Clemency For Jonathan Pollard

Arguments are now being presented to President Clinton for and against clemency in the case of Jonathan Pollard. The questions involved are complex, emotional and not easily answered. The Post has voted "no" on the clemency issue (editorial Dec.2, 1993). I think the Post is wrong.

I was involved in the early stages of the Pollard case as legal counsel for Aviem Sella, the Israeli air force officer who was implicated in the affair. I withdrew from his representation for reasons that are not related to this article. I believed then as I do now, that Jonathan Pollard committed a grave wrong and deserved appropriate punishment. Virtually none of those who currently support presidential clemency for Pollard defends his lawbreaking. Pollard himself has long since admitted his guilt, explicitly recognized the harm he caused to a variety of interests and acknowledged the gravity of his wrongdoing. Though Pollard was eventually given sums of money on the initiative of his handlers, a standard procedure to compromise operatives, it is generally recognized that money was not the motive for Pollard's decision to transmit information to Israel.

Since Pollard's imprisonment, interest in his case among non-Jews as well as Jews has not subsided, but grown. Organized support has been a factor, but not the controlling one. I believe the persistent and now widespread concern about Pollard's fate stems from the fact that the most significant of the documents that Pollard gave Israel a decade ago are known to have contained information about Iraq's growing capacity for nuclear, chemical and biological warfare. These weapons, as no one any longer has reason to doubt, were meant first of all for use against Israel.

This life-and-death information about the potential for a human conflagration in the Mideast was deliberately withheld from Israel by the US Defense Department. Americans who know these facts are not shocked that Pollard tried to do something about the situation, though they unambiguously condemn the means he chose. By the same token, they are deeply disturbed that the US government, in possession of this deadly knowledge, chose to remain silent.

The problem of silence has been one of the central ethical dilemmas of the post-Holocaust 20th century and is ever-present in the minds of those who try to think seriously about our national and individual duties to one another. It is therefore no surprise that the Pollard question does not die.

This case does not turn on issues of fairness, though in fact there has been great unfairness here. The Department of Justice promised Pollard, in exchange for his guilty plea, to restrain its prosecutorial rhetoric in connection with his sentencing. The department failed to do this in a number of particulars, most conspicuously by presenting the sentencing judge with a crucial affidavit from the Secretary of Defense, Caspar Weinberger, accusing Pollard of treason, thus misusing the single most inflammatory word in the criminal lexicon. Pollard did not commit treason and was not charged with treason.

Pollard is also the only offender in American history to be given a life sentence for aiding an ally. In still another indication of the disproportionality that has marked this case, Pollard has already served a longer term than any of those convicted of illegally providing information to a friendly nation- eight years, most of it in solitary confinement, at the maximum security prison in Marion, Illinois.

All three judges of the court of appeals panel considering Pollard's appeal of his sentence said that the prosecutors' behavior raised serious questions of fairness.

The two-judge majority of the District of Columbia court of appeals that voted against Pollard emphasized that his late appeal required him to meet much higher standards of proof of prosecutorial misconduct than would have been the case if a timely, direct appeal had been filed.

Dissenting judge Stephen Williams, said that applying even the most stringent standards to Pollard's claim, the government's actions were such a "fundamental miscarriage of justice" that the sentence should be overturned.

All these questions are serious ones, but it seems to me that what is most important about the Pollard case is the sense it conveys about this country and its president. Peacemaking in the Mideast has often been made more difficult by Israel's uncertainty about whether American policy makers understood its acute fears for survival and similar fears on the part of friends of Israel all around the world. It is partly because of confidence in President Cllinton's understanding of the nature and roots of these fears that the Israeli electorate accepted Prime Minister Rabin's decision to begin the process of negotiating a permanent peace with the Palestinians.

That process, in addition to the fundamental interests of justice involved in the Pollard case, will be advanced if President Clinton's decision reflects not only his sense of compassion and fairness but also his awareness of the special history that burdens all efforts to achieve a Mideast peace.

Leonard Garment, a lawyer, was a Special Presidential Assistant in the Nixon Administration.