Theodore B. Olson Rebuts NCRAC Disinformation

Letter to NJCRAC - December 23, 1992

Posted to the Web: July 26, 2001

Justice4JP Prefacing Note

The following letter written by Theodore Olson, then Jonathan Pollard's attorney and today Solicitor General of the U.S., takes the Jewish leadership of NJCRAC to task for distributing a memorandum on the Pollard case to its member agencies which misrepresents the issues, distorts the facts and misquotes him extensively. In this letter, Olson's addresses issues ranging from anti-Semitism to the myth of parole, to Jonathan Pollard's motive. It is one of a series of letters written to Jewish leaders to upbraid them for their "one-sided" misrepresentation of the case. Olson writes:
"Your memorandum overlooks the massive evidence of injustice and unfairness in the treatment of Mr. Pollard and the fact that his sentence is utterly out of scale with that imposed on any other individuals who gave information to an ally in order to save lives."
The complete text of the letter follows.
Gibson Dunn & Crutcher Lawyers
1050 Connecticut Ave. NW
Washington DC 20036-5306

December 23, 1992

Mr. Phil Baum
Mr. Jerome A. Chanes
Natl. Jewish Community Relations Advisory Council [NJCRAC]
443 Park Avenue South
New York, New York 10016-7322

Re: Jonathan J. Pollard

Dear Mr. Baum and Mr. Chanes:

I have been supplied with a copy of your memorandum of November 30, 1992 to NJCRAC member agencies concerning your meeting with me on October 21, 1992. 1 am very disappointed with your memorandum for several reasons:

  1. I had understood that our meeting was to be an off-the-record briefing. I do not recall being informed that you intended to memorialize your perceptions of the meeting along with out-of-context quotations and to distribute those remarks to member agencies. Had I known of your intentions, I would have concentrated on presenting a complete summary of Jonathan Pollard's positions on the commutation issue rather than allowing the time to be used almost exclusively for responding to hostile questions. Because the meeting was focused entirely on points advanced by persons who have historically been opposed to supporting Jonathan Pollard, the meeting and thus your memorandum is quite one-sided.

  2. You did not extend me the courtesy of sharing your summary with me in advance of its dissemination to give me an opportunity to correct any errors and misimpressions. Had you been interested in a fully accurate and fair portrayal of these issues, you surely would have done so. Distribution of this memorandum without any effort to discuss it with me and without even sending me a copy betrays your intention to advocate your point of view rather than to present an objective and balanced presentation of the issues. I had been cautioned in advance not to expect fair treatment and urged not to respond to your invitation. Unfortunately your memorandum and the manner in which it was prepared confirms what I was told about your lack of objectivity.

  3. Your summary mischaracterizes Mr. Pollard's posture before the Supreme Court. While it is certainly true that the Supreme Court accepts few of the cases submitted to it, Mr. Pollard's petition presented important and compelling legal questions, which your memorandum does not discuss. And, while it is also true that this Court has not been sympathetic recently to collateral attacks on sentences resulting from plea bargains, there was a real possibility that if the Court had taken the case, it would have agreed with Mr. Pollard that the sentencing judge's actions should have been scrutinized under a more exacting standard. Had there been such a review, there was a substantial likelihood that Mr. Pollard's sentence could well have been overturned. By focusing exclusively on the procedural posture of the case, you overlooked the more important substantive legal issues, i.e., the fact that Mr. Pollard's disproportionate sentence was the direct result of the Government's violation of its plea bargain with him.

  4. 1 did not state that there would have to be unanimity among Jewish organizations for Mr. Pollard's commutation application to be successful. I simply stated the obvious fact that there are strong reasons favoring a commutation of Mr. Pollard's sentence and that we were anxious, on his behalf, to receive the support of as many individuals and organizations as possible. However, the unwillingness of some organizations to support a humanitarian act or commutation by the President certainly can undermine Mr. Pollard's chances of success.

