Should the president commute the sentence of spy Jonathan Pollard?

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 same defects.

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:

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 disproportionately high 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.

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