Does The Constitution Support Double Standards?

April 1997 - Alex Rose - Midstream Magazine

A report which appeared on page 2A in the September 26, 1996 edition of USA Today commenced with "once again, a long-standing U.S. ally has been implicated in a case of purloined U.S. military secrets." A similar report preceded the statement in a BBC news release on November 24, 1995 concerning another espionage case.

Both of these cases need to be considered in their remarkable similarity to that of Jonathan Pollard who is in his 12th year of incarceration for spying for Israel. There is one major difference. Whereas Robert C. Kim stands accused of passing 50 classified documents to South Korea, both the U.S. and the South Korean governments have tried to play down the significance of the event. Likewise, there has been an extraordinary granting of an "other than honorable" discharge given to Lt. Commander Michael Schwartz [a non-Jew], who pleaded guilty to espionage for "willfully delivering national defense information on documents and computer diskettes to officers of a foreign naval service 'with intent or reason to believe it would be used to the injury of the United States or to the advantage of the kingdom of Saudi Arabia.'"

Jonathan Pollard received a

life sentence

with a

recommendation that he never be paroled

for spying on behalf of Israel. There were no public expressions of U.S. Government outrage at Saudi Arabia's "arrogance" and "ingratitude" - epithets reserved for Israel at the time of Pollard's arrest. Nor has the U.S. administration called into question the loyalty of the entire Korean community.

In comparing the cases of Michael Schwartz and Jonathan Pollard, there is every reason to raise the following questions:

  • On the issue of third-party compromise, who may have seen or might be able to see the information Schwartz gave to the Saudis?
  • Have the Saudis been asked for a formal apology? Have they promised not to recruit any more American intelligence officers?
  • Have the Saudis promised either to close or to restructure the intelligence unit responsible for the affair?
  • Have the Saudis agreed to allow the participants to be questioned by American counter-espionage authorities?
  • Have the Saudis returned all the stolen documents?
Perhaps the answers are all negative with the explanation offered through a Washington Post editorial of July 12, 1995 concerning the bombing of the Dhahran facility. Included is a statement, "In our view, the suggestions of American reluctance to offend the culturally delicate Saudis by demanding more attention to the security of Saudi Arabia's American protectors amounts to an intelligence failure of a profound sort."

No doubt, the same type of reluctance to "offend" the Saudis was the principal reason why Schwartz has not suffered Pollard's fate. He enjoys total freedom, his only loss being dismissal from the Navy and his pension rights.

Not prosecuting Schwartz calls into question CIA arguments that Jonathan Pollard cannot be released because he knows too much. This is an absurdity. Schwartz was spying until recently whereas Pollard has been in prison for more than 11 years! How is it that Schwartz is not a threat to national security, but Pollard is?

Not prosecuting Schwartz undercuts any attempt by the U.S. Government to justify its actions by claiming that the information he provided Saudi Arabia was "less sensitive" than the information Jonathan Pollard gave to Israel. Clearly, some punishment was therefore warranted beyond his mere "honorable discharge". The fact that this did not occur demonstrates that extra-legal considerations came into play; i.e. politics were allowed to corrupt the U.S. judicial system.

Joseph DeGenova, the U.S. attorney who prosecuted Jonathan Pollard has attempted to justify his cruel and harsh treatment by claiming that individuals caught spying for close allies like Israel should actually be punished more harshly than those caught spying for enemies, since there is a greater "danger" of an individual to feel more predisposed to help friends. If there is any merit to this logic, it has been totally lost in the Government's refusal to prosecute Schwartz vigorously rather than to have freed him with a "less than honorable discharge".

The Jewish War Veterans of the U.S.A. [JWV] whose lack of sympathy for the plight of Jonathan Pollard is on record, were moved to be reviled by the Schwartz affair. In a statement released on the subject, the JWV includes rhetoric such as "We believe that when compared to other crimes of espionage by Navy personnel, both to enemy and friendly governments, the punishment is a farce. In each of the other cases, harsh prison sentences, including life-time sentences, were meted out" and "Questions such as what information was passed to the Saudis, who in the Saudi Royal family knew of this espionage and what was the level of classified material provided to Saudi Arabia, must be addressed."

JWV believes that further investigation of this matter must be initiated.

In their book, The Secret War Against the Jews, John Loftus and Mark Aarons describe the betrayal of Israel by the U.S. by making reference to the period of the Camp David Accords, noting that "Both Egypt and Saudi Arabia continued to get information about Israel's military secrets until 1994. The Saudis passed on the information to other Arab states, as well as the P.L.O."

Could it be that Pentagon officials declined to prosecute Schwartz because they feared this unholy intelligence exchange with Saudi Arabia would be revealed in court?

Interestingly, the same intelligence and defense agencies who rescued Lt. Comdr. Schwartz from prosecution are the very ones who have counseled President Clinton to adhere to a policy of "selective prosecution" towards Jonathan Pollard.