  5. On the question of anti-Semitism, you correctly stated only a segment of my remarks and did not capture the gist of my point. I acknowledged that anti-Semitism could not be established in this case by clear, compelling and objective evidence. It seldom can. But I added that there are many in Government, who do not wish their identities to be revealed, who do believe that the Government's treatment of Jonathan Pollard was affected by anti-Semitism.

    I also emphasized that Jonathan Pollard's actions, however misguided they may have been, were motivated by a desire to alert the people of Israel to the actions of nations sworn to destroy it. I stated my conviction that all individuals who care about human rights should be sensitive and concerned over excessive punishment of someone who had acted to save the lives of an historically persecuted people, Your summary ignores this point.

  6. With respect to solitary confinement, I stated that it is not necessary for Mr. Pollard to he in solitary confinement in the nation's most closely guarded prison. However, if he is going to be held in that institution, it is necessary that he be protected from others who would harm him.

  7. Your reference to the government of Israel is confusing because it was wrenched from its context. I stated that there were a variety of reasons, after the fact, why the Government of Israel may not have wished to associate itself with Mr. Pollard's conduct. However, the fact is that Mr. Pollard was transmitting information to persons whom he had every reason to believe were fully authorized representatives of the Government of Israel. And the information he supplied was, indeed, transmitted to Israel. Certainly the Government of Israel should, and in fact has, come forward to aid Mr. Pollard's effort to seek a commutation of his sentence. We would hope that you and the NJCRAC member agencies would feel as sympathetic as Israel's last two prime ministers.

  8. With respect to the level and nature of advocacy on behalf of Mr. Pollard, I simply acknowledged that it was entirely possible that some supporters of Mr. Pollard may have over-pleaded their case. I do not know this to be true, but stated that I understood how that could happen given the growing number of people who support his cause, most of whom are not subject to our control. However, I emphasized that the indisputable facts of Mr. Pollard's situation warranted the relief that we were seeking and that any exaggeration or hyperbole that may have occurred had to do with peripheral issues and could not distract from the central point that justice requires that Mr. Pollard be released from prison.

  9. With respect to the issue of ex parte communication with Judge Robinson, I believe that I said that I did not know whether there had been any ex parte communication with Judge Robinson, but that Judge Robinson had categorically denied such an allegation and that, absent clear evidence of such conduct, there was no point in focusing on that subject. It was simply distracting from other considerably more compelling issues. There is no point to continue in discussing this issue. It is legally and substantively irrelevant and I do not know why it is so important to you.

  10. As to the question of Mr. Pollard's remorse, I pointed out that Mr. Pollard's 60 Minutes statement was many years ago and had been superseded by many explicit statements by him of remorse. I also said that his statement on 60 Minutes in no way excuses the Government's response to it: the deliberate violation of its plea agreement with Mr. Pollard. Your concern with ill-conceived statements by Mr. Pollard several years ago is another red herring. Mr. Pollard has acknowledged that his conduct was wrong and asks, not that he be forgiven, but that his punishment be brought to an end. Dwelling on statements he made six years ago simply avoids today's issues.

  11. The Government has recently taken the position that parole may be considered in 1995. But the essential point is that the law enforcement and intelligence agency officials who will be given the opportunity to express themselves on the subject have indicated that they will oppose parole. The experts with whom we have consulted agree that parole is a virtual impossibility under these circumstances. The emphasis on the possibility of parole avoids addressing the circumstances and fairness of Mr. Pollard's incarceration. The fact is that he has been punished enough now.

  12. Your memorandum overlooks the massive evidence of injustice and unfairness in the treatment of Mr. Pollard and the fact that his sentence is utterly out of scale with that imposed on any other individuals who gave information to an ally in order to save lives. I am enclosing the memorandum we filed on December 11 in support of Mr. Pollard's commutation application.

As a matter of fundamental fairness, you should circulate this letter and the enclosed memorandum to the member agencies to whom you circulated your November 30 memorandum.

(signed)
very truly yours,
Theodore B. Olson

TBO/hlv Our file no: T 72548-00001

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