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

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

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

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

good if Israel were to suffer some causalities

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.

against

for

There are those in the United States intelligence community who believe that Pollard was actually working

for

Pollard was actively assisted in his espionage by some elements of the U.S. government

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

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

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

Weinberger's assertion was at best hyperbole and at worst an irresponsible overstatement.

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

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

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 government continues to play fast and loose with the facts.

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

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.

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

it will continue to break its promise

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

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

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

far greater threat