A reading of The Lawless State by Halperin, Berman and Marwick speaks volumes to the crimes of the U.S. intelligence agencies. What the authors convey is that the secret bureaus have been far from mere instruments of presidential whim, but have operated on a complex interrelationship,

divorced from law

. They quote former Senator Howard Baker as aptly saying that they function on a "common web of perceived authority." Further, the authors explain that the limits on these agencies are virtually self imposed. Former CIA Director Richard Helms is on record as proclaiming, "The nation must to a degree take it on faith that we too are honorable men devoted to her service."

In his monumental work, The American House of Saud, investigative reporter, Steven Emerson demonstrates how the State Department and the CIA have deliberately misled Congress in its dealings with Saudi Arabia. On one occasion, the State Department was willing to declassify all references to the Arab-Israel conflict and Israeli policies as factors effecting Saudi production; but material relating to internal Saudi instability, such as Islamic dissidence, remained classified. Since the Senate Foreign Relations Committee refused to accept partial declassification, the hearings were not published.

One wonders how the American interest has been served by the success of the Saudis in getting a subcommittee report censored [Chapter 8]. "Never before had a foreign power been able to interfere with an investigating committee."

Alan Friedman's The Secret History of how the White House Illegally Armed Iraq brings into play further facets of governmental corruption. He concludes with an observation that "There is a tendency today in politics and the media to shrug off government malfeasance on the grounds that we are so inured to such behavior that it almost doesn't matter"; and how dangerous it is to think that way. The watchdogs of Western democracy should not "abdicate their responsibilities as did those government officials who should now be placed under investigation."

Little wonder then that Appellate Court Judge Stephen Williams, in casting his


opinion on the rejection to vacate Pollard's guilty plea on March 20, 1992, resorted to Shakespeare to describe the government's conduct in not complying with any of its promises:

"And be these juggling fiends no more believ'd,
That palter with us in a double sense;
That keep the word of promise in our ear,
And break it to our hope." [Macbeth V, vii, 48-51]

When President Clinton recently rejected Jonathan Pollard's request to commute his sentence to time served, he once again resorted to time worn clichés in describing Pollard's crime, "The enormity of Mr. Pollard's offenses...the damage done to our national security.... the continuing threat to national security that he posed...make the original life sentence imposed by the court warranted."

With the passage of over a decade one would have thought that some evidence of the dastardly deed would have manifested itself in some finite form - a war, a revolution, a collapse of the economy etc. None of these disasters have occurred and all we have is a situation as described by Harvard Law Professor and human rights activist, Alan Dershowitz time and again, "In a democracy, it is dirty pool for the government to make charges and hide behind the curtain of national security when asked to substantiate them. If charges cannot be substantiated publicly, then they should not be made publicly."

Certainly, the President has not demonstrated the credibility of claims for built in checks and balances which have always been argued as the highlight of the American Constitution. For President Clinton to state that he is not legally authorized to make any positive decision on Jonathan Pollard's case unless the Justice Department recommends commutation is simply not correct. The President's authority to grant clemency [reprieves and pardons] stems directly from the Constitution [Article II, Section 2]. It may not be restricted even by Congress, let alone any Department of Justice regulation.

The father of the Black Consciousness movement in South Africa, who "died" for his beliefs in prison in 1977, one Stephen Bantu Biko, a man of extraordinary vision, talent, comprehension and leadership, had this to say:

"I regard the British Parliament as the most democratic institution in the world, and the independence and impartiality of its judiciary never fail to arouse my admiration. The American Congress, that country's doctrine of separation of powers, as well as the independence of its judiciary, arouses in me similar sentiments."

It is befitting to have thoughts of Stephen Biko in considering Jonathan Pollard. Both suffered terrible abuses in prison. Perhaps the one difference lies in what Biko alluded to. Pollard has a Congress available to him, whereas Biko did not.

Given the facts, surely the time has come to call for a full Congressional investigation in regard to the Schwartz case - how it was handled and why - what documents were compromised - who in Saudi Arabia was responsible - whether the U.S. demanded the return of all documents and what "punishment" was demanded of the Saudi officials involved in the affair.

In summary, justice must be done. Only in this way will the much touted system of checks and balances have meaning. The public is entitled to a Congressional investigation probing the rational permitting a Saudi spy [Schwartz] to act with impunity while an Israeli spy [Pollard] is treated as an enemy agent. Three Spies, three countries and two different standards cannot help but leave one with the distinct feeling that there is a double standard in need of challenging.

In the December 1996 Middle East Quarterly, Congressman Benjamin Gilman, who has visited the incarcerated Jonathan Pollard, said:

"I don't know that it's the province of our committee [to further review the disparity between Pollard's sentencing and others], since it's a judicial question, but I think that it needs review by the appropriate committee---and the Administration."

Alex Rose is member of the executive board of AFSI [Americans for a Safe Israel] and the NJ representative of CAMERA [Committee for Accuracy in Middle East Reporting in America].