawyers. In the absence of such testimony, Pollard would have been treated like former State Department official Felix Bloch, whom the government
believes was a spy but against whom it could not make a legal case.
Consistent with the motive underlying his actions - namely, civil disobedience - Pollard had decided to acknowledge what he had done. He instructed his lawyers to accept a plea bargain with the government prosecutors. This decision was also motivated by a desire to help his wife, who prosecutors were holding, in effect, as a hostage. Never before had the wife of a spy been threatened with prosecution for assisting her husband after the fact, as Anne had done. But
the prosecutors knew that Anne suffered from a painful and debilitating illness and that she could not survive long imprisonment.
They offered a "wired plea," meaning that if both Jonathan and Anne were to plead guilty, Anne would be given a reduced charge. Jonathan, too, was promised that in exchange for his guilty plea and his assistance in the Defense Department's damage assessment, the government would recommend that he not receive a life sentence. Pollard agreed to accept the plea bargain expecting the judge to go along with the recommendation and to sentence him to a term of years in the range of other sentences imposed on defendants who had pleaded guilty to spying for other American allies.
But something shocking occurred that dashed Pollard's expectations. In March, 1987, on the day of his sentencing, Secretary of Defense Caspar Weinberger submitted an affidavit to the court in which he made the following statement under oath: "It is difficult for me, even in the so-called year of the spy, to conceive a greater harm to national security than that caused by [Pollard]. He argued that "only a period of incarceration commensurate with the enduring quality of the national defense information [Pollard] can yet impart will provide a measure of protection against further damage to the national security."
Weinberger also asked the judge to impose a sentence reflecting "the magnitude of [Pollard's] treason" - though he knew
Pollard had never been, and could not be, charge with the capitol offense of treason. It does not take any reading between the lines to understand that Weinberger was urging the maximum penalty of life imprisonment - the only penalty that would be "commensurate" with the greatest possible harm to our national security and that would allow the government to keep Jonathan Pollard confined so long as the information possessed had any "enduring quality."
Weinberger's assertion was at best hyperbole and at worst an irresponsible overstatement. He did not have to "conceive" of greater harm: all he had to do was look at the record of recent cases in which spies like the Walker family had cost numerous America lives by turning global strategic information over to the Soviet Union - including nuclear data and spy lists. Pollard, on the other hand, had given a reliable ally regional, tactical information. But Judge Aubrey Robinson, Jr., could not second-guess Weinberger's assessment, since it purported to be based on classified material.
It is impossible to know for sure why Judge Robinson imposed the very life sentence the government had promised not to recommend. Whatever the reason,
the sentence was greater by far than any sentence ever imposed on a defendant who had pleaded guilty to spying for an ally. Typical sentences in such cases were in the
three- to five- year range. Indeed, Pollard's sentence exceeded all but a handful of sentences imposed on defendants who had been found guilty of spying for
enemies during peacetime.
Pollard has served nearly nine years in prison, most of them in Marion, Illinois, the maxi-max federal prison to which they send prisoners who have killed other inmates and guards while serving other sentences. The government claims that it put Pollard there for his own protection, since there were threats from his life from both white supremacists and black Muslims.
In the 1992 presidential campaign, candidate Clinton promised that he would reevaluate the Pollard sentence, and a formal request for a reduction was submitted and referred to the Justice Department. But President Clinton took less than a day to approve the Justice Department's decision recommending that he deny any reduction.
Reports began to circulate in early 1994 that the No. 2 man in the Justice Department, Philip Heymann, was about to recommend a compromise under which Clinton would reduce Pollard's sentence so that he could soon be eligible for parole. The thinking was that since the government had promised to tell the judge that its interests would be satisfied by a sentence of less than life imprisonment, it should
still be satisfied with such a sentence.
Then something happened that once again dashed Pollard's hopes. Outgoing Secretary of Defense Les Aspin leaked a letter he had written to the President opposing any reduction in Pollard's sentence. In the letter, Aspin alleged that Pollard had slipped classified information into 14 letters he'd sent from prison. The implication is that this information might endanger U.S. security.
If there were any truth to this tall tale, it would show unparalleled stupidity on the part of U.S. intelligence officials. All of Pollard's letters are monitored by intelligence officials. If they had spotted any dangerous classified material in the first letter, they clearly would have stopped it - as they had the right to do - from being sent. To wait until 14 letters had been sent would - if true - have constituted government complicity in the publication of dangerous classified information. Indeed, Pollard had the right to rely on the fact that he was advised that his letters were being passed through the national-security censorship.
As one of Pollard's legal advisers and counselor to his family, I had read many of his letters in which he defends himself against charges that he seriously endangered our national security. If any of his letters inadvertently included information that was technically classifed, then it was information that had either already been made public or was of no real importance. The best evidence demonstrating this is that Joseph DiGenova, the prosecutor in the Pollard case, has publicly called for all the classified information in that case to be made public. Indeed, some of the classified information was already leaked to Time magazine by government sources in an effort to deny Pollard's request for commutation.
