Justice Sought For Jonathan Pollard
Ilana Freedman - Metrowest Daily News - Friday, January 16, 2004
In the final lines of our Pledge of Allegiance, America is described as a nation "with liberty and justice for all."
Viewing life in America through the lens of history, we can see a heritage peppered with testimony that this grand view of life has not always worked. Justice has not always been done. Dredd Scott, for example, was returned to his 'owner' by no less an authority than the Supreme Court, putting the full force of Constitutional law behind the concept that it was acceptable for one human being to own another.
The case of Jonathan Pollard may be another such case, although in a far different area of justice.
On the surface, the case seems simple. In 1985, Pollard, a civilian American Naval intelligence analyst, was accused of providing classified information to the State of Israel, an ally of the United States. Pollard admitted his guilt and acknowledged that what he did was wrong. He pleaded guilty and received a life sentence of which he has already served nearly 18 years. Case closed.
Or is it? Things are not always what they appear to be. A deeper look at this case should raise an alarm in those who cherish liberty and the system of government that promises "justice for all." Jonathan Pollard has not received justice.
Following his arrest in 1986, Pollard admitted his guilt and entered into a written plea bargain with the federal government. In this agreement, he gave up his Constitutional rights to remain silent and to "a speedy and public trial". He agreed to plead guilty to a single count of conspiracy to commit espionage and to cooperate fully with the government. In return for his guilty plea and full cooperation, the government agreed to advise the sentencing judge of Pollard's cooperation, and to refrain from asking the court to impose a life sentence.
The records show that over the next 15 months, Pollard cooperated fully. The government, however, while receiving the benefits of the plea agreement, including the elimination of a public trial in a high-profile espionage case, violated its commitment by asking the court to impose a life sentence.
Then, on the day before sentencing, Secretary of Defense Caspar Weinberger, submitted a four-page Supplemental Declaration to the judge, in which he accused Pollard of treason, a crime for which Pollard had not been charged and which he had not committed. (A capital offense, treason is defined as "giving aid to an enemy of the United States.")
In a 2002 interview, Weinberger admitted that the Pollard case was "a very minor matter." But in 1987, he played a pivotal role in the outcome, and the damage he did was irreparable. Although Pollard had been charged only with "conspiracy to commit espionage," the government's case, supported by Weinberger's damning declaration, persuaded the judge to sentence Pollard to life in prison.
In May 2000, two New York attorneys, Eliot Lauer and Jacques Semmelman, acting on a pro-bono basis, took over Pollard's representation. The case then took on a new and bizarre dimension. Pollard's new attorneys sought access to five, formerly-accessible documents relating to the trial, which had been sealed since March 1987.
Although they went through a lengthy process to receive "Top Secret" clearance for the specific purpose of defending Pollard, they were nevertheless denied access to these critical documents.
One can only conjecture at the reason for this extraordinary secrecy. Perhaps an answer may be found in an understanding of the times.
A 1991 edition of the ABC News Nightline explored American involvement in the movement of arms, technology, money, and intelligence to Iraq during the early 80s. According to moderator Ted Koppel, "U.S. laws were violated, even as official U.S. policy was that no help should go to either side" in the ongoing war between Iran and Iraq. The Iraqis were building chemical and weapons factories with our assistance (the same factories that our Air Force would later bomb during the 1991 Gulf War), and Israel, our staunch ally since its founding in 1948, was a known target.
According to US-Israel agreements, satellite information on enemy build-ups should have been shared, but it was not. This was the type of intelligence that Jonathan Pollard passed on to Israel. It did not compromise our security, nor did it present a danger to any of our agents.
It did supply Israel with critical information about a threat to their national security, information Israel was entitled to under a 1983 Memorandum of Understanding with the United States. But, because the information was classified and the transfer was unauthorized, it also constituted espionage.
The release of information about our government's complicity in the build-up of Iraq's military machine at a time of a developing enmity between Iraq and the United States would have been, at the very least, a deep embarrassment to our government. Better to sacrifice one man than to risk a government scandal.
Perhaps this explains why significant files regarding the Jonathan Pollard case are still sealed and why Jonathan Pollard continues to serve out a life sentence.
Shame rests on those who bore false witness, who broke good-faith agreements, and who condemned a man to a lifetime sentence that far exceeded the severity of his crime.
His conviction was based on flawed testimony and prevented him from due process under the law to which every American citizen is entitled. It is time to revisit this case and to allow Jonathan Pollard the public trial he never had.
Ilana Freedman is a specialist in counter-terrorism and a senior partner of the Gerard Group International.