The petitioner, an Israeli agent, has served nearly 15 years in American prisons, in harsh conditions. He is in poor health and his condition is deteriorating daily. He exists in a hostile and anti-Semitic environment and each passing day presents a growing threat to his very life.
In spite of the above, it is obvious from the respondent's reply to the court - which is both fraudulent and misleading - that the respondent does not take the urgency of the petitioner's situation seriously.
- The Appointment of A "New" Committee Head
[The respondent claims he appointed Mr. Moshe Kochanovsky, Head of Special Operations at the Ministry of Defense, to coordinate efforts to seek the petitioner's release]
The appointment of Kochanovsky is not a new development. It is a deceptive move designed to appease public opinion, for the following reasons:
- Kochanovsky was originally appointed to this task in 1997, and resigned a few months later in 1998 when he came to the conclusion that he did not have the authority or the standing in Washington necessary to bring about the release of the petitioner.
A copy of Mr. Kochanovsky's letter of resignation is attached as Exhibit A.
- After Mr. Kochanovsky resigned in 1998, it was clear that a higher level of political authority was necessary and the job was given over to Cabinet Secretary Dani Naveh.
- Following the Wye summit, where the release of the petitioner was negotiated at the highest political levels, the job of concluding the deal and securing his release has been defacto elevated to that level, and can now only be handled at the highest level of political authority, namely by the Prime Minister and Minister of Defense, the respondent himself. He is the only one with the requisite authority and standing in Washington to enter into direct negotiation with the President of the United States to conclude the deal that was begun at Wye.
As soon as the petitioner was informed of the reappointment of Mr. Kochanovsky on September 21, 1999, a letter was immediately sent by the petitioner's attorney to the respondent rejecting the reappointment of Mr. Kochanovsky, and explaining in detail all of the above points. A copy of said letter is attached as Exhibit B.
- The Respondent's Offer to Fund Chocolate Bars and Shampoo for the Petitioner
[The Respondent has offered to fund only the petitioner's "personal expenses".]
This is not a serious offer. It has been made before and it has been refused before. In practical terms this offer is limited to things like chocolate bars and shampoo that the petitioner can buy in the prison commissary.
The petitioner's personal needs go beyond buying chocolate bars in the commissary. His needs include his legal expenses and full financial support for himself and his wife. The petitioner suffers greatly knowing that his seriously ill wife is coping with massive expenses related to his incarceration, but the government does not consider this as "personal expenses".
The petitioner lacks sufficient funds to get the additional legal help that is needed in the U.S. He is unable to pay his attorneys in Israel, who are currently working pro bono.
The respondent's offer is insulting.
- The Respondent's Refusal to Fund the Petitioner's Legal Expenses
[The respondent claims that petitioner has no right to choose his own representation and that his current attorney does not cooperate with the government.]
- Regarding the Petitioner's Right to Choose His Own Legal Representation:
It is outrageous that the respondent denies the petitioner the fundamental right to choose his own legal representation. Instead it continues to try to force him to accept lawyers whose primary contractual obligation is to other parties who have demonstrated little or no interest in actually securing the release of the petitioner.
Concurrent with the petitioner's 1994 decision to choose his own attorney, the government cut all funding to the petitioner.
From 1985-1994 the Government spent millions of dollars funding attorneys for the petitioner.
For the Government these attorneys were a means to distance itself from the petitioner and to isolate him, while for the petitioner these attorneys were supposed to be the means to fight strenuously for his release.
Clearly there was a conflict of interest between the needs of the Government and the needs of the petitioner when attorneys were selected for him. This resulted in constant tension and friction between the petitioner and his attorneys, who felt that their primary obligation was to the Government that was paying them, and not to the petitioner whose case they were supposed to be advancing. These attorneys expended more effort to keep the petitioner quiet than to secure his release. Additionally they continuously bungled and or delayed legal procedures.
For example, the petitioner's first government-paid lawyer made a "mistake" that even a law student would never make. He "forgot" to file a document which would later allow the petitioner to file a direct appeal, and that so-called mistake has haunted the petitioner for the last 15 years. Indeed it figured prominently in the U.S. Appellate Court's decision to reject the petitioner's 1991 appeal on procedural grounds, not substantive ones.
The last govenment-paid attorney had to be taken to a legal ethics board before she would agree to turn over crucial files belonging to the petitioner, some of which she later acknowledged had been "lost". These included some very difficult to re-obtain Freedom Of Information documents which could absolve the petitioner of crimes that he has falsely been accused of by unnamed government sources in the American media.
Clearly the petitioner has a fundamental right to choose his own legal counsel to ensure that his best interests are served, and not those of another party.