I have written to Attorney General Janet Reno, asking her to open an investigation of this recent leak, but the Justice Department responded that since no intelligence agency was seeking an investigation, none could be conducted.
This was not the first time government officials had accused Pollard of violating classification rules. Several years ago, the government claimed that 13 of Pollard's letters contained classified information. On November 23, 1992, the director of Naval Intelligence confirmed that the material in those letters had been declassified "because they no longer possess the potential to damage national security." Aspin must have been aware of this statement, yet in his recent letter to Clinton, he conveyed the false impression that the contents of Pollard's letters
currently have the potential to damage our national security.
What we are seeing here is yet
another abuse of the classification system by the Pentagon to serve political, rather than national security, interests. The entire classification system reeks of arbitrariness. Insiders leak classified information with impunity. I was recently told by a former intelligence official that he had been shown classified information in order to give him ammunition to oppose Pollard's release.
The government continues to play fast and loose with the facts. In another recent leak, intelligence officials assert that information given to Israel may have inadvertently found its way to the Soviet Union. Yet prosecutor DiGenova asserted during a public debate that he had no information to confirm that rank speculation.
In a democracy, it is unfair for the government to argue against the rights of a citizen by relying on classified information without giving that citizen the right to defend himself against its charges. Accordingly, the only appropriate course for the government to follow now is that suggested by DiGenova:
all the material upon which the government is relying in its effort to keep Pollard in jail should now be declassified so the public can determine for itself the actual extent of any damage done by Pollard.
I am convinced that a full, fair and open review of the facts will lead to the conclusion that the information given to Israel was largely tactical and regional, rather than strategic and global. It related primarily to Iraq's plans for chemical and gas warfare and to Syrian inspired terrorism directed against civilians.
It has no current intelligence value, and there is no reason to keep it classified.
Shortly after the release of Aspin's letter - and the public flap that followed it - Philip Heymann was asked to resign by Attorney General Reno. Although both gave bureaucratic reasons for the resignation. reports began to circulate that the expected recommendation to shorten Pollard's sentence may have played some role in the decision. Whatever the reason for Heymann's dismissal, Reno quickly abandoned his sensible recommendation and adopted the demand of the intelligence community for its pound of flesh.
A dozen years have now passed since Bobby Ray Inman changed the rules in regard to how the intelligence game was played with Israel. Inman has now been discredited by his bizarre performance in first accepting and then rejecting the position of secretary of defense. He claimed reporters had been calling and asking him if he was gay; he protested a handful of critical articles about his business acumen and ethics: and he left the American public, and the president who appointed him, thankful that he's out of public life.
Caspar Weinberger, on whose sworn secret affidavit Judge Robinson purported to rely, was indicted for perjury, but before he could come to trial, he was pardoned by President Bush. It is my belief that Weinberger's affidavit was as farfetched as his testimony before Congress.
At this writing, Jonathan Jay Pollard remains in prison.
No person in history has ever served as much time for spying for an ally. If Aldridge Ames is convicted of the most serious allegations against him - causing the deaths of several Soviet citizens working for the C.I.A. and the F.B.I., as U.S. agents, selling secrets to Russia, and receiving millions of dollars - he can receive no greater sentence than that imposed on Jonathan Pollard. (Note: Ames eventually received the exact same sentence as Pollard, despite the fact that Ames committed much more serious crimes.)
The time has come for the United States to keep the promise it made to Pollard when it agreed to recommend a sentence of less than life imprisonment.
It broke that promise when Caspar Weinberger, on behalf of the government, successfully urged the maximum penalty, and
it will continue to break its promise unless it now recommends what it promised it would recommend - namely, a sentence of less than life imprisonment.
Jonathan Pollard should served a sentence commensurate with sentences served by others who have pleaded guilty to spying for our allies. By that stand of equal protection,
he should be free now. The time has come for all Americans to demand that this country keep its promise. At the very least, Pollard should be released at his earliest possible parole date, in 1995.
In a final note of irony, Israel is now being pressured by the United States to free hundreds of P.L.O. terrorists who were responsible for the murder of innocent civilians. President Clinton's refusal to release Pollard - who poses no current danger to the United States - will make it more difficult for Israel to justify to its vulnerable citizens taking the risks entailed in complying with the American pressure to release these terrorists in the interest of the ongoing peace process. (Note: In 1997, Israel released hundreds these terrorists, including many murderers, but never requested a reciprocal move by the U.S. government to release
one prisoner, Jonathan Pollard.)
And remember the Israeli solider who spied for the United States? Although he was never identified by name, he is believed to be the same man who was recently released by the Israeli authorities after serving
seven years in prison, despite the fact that his espionage posed a
far greater threat to Israeli security than Pollard's posed to U.S. security.
See Also: The Admiral Bobby Ray Inman Page