U.S. Justice On Trial

December 14, 1998 - Irwin Cotler - The Jerusalem Post

For his promised review of Pollard's case, Clinton has invited submissions from his accusers but excluded any parallel defense submissions. The writer is professor of law at McGill University and an international human rights lawyer.

The commitment by President Bill Clinton to "seriously review" the case of Jonathan Pollard should be anchored in two basic principles: first, that Jonathan Pollard committed a serious offense for which he deserved to be punished, and for which he has expressed remorse; and second, that Pollard is being punished for a crime he did not commit, and is being disproportionately punished for the one he did commit.

In a word - and as the indictment reveals - Jonathan Pollard was charged, and subsequently convicted, of one count only: of conveying classified defense information to a foreign government, in this instance Israel.

However, he was never charged, nor convicted, of the crime of treason; nor was there anything in the indictment to suggest that he intended any harm to the US, or sought to benefit anyone other than Israel.

Yet "prosecutorial" sources in the CIA, and the Defense, State and Justice departments over the years have continued to maintain that Pollard was charged with, and convicted of, treason, while media reports - often coincident with presidential reviews - have sustained and amplified this false and misleading allegation.

Regrettably, however, Clinton has invited submissions from these agencies only - the "prosecutorial" group - while excluding any parallel or prospective defense or exculpatory submissions on behalf of Pollard.

This is tantamount to impeachment proceedings in the US House of Representatives - let alone the court of public opinion - hearing only the prosecutor's report from Kenneth Starr, and no representations or defense on behalf of the president. Such a process would be neither serious nor fair.

Moreover, this "prosecutorial" group has not only misrepresented the case against Pollard - which would have been bad enough - but it has obscured, if not covered up, its own denials of Pollard's right to due process. These include:

  • the government's breach of its plea-bargain agreement with Pollard, thereby denying him a fair trial and proportionate punishment;
  • the ex-parte submission by former secretary of defense Casper Weinberger at sentencing, accusing Pollard of "treason," thereby denying Pollard the right to a fair hearing, and whose full contents - never revealed - might prove more incriminating to Weinberger than to Pollard;
  • "prosecutorial" demands that Pollard never be released - by presidential clemency or otherwise - thereby ignoring the fact that Pollard has now entered his fourteenth year of imprisonment for an offense whose median sentence is from two to four years, and constituting a clear denial of Pollard's right to equality before the law;
  • CIA accusations over the years that Pollard had compromised "sources" and "methods" in Eastern Europe - an allegation that was never part of Pollard's indictment and for which no evidence had ever been adduced - but whose continued spread implicates Pollard in the deaths of at least a dozen US informants in the former Soviet Union.

This last accusation is particularly noteworthy because it is a case study of both CIA misrepresentation and cover-up. For while the CIA was accusing Pollard of this most egregious of charges, it knew - as it later became publicly known - that Aldrich Ames, the head of the CIA's Soviet/Eastern Europe Division, had himself been both the architect of those treasonable acts, and the original source of the disinformation against Pollard on those charges.

Only space constraints prevent the full rendition of a pattern of American intelligence blunders metamorphosing as false accusations against Pollard, as occurred once again with inspired leaks by "sources" in the intelligence community on the eve of Clinton's visit to Israel.

In short, if Clinton's review is to be serious, it must be fair; and if it is to be fair, Pollard should, at the very least, be granted the right to a full answer and reply - the right to confront his accusers - the right to rebut adverse evidence and to adduce his own evidence and argument.

The characterization of the Pollard case as "a complete and gross miscarriage of justice" by United States Federal Appellate Court Judge Stephen Williams (Pollard's appeal was rejected 2-1 on procedural grounds) should not now characterize a serious presidential review.

The president is the best witness of the dangers of an ex-parte review, based only on "prosecutorial" allegations that may be false, incomplete or misleading.

American justice - not just Jonathan Pollard - is on trial.