Avraham Weissman - Hamodia - June 5, 2017
In their written ruling issued last week, refusing to grant Jonathan Pollard's appeal of a lower-court judge's rejection of a petition seeking the removal of broad and severe parole restrictions, a three-judge panel of the U.S. Court of Appeals cited a letter written in 1995 by Admiral William O. Studeman, who at the time served as acting director of the CIA.
The existence of this document was kept secret from Mr. Pollard and his attorneys for more than two decades and only saw the light of day after Pollard appealed last year, as part of the current legal battle over his parole restrictions. Ever since then, the real story behind this letter has been shrouded in mystery.
In this investigative report, based on exclusive conversations with sources close to the Pollards and newly available court documents, we shed new light on the history of the Studeman letter and its role in this long-running travesty of justice.
A telling indication of what this letter is all about came when this reporter reached Admiral Studeman by telephone and asked him if he would agree to answer a few questions about the Pollard case.
The admiral seemed taken aback by the inquiry, especially when I referred to the fact that a letter he had written had been referenced in a court hearing a week earlier.
"Last week?" he asked.
"Yes," I replied. "This was in regard to the parole restrictions."
"It is my practice not to talk to the media, so I certainly won't talk to you," he replied. He then proceeded to immediately put down the phone, without saying goodbye.
Precisely what message the admiral meant to send by adding the word certainly, we leave up to our readers to determine.
The letterhead on the seven-page typewritten letter dated May 1, 1995, read "The Director of Central Intelligence." In reality, William O. Studeman was only the acting director. R. James Woolsey, who would later be a forceful advocate for clemency for Pollard, had stepped down in December, and his successor, John M. Deutch, would formally take over on May 10 - nine days after this letter was written.
It was addressed to John R. Simpson, the regional commissioner for the Eastern Region of the U.S. Parole Commission, and its stated goal was to convince the commission not to grant parole to Jonathan Pollard.
After spending more than nine years in prison, Pollard would soon be eligible to ask for early release from prison on parole. However, unbeknownst to Studeman, attorneys hired on behalf of Pollard to research the matter urged him not to make that request.
The Parole Commission, which is a branch of the Justice Department, was preparing an ambush, the attorneys warned him. Though they didn't know the details, they knew that not only would he certainly be denied parole, but the denial would be a "poison pill," intended to prevent a political resolution to the Pollard affair. Mr. Pollard followed their advice and declined to request parole.
At the time, the decision not to ask for parole was sharply criticized in many quarters. Some went so far as to accuse Pollard of wanting to stay in prison. It was only 19 years later, when his request for parole in July of 2014 was harshly rejected, that his approach was fully validated.
A year later, on July 7, 2015, as the 30th anniversary of his incarceration approached, another parole hearing, this one a mandatory one, was held.
Present was J. Halfast, his case manager at the prison in Butner, North Carolina, where he had been held for the past two decades. She described Mr. Pollard as a "model inmate."
Among the other attendees were Nick Meekins, a representative of the Department of Defense, and David Laufman, the chief of counter-intelligence of the National Security Section of the U.S. Attorney's office. Neither gentleman spoke up during the hearing. They left the talking to Gregg Maisal, the chief of the National Security Section of the U.S. Attorney's office. Mr. Maisal confirmed an earlier letter from the U.S. Attorney's office stating that the position of their office was not to object to mandatory parole, and that the government believed that there was no probability of Mr. Pollard re-offending.
A Single, Noteworthy Infraction
During the hearing, it was noted that only once during his three decades in prison did Mr. Pollard receive what is known as a DHO (Discipline Hearing Officer) Report, indicating that he had broken a prison rule. According to the Parole Commission, that sole infraction was for "insolence" and occurred in 1992, when a warden told Pollard "I run this prison," and Pollard responded "G-d runs the world."
Three weeks later, Pollard was informed that he would be granted parole. He was freed from prison less than four months later - albeit under very harsh restrictions which include wearing a GPS monitoring system that consists of a non-removable transmitter installed on his wrist, and a receiver that is plugged into an outlet in his Manhattan residence. Whenever he moves outside the range of the receiver, the transmitter - which is three inches long and two inches wide - acts as a GPS tracker and monitors his location. Were Pollard to step out of his tiny studio apartment to daven with a minyan or get some fresh air on Shabbos or Yom Tov, the battery would begin to drain, forcing him to choose between violating Shabbos or facing re-arrest.
The parole restrictions also include a "curfew" that puts him under house arrest between 7:00 p.m. and 7:00 a.m. During the daytime, he is only permitted to travel in parts of Manhattan, and is even prohibited from visiting nearby Brooklyn. The restrictions also include the unfettered monitoring and inspection of his computers, as well as those of any employer who chooses to hire him, which has prevented him from being able to gain employment.
