Should the president commute the sentence of spy Jonathan Pollard?
December 21, 1998 - Insight Magazine - Alan M. Dershowitz
As President Clinton considers whether to release Israeli
spy Jonathan Pollard -- who has already been imprisoned
longer than anyone who pleaded guilty to spying against the
United States for an ally -- he should heed the lessons of his
own case. Clinton has, quite properly, railed against the
Kenneth Starr Referral for its one-sidedness and inaccuracy.
The accusations being leveled against Pollard suffer from the
On the basis of rumor, innuendo and classified
information, Pollard's enemies are providing an entirely false
and misleading picture of his crimes. And these undocumented
accusations are being accepted by many as gospel. Here are
some of the questionable charges being circulated:
- Joseph diGenova, who prosecuted Pollard -- and who,
pursuant to a plea bargain, recommended a sentence of less
life imprisonment -- now claims that Pollard "put at risk
the lives of seamen, Air Force men, Marines and Army
personnel of the United States all over the world." This is
flat-out false, and I challenge diGenova to provide evidence
that even a single person died as a result of Pollard. DiGenova
himself has changed his story at least three times.
First, he said that Soviet citizens who were spying for the United States -- not U.S. soldiers -- had been placed at risk. Then he
acknowledged -- in a public debate with me -- that no one
actually had been placed at risk.
And now, on the basis of no
new information, he makes the outrageous claim that U.S.
soldiers were put at risk. I have been assured, by the highest
levels of our intelligence community, that no one has died as the
result of Pollard's actions. It originally was believed that the
names of some Soviets who had spied for the United States
were disclosed by Pollard, but now it is known for certain that
these names were turned over to the KGB by Aldrich Ames,
- The New York Times editorial page appears to have
accepted the diGenova assertions hook, line and sinker and
even has expanded them to include the assertion that "some of
the material [taken by pollard] may later have fallen into
Russian hands through KGB operatives in Israel," thus
"endangering informants." There is nothing in the public record
to support any of these claims, and there is much to suggest
that they are without foundation. A great newspaper should not
buy into the CIA's modus operandi, which is to keep the
evidence classified, to leak it to selected sources and then to
say, "Trust us." If the government is to maintain that these
allegations against Pollard are true, it must disclose the
- DiGenova has claimed that the information Pollard
"knows today" still is secret and he poses "a continuing threat
to the security of this country." Yet in a televised debate with
me, diGenova agreed that enough time had passed to
declassify the records of the case without in any way
endangering our national security. The truth is that Pollard's
information is 13 years old and he knows nothing that would
endanger our security.
- Many of Pollard's enemies are saying that he did it for
the money. False. He provided Israel with classified documents
which he believed were essential to Israel's security, out of
misguided ideology, not financial motivation. He asked for no
money when he first provided the material. It was his Israeli
handlers who insisted on giving him relatively small amounts of
money. That is what spy handlers do to eliminate any moral
responsibility in the event the spy is caught. I don't know
anyone who believes that if Syria or Iraq had offered Pollard
$1 million he would have given them anything.
- Some in Congress have said that Pollard provided
information about China and South Africa and that he was
willing to sell information to other countries. That, too, is false,
as a review of the file will confirm.
- Some have argued that there must be another Israeli
spy in our government, since Pollard was given specific
instructions about what to look for in the files. It is believed that
some within the intelligence community want to hold Pollard in
prison until he discloses the identity of "Mr. X." But it is absurd
to assume that the Israelis would have told an amateur such as
Pollard the name of any super-secret Israeli mole, if one exists.
- The New York Times pointed out that the Israeli
government has refused to return the most sensitive documents
that Pollard gave it. Even if true, Pollard has no control over
the Israeli government's actions and should not be held hostage
- Some have said that Pollard continued to disclose
classified material while he was in prison. That is impossible,
since Pollard's phone calls, letters and visits have been
The last time Clinton reviewed the case, he heard from
only one side -- the prosecutors, intelligence operatives and
defense people who wanted to keep Pollard in prison for the
rest of his life. Indeed, a recommendation more sympathetic to
Pollard was written by Philip Heymann, then the No. 2 person
at the Department of Justice. As far as I know, the president
never saw the Heymann memorandum.
This time he should
listen to both sides. He should obtain the memorandum from
the Justice Department, listen to the arguments of Pollard's
advocates and make an assessment based on all the evidence
-- not just the analog of the one-sided Starr Report. A full and
fair review cannot be based on advocacy by one side. There
are two sides to this dispute, and both should be heard.
Clinton also should review the unfair tactics employed by
the prosecution in this case. They broke their plea bargain to
Pollard. In the plea bargain, the government promised not to
seek life imprisonment, but the prosecutor then double-crossed
Pollard by submitting an affidavit from then-secretary of
defense Casper Weinberger which demanded the harshest
possible penalty -- life imprisonment.
This and other
double-dealing led a judge of the Court of Appeals to
characterize "the government's breach of the plea bargain [as] a
fundamental miscarriage of justice." The two other judges
strongly implied that the life sentence was too harsh but
declined to interfere on procedural grounds. Now the president
has an opportunity to correct this miscarriage of justice.
One indisputable fact is in the public record: The U.S.
government officially took the position at the time of the plea
bargain, after assessing all the damage, that Pollard's actions
did not warrant a sentence of life imprisonment. Pollard
pleaded guilty -- thus sparing the government a long trial at
which secret information inevitably would have been disclosed
-- in exchange for the promise not to seek a life sentence.
It is illegal and immoral for government officials now to
break the government's promises and change its position.The
government must stick to its promise and continue to maintain
that a sentence of life imprisonment is
for Pollard's crime. It also is wrong for the director of the CIA
-- whose job is information gathering and not policy making --
to try to influence the president's decision by threatening to
resign if Pollard were to be released. Pollard should not receive
the same sentence as Ames -- who did endanger lives and
national security for money.
Our system of justice is based on
proportion. It also is based on the U.S. government keeping its
promise. Finally, it is based on the due-process right of every
imprisoned person to confront those who are making
questionable claims about the damage he caused, rather than
have his imprisonment continue on the basis of selectively
leaked one-sided allegations that may well be false, overstated,
incomplete or misleading.
The liberty of every American is
placed in jeopardy when our government does not play by the
rules and keep its word. Justice demands a fair review of the
entire Pollard case, including the plea bargain. I am confident
that such a review will result in Pollard's release.