These Juggling Fiends'

Editorial: 1992 Appeal Denied

March 27, 1992 - Forward

As the case of Jonathan Pollard winds its way through the appeals courts, it is becoming increasingly clear that at the bottom the outstanding issues are political. Not that we'd want to belittle the relevance of the work of Pollard's lawyers or of the further appeal that may be made to the highest bench. But as the case has been winnowed by last week's opinions from the U.S. Court of Appeals for the District of Columbia Circuit, it becomes clear that if any mistakes were made, they were not made by the judge who took Pollard's guilty plea and meted out his life sentence.

There had been suggestions that the sentencing judge, Aubrey Robinson, was compromised because he had allegedly received out-of-channels information about the material Pollard sent to Israel. Supposedly the judge learned that some of the secrets Pollard passed to Israel referred to Israel's dealings with South Africa. Judge Robinson, as a black man, might have been particularly sensitive to such evidence. Such was the opinion of Arthur Goldberg, who talked with Judge Robinson, according to an affidavit of Alan Dershowitz. But this affidavit was not even credited by the one judge who sided with Pollard on appeal, Stephen Williams.

What Judge Williams does credit, in a noteworthy dissent, is the argument that the federal prosecutor violated the spirit, and on one key point even the letter, of the deal under which he got Pollard to give up his right to a trial and to plead guilty.

This is no small matter. In his dissent, from which we print excerpts in the adjacent columns, Judge Williams goes through the prosecution's sentencing memorandum, paragraph by paragraph, detailing the slyness by which the prosecutor sought to evade the obligations of the contract he had made with Pollard.

To get language strong enough to describe the offensiveness of the prosecutor's behaviour in the Pollard plea bargain, the judge had to reach for his Shakespeare, whence he quoted Macbeth's curse against the witches:

And be these juggling fiends no more believ'd,
That palter with us in a double sense;
That keep the word of promise to our ear,
And break it to our hope.

Nor, incidentally, does the prosecution get much of a lift from the two judges - Lawrence Silberman and Ruth Ginsburg - who sided against Pollard. They just figure that the "hard-nosed dealings of the prosecution weren't enough to justify a new hearing, according to various technical precedents in case law. It may be on this point that the Supreme Court will have to get involved.

Meanwhile, Pollard will be held, presumably in the solitary state in which he has been confined for most of the time since he was arrested in 1985, and the rest of us will be left to consider just what was the animus that led the Justice Department to deal with Pollard in a way that prompts a judge to question the prosecution's very integrity.

The clue, in our view, is to be found in the decision of President Reagan's defense secretary, Caspar Weinberger, to use the word "treason" to describe Pollard's crime. Treason is the most heinous of all crimes, and our Constitution prohibits Congress or courts from defining treason in any way other than as waging war against the United States or adhering to its enemies. So when no less an officer as the secretary of defense invokes in a written document the word "treason" to describe Pollard's crime, it can suggest only that he wants the court to regard Israel as an enemy.

Such views are not surprising coming from Mr. Weinberger, whose hatred of Israel often overrode better judgment. But we find it hard to imagine that Pollard would have been handed a life sentence if the administration's star witness hadn't been talking about Israel as though it were an enemy state, not when spies for the Soviet Union were receiving lighter sentences.

One job of the courts, however, must be to remain unswayed by these kinds of passions. It may be that the Supreme Court will be asked, and agree, to untangle this knot. It may be that Pollard will spend the rest of his days in his solitary basement cell. Or it may be that a future president will conclude that it is no longer dangerous for a man in possession of the secrets Pollard knows to go free and will then have the courage to explain to a troubled public that although Pollard committed an extremely serious crime, he was dealing with a friend of America and has served enough time.