- Regarding the Government's Claim that the Current Attorney Does not Cooperate:
In a June 6, 1999 letter to the attorney of the petitioner, former Cabinet Secretary Dani Naveh wrote, "Thank-you for your cooperation in the efforts to secure the release of Jonathan Pollard during the time that I served as Cabinet Secretary." This is one of many expressions of thanks that the attorney has received, orally and written, commenting on his service to the petitioner and on his cooperation with the government. Mr. Naveh's letter also states that if the petitioner's previous attorneys were paid by the government, there is no reason why his current attorney should not also be paid. [Copy of said letter attached as Exhibit C.]
- The False Claim that Petitioner has No Legal Right to Petition the Court.
[The respondent mistakenly argues that issues raised in the current petition were previously raised in another petition no. 2633/97 that was dismissed, and that they therefore cannot be raised again.]
This claim is completely false for the following reasons:
- The petitioner agreed to dismiss Petition 2633/97 in return for a letter [Exhibit A of Petition 6029] officially recognizing the status of the petitioner as a bona fide Israeli agent, and committing the Government to accepting full responsibility for him, including seeking his immediate release.
In the time period following Wye up to the present moment that commitment has been consistently violated, giving the petitioner full legal right to return to court.
- Additionally, neither the requests made in the previous petition nor the issues raised are the same. For example, a request made to produce documents in an addendum to petition 2633 was specifically to prove the petitioner's status as an agent. This is not the same as a formal request for copies of specific documents made in petition 6029/99 so that the petitioner may use them in his legal defense in the U.S. Another example, nowhere in petition 2633 is any request ever made for a copy of the petitioner's personal file at the Ministry of Defense.
Of course, none of these documents would be needed by the petitioner if the respondent had discharged his responsibility to defend the petitioner against the unending false charges in the media in the U.S. which have only intensified since Wye, and if he would have made intensive efforts to secure the petitioner's release.
- The Misleading Excuse that the President is Currently Reviewing the Case
[The respondent argues since the President is still reviewing the case nothing more can be done to secure the petitioner's release until the President makes a decision.]
The so-called "speedy review" of the Pollard case, which was promised to the former Prime Minister at Wye in return for his agreement to publicly back down on Pollard, was simply a face-saving device for President.
A year has passed since then. It is clear that the President is now just using the bogus review as an excuse to delay long enough to duck the issue and hand the Pollard problem over to his successor. The respondent is playing along with this farce instead of discharging his responsibility to seek the immediate release of the petitioner.
The former Prime Minister himself confirmed in a recent meeting with the wife of the petitioner, that the President's commitment to free the petitioner was an integral part of the Wye Accords. [See Exhibit B]. When the President publicly reneged, a private arrangement was made between the two leaders, that the petitioner would go free at a later date, parallel to the release of Palestinian prisoners.
The respondent torpedoed this deal. Because of the respondent's damaging statements during his recent trip to the U.S. which unlinked the connection of the petitioner to the deal at Wye, and which sabotaged the petitioner's case by defining him as "an internal American issue", there is no reason to believe that the President has any incentive to quickly complete a review on the Pollard case, or to use such a review as a justification for freeing the petitioner.
The President recently demonstrated that when he has a compelling personal interest to do a speedy review in order to free prisoners, it gets done in no time at all. As well he has recently proven that when he wants to, he will exploit his constitutional power to grant clemency in spite of the opposition of the CIA, the FBI, the Justice and Intelligence Departments, and Congress. - This is in fact exactly what Mr. Clinton did in September of 1999. After a very speedy review of the cases, he offered executive clemency to 16 Puerto Rican terrorists, members of the FALN terrorist organization, who were responsible for 130 bombings in the U.S., which resulted in the deaths and injuries of scores of Americans. He did so in spite of the opposition of all of his government advisors and agencies. He did this in an apparent attempt to boost his wife's chances with the Hispanic community in the New York Senate Race.
In light of the above, if the President were approached by the respondent, and were given the incentive to free the petitioner, clearly he could, and he would. As Israel's closest ally, and with relations at an all-time high between Jerusalem and Washington, it is inconceivable that if the respondent really tried, that he would be refused.
There is no justification for the respondent's continued unwillingness to conduct swift, direct, intensive negotiations with the President to seek the immediate release of the petitioner.
- The Empty Claim that the Washington Embassy will Provide Assistance to the Petitioner to Secure Appropriate Medical Care
[The respondent claims that the Embassy will contact the appropriate American authorities to see that appropriate medical treatment will be provided for petitioner.]
This is not a credible commitment.
This is the same Ambassador and the same staff at the Embassy who have been callously indifferent to the petitioner for the last 4 years, in spite of orders to the contrary. They have consistently refused to respond seriously to the petitioner's repeated requests for assistance. There is no reason to believe that there is any change in attitude at the Embassy. The staff at the Embassy are not even aware of the petitioner's medical condition or needs, and have never made any effort to be informed. This is a pitifully inadequate response.
- The Respondent's Incredible Claim that Return of an Israeli Agent Is Achieved in Stages that Take 10 or 20 Years or More
[The respondent claims that his efforts are part of a staged plan that began 15 years ago and is still on-going today.]