It was only after Pollard's attorneys filed a lawsuit seeking removal of these restrictions, and Judge Katherine B. Forrest of the United States District Court for the Southern District of New York remanded the case back to the Parole Commission for "further development of the factual basis" behind their reasoning, did the parole commission, in a "Notice of Action," cite the existence of a letter written by Admiral Studeman some two decades earlier, as a reason for these restrictions.
Most of the letter addresses the admiral's purported concern that granting parole to Pollard would create a distinction between passing classified information to an ally versus an enemy, something Studeman felt would send the "wrong signal" and invite "treachery in the name of friendship."
"Many Intelligence Community employees have ties of family or affection to other nations; many share bonds with their former homelands or those of their ancestors," he wrote.
On page four of his letter, Studeman switches gears to make a stunning claim:
"During Mr. Pollard's incarceration, he has released, or attempted to release, classified information in letters. Under approved security procedures and pursuant to Mr. Pollard's plea agreement, the Office of Naval Intelligence reviews Mr. Pollard's mail for classified information. Since 1989, that Office has identified 14 letters by Mr. Pollard that contained classified information. This information was classified up to the Top Secret Codeword level. The information related to U.S. intelligence sources and methods; as well as to the specific fruits of intelligence collection. In one case, Mr. Pollard discussed a U.S. intelligence-exchange agreement with a particular foreign government. The last letter identified as containing classified information was sent in 1992. In light of Mr. Pollard's proven intelligence, and his experience as an intelligence analyst, his inclusion of obviously classified information in his letters displays either a deliberate indifference to, or careless disregard of, his duty to protect U.S. national security. In addition to the above concerns, Mr. Pollard apparently slipped a letter to his father, thus bypassing security protections. Mr. Pollard's father later provided this information to a national newspaper, which, in turn, published it. Mr. Pollard's track record in prison can only be a harbinger of his anticipated security practices once released."
A legal observer who has been following the Pollard case for many years, and spoke on the condition of anonymity because of the sensitivity of the matter, said he was "flabbergasted" when he first saw the Studeman letter.
"The sending of single letter containing classified information would have sufficed to create a very serious blot on his prison record and very likely be grounds for new criminal charges against Pollard, let alone attempting to send 14 such letters," he said. "The government would have been delighted to find a reason to keep Pollard behind bars for many more years, yet for 20 years they never even insinuated that he had tried to do such a thing.
"Even in July of 2014, when they harshly rejected his plea for parole, they gave no indication that he had broken any rules in regard to the sending of letters. After July 7, 2015, the parole commission itself noted that his sole infraction was when he told a warden that "G-d runs the world."
The Wall Street Journal Article
Though he declined to name the publication, there is no doubt which letter to a "national newspaper" Studeman was referring to.
Held at the time in solitary confinement in one of America's most notorious prisons, Jonathan Pollard was spending his days writing long letters to anyone he thought could possibly help him procure his freedom. After gaining access to a directory of Rabbis, using a typewriter given to him by prison officials, Jonathan typed and mailed out hundreds of such letters to Rabbis across the country. Each of these letters was identical, and focused on his motives for passing the classified information to Israel. Every letter Pollard wrote was carefully scrutinized by military censors, and they raised no objection to anything Pollard was including.
On February 15, 1991, in the midst of the Gulf War, The Wall Street Journal published a moving letter sent to the publication by Jonathan's father, in which Morris Pollard cites at some length a letter Jonathan had written two years earlier to one of these Rabbis - one he had actually obtained from the Rabbi who had received it. (See sidebar for the full letter.)
At no point either before or after the WSJ published the letter did anyone in the government indicate to Pollard that he had violated any rules or committed any infraction by sending "classified information."
After the Studeman letter was released, Mr. Pollard's attorneys - who have high-level security clearances specifically issued by the Department of Justice in connection with their representation of Mr. Pollard - asked to see the "14 letters" supposedly written by Pollard, but were steadfastly refused.
"The government must know that they had cleared hundreds of these same letters," the legal observer noted. "Many of these letters are still out there, and were these letters released, the claim would be immediately debunked.
"However," he added, "any objective observer wouldn't even need to see the letters to know this is all a myth. As Pollard's lawyers have stated in court, by acknowledging in 2015 what his sole 'infraction' in prison was, the Parole Commission itself repudiated the claim made by Studeman.
"In many ways, the sad saga of the Studeman letter, a document whose absurd contents have been disclaimed by the very commission that is now trying to use it as a weapon against Pollard, is emblematic of why Jonathan's battle for justice has always been so uphill. The 14 letters it refers to have never undergone any sort of judicial review. Not only did the government refuse to show them to Pollard's lawyers, but they declined to show it to any third party - including Judge Forrest. Even now, after he already served 30 long years in prison, in their zeal to make Pollard's life as miserable as possible, they refuse to allow ideals like 'truth' or 'justice' to get in their way," he added.
A source close to the Pollards, speaking on condition of anonymity because he was not authorized to speak to the media about the case, stressed that this is only the latest exhibition of "duplicitous mischaracterization" by the government of the real facts of the Pollard case.
