Pollard's Criminal Enemies
The Jerusalem Post - January 31, 1999 - Alan M. Dershowitz
Present and former government officials, in their efforts to keep
Jonathan Pollard in prison, may have committed crimes similar to those
to which Pollard pleaded guilty. Seymour Hersh recently wrote an article
for the New Yorker Magazine in which he disclosed classified material
which could endanger our national security.
Hersh provided detailed descriptions of American intelligence
operations. These include what Hersh referred to as our "exotic
capability" to take "off-axis photographs" from special satellites that
can reach "areas that were seemingly far out of range." He described
how American officials trained in Hebrew used sophisticated equipment to
intercept "Israeli military, commercial, and diplomatic communications."
He explained how the Navy's Sixth Fleet Ocean Surveillance Information
Facility (FOSIF) in Rota, Spain produced daily reports on all Middle
East activity based on data "supplied both by intelligence agents
throughout the Middle East and by the most advanced technical means of
intercepting Soviet military communications."
Hersh revealed that FOSIF shared space with another larger N.S.A.
intercept station, "occupied by more than seven hundred linguists and
cryptographers, which was responsible for monitoring and decoding
military and diplomatic communications all across North Africa." Hersh
described the Defense Intelligence Agency's Community On-Line
Intelligence System (DIAL-COINS), which "contained all the intelligence
reports filed by Air Force, Army, Navy, and
Marine attachés in Israel and elsewhere in the Middle East."
And he described "what is perhaps the most important day-to-day
information in signals intelligence: the National SIGINT Requirements
List, which is essential a compendium of the tasks, and the priority of
those tasks, given to various N.S.A. collection units around the world."
Perhaps Hersh's most explicit revelation came in his description of the
RASIN, a 10 volume reference manual of radio-signals notations that the
N.S.A. uses to compile the parameters of every known communication
signal. Hersh reports that the RASIN, which is "classified top-secret
Umbra,'" was listed in the "still secret declaration to the court before
Pollard's sentencing hearing." Hersh reported as per an unnamed Justice
Department official that "the RASIN was the ninth item on the damage-assessment list." Hersh asked Pollard's trial
lawyer to respond to these classified allegations, but he could not
lawfully do so, "citing national security."
Hersh's governmental sources felt no such constraint. Pollard's current
have been denied the very information leaked to Hersh, on the ground
that it remains classified. Indeed one of the arguments made for
retaining Pollard in prison is that he would disclose some of the very
information that Hersh has now published. That is the lawless
"Catch-22" in which Pollard finds himself.
Hersh has acknowledged that he had long tried unsuccessfully to obtain
this secret information from members of the intelligence community but
had always been rebuffed. But now that President Clinton is considering
keeping the promise the government made to Pollard in its plea bargain
that it would not seek
life imprisonment - some members of the
intelligence community have decided to break the law in order to keep
him in prison.
Let there be no mistake about the fact that anyone who discloses
classified information without authorization is guilty of a serious
crime, even if the disclosure is to the press.
In 1985, another former Navy Analyst, Samuel Morison, was sentenced to
two years for leaking to the British magazine Jane's Defense Weekly US
intelligence pictures of a Soviet aircraft carrier under construction.
The Court of Appeals ruled that such press leaks were covered by the
statute. Hersh has a First Amendment right to publish leaked classified
material, but his intelligence sources have no right to leak it.
In his article Hersh quotes intelligence sources as speculating that
some of the material Pollard gave to Israel may have been bartered by
Israel to the Soviet Union. This is false, as the late Israeli Prime
Minister Yitzhak Rabin confirmed. But the classified information leaked
to Hersh has certainly gotten to our enemies.
If this material poses no danger to our national security, it should be
declassified so that Pollard's lawyers can respond to the exaggerated
charges now being made against Pollard. If it does pose a continuing
danger, then those who
improperly leaked it should be prosecuted.
I have written to the Justice Department requesting a criminal
investigation of who leaked the classified material to Hersh. This is part of what I wrote:
"The equal application of the law demands that everyone who improperly
discloses classified national security information must be prosecuted.
Pollard is a victim of selective disclosures. All Americans are the
victims of the unfairness of allowing those with security clearance to
pick and choose what they will withhold and disclose. It is impossible
for me to assess whether any of the disclosures provided by Hersh may
pose any danger to our nation's security, but I am certain that if
Pollard had disclosed the identical material, it would be claimed that
he endangered our security.
I am awaiting a reply.
The writer is a professor at Harvard Law School, and was formerly of counsel to Jonathan Pollard.