The respondent claims that he is seeking the return of Israeli agent, Jonathan Pollard, in a staged plan that has taken 15 years so far, required the appointment of numerous committees and involved successive governments, and that the plan is currently on-going under the present government. This response is an insult to the intelligence of the court.
Intensive action taken in recent cases where the Government sought the release of Israeli agents produced the desired results in Jordan - in days, in Switzerland - in weeks, and in Cyprus - in months. Clearly when the the government of Israel wants to free an agent, it knows how to do so, and swiftly.
- The Fig Leaf of "Quiet Diplomacy" and the Respondent's Insistence that any Public Discussion Hurts the Petitioner
[The respondent claims he is working quietly behind the scenes to secure the release of the petitioner.]
There is no quiet diplomacy currently occurring. Outside high level sources confirm that there are currently no steps being taken by the respondent to secure the release of the petitioner. Details include the following:
- The respondent hides behind meaningless generalities such as he is "doing different things in different places, through different channels" - but refuses provide specific details. If the respondent is not willing to provide specific details, then at very least he ought to produce results. As long as the respondent does not provide specific details, and does not produce results - such as the immediate release of the petitioner, his claims about working behind the scenes are simply not credible.
- When quiet diplomacy is truly occurring, the government has need of intensive contact with the petitioner to ensure that the petitioner will not do anything to frustrate the government's efforts. This was indeed the case with the negotiations at Wye when the petitioner was in close contact with the government. Ever since the election of the respondent, all contact with the petitioner and his representatives has been cut.
- The release of the petitioner is a matter now squarely between the respondent and the President of the U.S. If the respondent would fulfill his responsibility and acts upon it at once, there would be no need for this high profile appeal to the Supreme Court or for any further public discussion because the petitioner would already be home in Israel.
- As well, the respondent claims that his remarks to the Conference of Presidents and other Jewish leaders, which they understood as a request to desist from any activity on behalf of Pollard, were misinterpreted. If that is so, the respondent ought clarify the meaning of his remarks in a letter to the Conference of Presidents and make a copy available to the court and to the petitioner.
- The Claim that the Petitioner and His Representatives Will be Consistently Briefed
[The respondent claims that at some future unspecified date, the petitioner and his representatives will be consistently briefed about efforts to secure his release by some unspecified official.]
There is no reason to believe this claim.
There has been no official contact with the petitioner or his representatives right up to this to date - other than of course the one letter announcing the non-credible reappointment of Mr. Moshe Kochanovsky. Even Mr. Kochanovsky has not made any attempt to discharge his professional responsibility by contacting the petitioner or his representatives. If this is the behavior of the respondent when a petition is pending, certainly nothing better can be expected when there is no longer a petition before the courts.
- The Outrageous Claim that Respondent has fulfilled all of His responsibilities
[The respondent claims that he has lived up to all of his responsibilities to the petitioner that flow from the letter Exhibit A of Petition 6029/99.]
Consistent with the points shown above, there is absolutely no evidence that the respondent has fulfilled any of his legal, moral, or financial obligations to the petitioner. Nor is there any evidence of any honest or serious effort being made to do so. Moreover, since the petitioner is still sitting in prison, 15 years later, it is clear that the respondent has not exploited all the means he has at his disposal to seek the immediate release of the petitioner.
Whether the respondent chooses to secure the release of the petitioner as part of the original arrangement made at Wye, or on the basis of the excellent relationship he claims to have with the White House, or on the basis of the unfair treatment of the petitioner and the grossly disproportionate sentence he is serving, or even on humanitarian grounds because the health of the petitioner is failing, it is up to him. But he must act, and if he does so in a meaningful and intensive way, there is no doubt that he achieve the same speedy release of this Israeli agent that has been achieved in other recent cases. will. No one else can discharge this responsibility for the respondent, nor can he continue to evade it.
Anyone not familiar with this case who reads the respondent's response might think that this is the petitioner's first year in prison instead of his 15th. His health is failing. Each additional day that he spends in this hostile environment puts his life at risk.
The speedy rescue of an Israeli agent which was promised to the petitioner, and which should have occurred in a relatively short time as is usual, has already dragged on for 15 years. The petitioner's long and drawn out incarceration has set a dangerous precedent whereby the Government allows itself to pick and choose which agent/soldier will be immediately rescued and which agent/soldier will be left in the field to languish indefinitely.
The respondent's deliberate evasion of his responsibility to the petitioner, particularly in light of the fact that the petitioner has already served 15 years in prison as an Israeli agent, is an both an affront to the moral conscience of the State of Israel, and its badge of shame. It is now up to the honored Supreme Court to correct this distorted and immoral precedent that threatens all those who serve the State, and who rely on the State to rescue them in time of need.
The honored court is therefore requested to respond to this request and order an emergency session to hear this petition and to grant a conditional judgment.
Baruch Ben-Yosef, Esq.
Attorney for the petitioner