On March 3, 1987 - the day before Pollard was to be sentenced - Secretary of Defense Caspar Weinberger submitted a supplemental declaration to the court, which included the following:
"It is difficult for me, even in the so-called 'year of the spy,' to conceive of a greater harm to national security than that caused by the defendant in the view of the breadth, the critical importance to the U.S., and the high sensitivity of the information he sold to Israel ... I respectfully submit that any U.S. citizen, and in particular a trusted government official, who sells U.S. secrets to any foreign nation, should not be punished merely as a common criminal. Rather, the punishment imposed should reflect the perfidy of the individual's actions, the magnitude of the treason committed, and the needs of national security."
It is generally assumed that it was this declaration that convinced the judge to disregard the plea agreement that Pollard had reached with the prosecutors and sentence him to life in prison.
As Lawrence Korb, who served as assistant secretary of defense under Weinberger, and knew him well, later wrote, that memorandum was based on an "almost visceral dislike of Israel and the special place it occupies in our foreign policy."
Some 15 years later, when asked by journalist Edwin Black in 2002 why he hadn't even mentioned the Pollard affair in his memoir, Weinberger's casual reply was, "Because it was, in a sense, a very minor matter, but made very important."
The declassification of numerous crucial documents over the years further confirmed what Pollard has long insisted: He never intended to harm the United States in any way, nor, other than cause some discomfort to some of Israel's sworn enemies, did he cause harm to U.S. interests.
The following excerpt of "Victim Impact Statement," the pre-sentencing court document which was submitted by the prosecution to the sentencing judge in 1987, speaks for itself.
Mr. Pollard's unauthorized disclosures have threatened the U.S. relations with numerous Middle East Arab allies, many of whom question the extent to which Mr. Pollard's disclosures of classified information have skewed the balance of power in the Middle East.
Moreover, because Mr. Pollard provided the Israelis virtually any classified document requested by Mr. Pollard's co-conspirators, the U.S. has been deprived of the quid pro quo routinely received during authorized and official intelligence exchanges with Israel, and Israel has received information classified at a level far in excess of that ever contemplated by the National Security Council. The obvious result of Mr. Pollard's largesse is that U.S. bargaining leverage with the Israeli government in any such further intelligence exchanges has been undermined.
"In other words, this was all about 'leverage' that America had with a close ally," the source said.
Similarly, the 1987 CIA damage assessment of the Pollard case underscores once again the fact that Pollard never spied on or shared classified information about the United States. As the CIA put it: "The Israelis did not request or receive from Pollard intelligence concerning some of the most sensitive U.S. national security resources. The Israelis never expressed interest in U.S. military activities, plans, capabilities, or equipment."
The information Pollard shared was about Israel's sworn enemies, information that America was supposed to - but didn't want to - share with Israel.
The declassified documents confirmed that Jonathan, motivated by a genuine concern for the safety of the Jews in Eretz Yisrael, gave over crucial material relating to grave threats against Israel. This included information about how the Pakistanis were attempting to build a nuclear-capable rocket with a range sufficient to reach Tel Aviv; how the Iraqis were secretly manufacturing nerve gas specifically for use against Israeli urban areas and how the Syrians were in the process of receiving covert shipments of new surface-to-surface missiles that were accurate enough to knock out Israeli air bases for the first time.
"All the documents point to the same conclusion: Jonathan Pollard's activities may have ruffled some feathers in the Middle East, but there was no material impact on U.S. national security," the source stressed.
During oral arguments before the Appeals Court, Judge Reena Raggi cited the Studeman letter as an indication that at least as late as 1995, Pollard still retained classified information, and despite the passage of 20 years, it remains possible that he still does.
In the ruling, the court referenced it as well.
"The Commission did not abuse its discretion in according weight to a 1995 letter from the then-CIA director reporting that classified information had appeared in Pollard's prison correspondence at least 14 times. The fact that Pollard was never charged or disciplined for these communications did not strip the conduct of relevancy in the Commission's assessment of whether to impose special conditions on Pollard's parole," the judges said.
"The justice system completely broke down in this case," the observer said. "The government has been allowed to allege whatever they wished, put someone in prison for 30 years, and continue to make his life miserable, based on those allegations. Yet Pollard has never been allowed to see the evidence being used against him, let alone be permitted to refute the evidence".
One noted attorney, who has been practicing law in American courts for more than four decades, told Hamodia that he was mortified by last week's Appeals Court ruling.
"It is clear that these judges made up their minds long before the oral arguments took place," the attorney who spoke to Hamodia on the condition of anonymity because of the sensitivity of the case, said. "It is frightening to think that any court in the United States would restrict an American citizen's freedom in this manner based simply on the government saying that it was necessary - without any sort of evidence or due process. Our courts now provide more protection for foreign Muslims than for an American Jew. This should be a wakeup call to everyone," the attorney added. "If this can happen to Jonathan Pollard, it can happen to anyone."
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