Court Rules Jonathan Pollard Can Continue Appeal
Anne Gearan - The Associated Press - June 10, 2004
WASHINGTON - A federal appeals court has allowed convicted spy Jonathan Pollard another chance to fight his life prison term for passing secrets to Israel.
A three-judge panel will hear arguments in the case, probably later this year. The panel will not decide whether Pollard's sentence was too harsh, as he claims. Instead, the judges will decide only if Pollard can take the next step in his legal fight.
The court could also grant a request from Pollard's current lawyers to see partly classified documents used at Pollard's 1987 sentencing. The lawyers say they need to see the material to rebut government arguments against any new appeal or against a request for presidential clemency.
Pollard has lost several rounds in federal court, and the June 7 order from the D.C. Circuit Court of Appeals that kept his case alive marked a surprising, if incremental, victory.
Pollard has exhausted his regular appeals, and would need special permission from a judge to take the case further. U.S. District Judge Thomas Hogan turned him down last fall, and the case could have ended there.
Lawyers for Pollard asked the appeals court to reconsider Hogan's ruling, a request that is routinely denied. The appeals court instead agreed to take up the matter.
"This is a significant development for Jonathan Pollard and the effort that we have made ... to get justice for him," lawyer Jacques Semmelman said Thursday.
Pollard's lawyers will press two issues before the appeals judges. First, Pollard claims that his sentencing was unconstitutionally tainted because his original lawyer fell down on the job. Second, Pollard's new legal team will try to win access to the secret sentencing documents.
The appeals court has several options now. The judges could uphold Hogan's ruling, meaning Pollard cannot appeal any further. Or the judges could say Pollard should have been given the chance to appeal, and order a new round of legal filings before their court.
The judges could also skip a step, and rule on the appeal itself. In that event, the judges could order a fact-finding hearing in lower court on whether Pollard's original lawyer failed his client.
Pollard, 49, was a civilian intelligence analyst for the Navy when he copied and gave to his Israeli handlers enough classified documents to fill a walk-in closet *[J4JP: Not true. See J4JP Note 1 below] He was not paid when his spying began in 1984, but acknowledged that Israel later began paying him a few thousand dollars a month.* [J4JP: Jonathan Pollard was an ideologue, not a mercenary. See J4JP Note 2 below.]
Pollard was caught in November 1985 and arrested after unsuccessfully seeking refuge at the Israeli Embassy. He pleaded guilty, and now claims prosecutors reneged on a promise to seek a lesser sentence in return for his cooperation.
- In spite of repeated mistatements in the press, Jonathan Pollard was an ideologue, not a mercenary. The FBI concluded after nine months of polygraphing that Pollard acted for ideological reasons only, not for profit. This fact was recognized by the sentencing judge who declined to fine Pollard.
Moreover, on May 12, 1998, Israel formally acknowledged Jonathan Pollard had been a bona fide Israeli agent. Every agent receives a salary, and that is what is being referred to above. Because Jonathan was an Israeli agent, there can be no remaining doubt about Jonathan Pollard's motives. Being an official agent is, by definition, the polar opposite of being a mercenary.
- The government used an insidious formula to exaggerate the volume of information that Jonathan Pollard passed to Israel. The formula was: if only one page or a single sentence of a document was passed to the Israelis, it was counted as if the whole document had been transmitted. Even referenced documents and sources were counted as having been transmitted in toto. Using this calculation, a single page could be counted as 50 hard-bound 500 page volumes!