Attorney to President's Counsel: Facts Show President Failed to Do Justice

David Kirshenbaum, Esq.
3308 Fourth Street
Oceanside, NY 11572
(212) 782 2139 (Phone)
(212) 782-2141 (Fax)

August 4, 1994

VIA MAIL AND FAX (202) 456-2882

Lloyd N. Cutler, Esq.
Special Counsel to the President
The White House
Washington, D.C. 20500


Jonathan J. Pollard

Dear Mr. Cutler:

Thank you very much for taking the time to respond to my letter regarding Jonathan Pollard. While I very much appreciate your response, I have a difficult time reconciling your explanation of the President's decision, not only with the particular facts of the Pollard case, but more so with the original statement made by the President in rejecting Pollard's petition.

The Pollard case is surely not typical of the "hundreds of petitions for executive clemency" which have been submitted to the President during the past eighteen months. The Pollard affair is not, as you seem to suggest, simply a case of someone who has received a disproportionately harsh sentence. Clearly, for example, there are many individuals who commit drug offenses who receive punishments far more severe than the average penalty imposed for such a crime. And there are a good number of drug offenders who have received, and will continue to receive, penalties more severe than that imposed in certain cases of murder. But one of the many distinguishing factors in the Pollard case is that Pollard is in a party of one. Nobody sentenced before or after Pollard who spied for an ally or even a neutral country received a sentence even remotely close to life.

In addition to the fact that Pollard has been singled out from all others who have committed similar offenses, what has added to the widespread anger and great consternation about Pollard's life sentence are the following factors:

(i) Strong breach by the government of its written plea agreement with Pollard and prosecutorial malfeasance by government lawyers which, in the opinion of Judge Stephen Williams, resulted in "a fundamental miscarriage of Justice."

(ii) Strong suspicions about the veracity of the classified damage assessment of former Defense Secretary Caspar Weinberger, who we know grossly misstated the facts in the redacted non-classified memorandum to the sentencing judge in the Pollard case, and who later perjured himself in testimony before Congress.

(iii) The confirmation earlier this year by Bobby Ray Inman of Pollard's long-held contention that the United States withheld critically important information from Israel following Israel's bombing of Iraq's nuclear reactor.

(iv) The walls of classifications erected by the government to shield facts not only from the public, but also from Pollard and his counsel. In addition to the Weinberger memorandum, the government refuses to release the following documents or information:

(v) Les Aspin's letter to the President making the preposterous charge that Pollard tried to transmit classified information in 14 letters from prison;

(a) the 14 letters referred to by Aspin, even in redacted form;

(b) the recommendations to the President concerning Pollard's petition from Attorney General Reno and former Deputy Attorney General Heymann; and

(c) the role played by Aldrich Ames and other officials in the intelligence establishment in the disinformation campaign to place the blame on Pollard for the crimes committed by Ames.

These are some of the reasons why Pollard's petition, unlike the others before the President, enjoys the support of both U.S. Catholic Cardinals and Israel's Chief Rabbis, the European Parliament and members of the U.S. Congress, Nobel Peace Prize laureate Elie W[ie]sel and former Soviet Refuseniks, U.S. city councils and state legislatures, Hollywood personalities, religious figures such as Robert Drinan and Benjamin Hooks and conservative Republicans such as Pat Robertson.

Given all the national and international opprobrium surrounding the Pollard case, Prime Minister Rabin's public request that Pollard's life sentence be commuted to time served, the lingering distracting influence of Pollard's continued imprisonment on U.S. - Israel relations, the gross disproportionality of Pollard's draconian sentence and suggestions of government misconduct in the Pollard affair, one would have thought and expected that the President would act to bring this sorry chapter to a close. But the president did not simply passively fail to right a wrong. He became an active participant in the perpetuation of this injustice.

Notwithstanding the explanation you gave for the President's decision, Mr. Clinton's denial of Pollard's petition was not, in fact, originally presented in terms of the President's exercise of self-restraint in handling appeals for clemency. If we can analogize to petitions to the Supreme Court, this was not simply a case of the denial of certiorari in which the Court's denial has no precedential value.

In considering Pollard's petition, the President had a number of options. The President could have granted Pollard's petition. He could have denied the petition on the kinds of philosophical grounds suggested in your letter, but have still passed the word, either explicitly or implicitly, that he recognized the merit in Pollard's petition without comment.

The President, however, not only denied Pollard's petition, but he then proceeded to explain his rejection based, not on philosophical grounds having to do with self-imposed restraints on the exercise of executive clemency, but on the merits of Pollard's case. By so doing, the President placed his imprimatur on Pollard's clearly aberrant life sentence.

In speaking of the harm Pollard's action purportedly caused, the President ignored the fact that Pollard was never accused of acting to injure the United States. Indeed, nine years after Pollard's arrest, nobody has yet to explain or cite one example of how Pollard actually hurt this country, certainly not in any way that would begin to justify a life sentence.

And the President's statement on March 23 took no cognizance of the fact that even the out-of-court leaks and accusations leveled against Pollard, accusing him of somehow being inadvertently responsible for the deaths of U.S. agents, were wholly contrived and without foundation. We now, of course, know that the deaths of U.S. informants in the Soviet Union and the associated intelligence disasters suffered by the United States were directly attributable to the treachery of Aldrich Ames.

The President's suggestion that he rejected Pollard's petition because of the need for deterrence puts the Presidential seal of approval on a system of justice that, as I mentioned in my earlier letter, very wrongly singles out one and only one individual out of many for particularly harsh treatment.

In immediately accepting the recommendation of Janet Reno over that of Philip Heymann, and in rubberstamping the opinions of a highly discredited intelligence community in announcing the rejection of Pollard's petition, the President not only failed to do justice in 1994. He also severely hurt Pollard's chances even for parole in November 1995.

You asked that I judge the President on his entire record. Yet as one who had such high hopes for this President, his handling of the Pollard case is a watershed event. He dealt with a critically important issue in the worst possible way. I very much want to feel again the way I used to about Bill Clinton.

Very truly yours,

David Kirshenbaum

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