Should the president commute the sentence of spy Jonathan Pollard?

December 21, 1998 - Insight Magazine - Alan M. Dershowitz

As President Clinton considers whether to release Israeli spy Jonathan Pollard -- who has already been imprisoned longer than anyone who pleaded guilty to spying against the United States for an ally -- he should heed the lessons of his own case. Clinton has, quite properly, railed against the Kenneth Starr Referral for its one-sidedness and inaccuracy. The accusations being leveled against Pollard suffer from the same defects.

On the basis of rumor, innuendo and classified information, Pollard's enemies are providing an entirely false and misleading picture of his crimes. And these undocumented accusations are being accepted by many as gospel. Here are some of the questionable charges being circulated:

• Joseph diGenova, who prosecuted Pollard -- and who, pursuant to a plea bargain, recommended a sentence of less than life imprisonment -- now claims that Pollard "put at risk the lives of seamen, Air Force men, Marines and Army personnel of the United States all over the world." This is flat-out false, and I challenge diGenova to provide evidence that even a single person died as a result of Pollard. DiGenova himself has changed his story at least three times.

  First, he said that Soviet citizens who were spying for the United States -- not U.S. soldiers -- had been placed at risk. Then he acknowledged -- in a public debate with me -- that no one actually had been placed at risk.

  And now, on the basis of no new information, he makes the outrageous claim that U.S. soldiers were put at risk. I have been assured, by the highest levels of our intelligence community, that no one has died as the result of Pollard's actions. It originally was believed that the names of some Soviets who had spied for the United States were disclosed by Pollard, but now it is known for certain that these names were turned over to the KGB by Aldrich Ames, not Pollard.

• The New York Times editorial page appears to have accepted the diGenova assertions hook, line and sinker and even has expanded them to include the assertion that "some of the material [taken by pollard] may later have fallen into Russian hands through KGB operatives in Israel," thus "endangering informants." There is nothing in the public record to support any of these claims, and there is much to suggest that they are without foundation. A great newspaper should not buy into the CIA's modus operandi, which is to keep the evidence classified, to leak it to selected sources and then to say, "Trust us." If the government is to maintain that these allegations against Pollard are true, it must disclose the evidence.

• DiGenova has claimed that the information Pollard "knows today" still is secret and he poses "a continuing threat to the security of this country." Yet in a televised debate with me, diGenova agreed that enough time had passed to declassify the records of the case without in any way endangering our national security. The truth is that Pollard's information is 13 years old and he knows nothing that would endanger our security.

• Many of Pollard's enemies are saying that he did it for the money. False. He provided Israel with classified documents which he believed were essential to Israel's security, out of misguided ideology, not financial motivation. He asked for no money when he first provided the material. It was his Israeli handlers who insisted on giving him relatively small amounts of money. That is what spy handlers do to eliminate any moral responsibility in the event the spy is caught. I don't know anyone who believes that if Syria or Iraq had offered Pollard $1 million he would have given them anything.

• Some in Congress have said that Pollard provided information about China and South Africa and that he was willing to sell information to other countries. That, too, is false, as a review of the file will confirm.

• Some have argued that there must be another Israeli spy in our government, since Pollard was given specific instructions about what to look for in the files. It is believed that some within the intelligence community want to hold Pollard in prison until he discloses the identity of "Mr. X." But it is absurd to assume that the Israelis would have told an amateur such as Pollard the name of any super-secret Israeli mole, if one exists.

• The New York Times pointed out that the Israeli government has refused to return the most sensitive documents that Pollard gave it. Even if true, Pollard has no control over the Israeli government's actions and should not be held hostage to them.

• Some have said that Pollard continued to disclose classified material while he was in prison. That is impossible, since Pollard's phone calls, letters and visits have been monitored.

The last time Clinton reviewed the case, he heard from only one side -- the prosecutors, intelligence operatives and defense people who wanted to keep Pollard in prison for the rest of his life. Indeed, a recommendation more sympathetic to Pollard was written by Philip Heymann, then the No. 2 person at the Department of Justice. As far as I know, the president never saw the Heymann memorandum.

This time he should listen to both sides. He should obtain the memorandum from the Justice Department, listen to the arguments of Pollard's advocates and make an assessment based on all the evidence -- not just the analog of the one-sided Starr Report. A full and fair review cannot be based on advocacy by one side. There are two sides to this dispute, and both should be heard.

Clinton also should review the unfair tactics employed by the prosecution in this case. They broke their plea bargain to Pollard. In the plea bargain, the government promised not to seek life imprisonment, but the prosecutor then double-crossed Pollard by submitting an affidavit from then-secretary of defense Casper Weinberger which demanded the harshest possible penalty -- life imprisonment.

This and other double-dealing led a judge of the Court of Appeals to characterize "the government's breach of the plea bargain [as] a fundamental miscarriage of justice." The two other judges strongly implied that the life sentence was too harsh but declined to interfere on procedural grounds. Now the president has an opportunity to correct this miscarriage of justice.

One indisputable fact is in the public record: The U.S. government officially took the position at the time of the plea bargain, after assessing all the damage, that Pollard's actions did not warrant a sentence of life imprisonment. Pollard pleaded guilty -- thus sparing the government a long trial at which secret information inevitably would have been disclosed -- in exchange for the promise not to seek a life sentence.

It is illegal and immoral for government officials now to break the government's promises and change its position.The government must stick to its promise and continue to maintain that a sentence of life imprisonment is disproportionately high for Pollard's crime. It also is wrong for the director of the CIA -- whose job is information gathering and not policy making -- to try to influence the president's decision by threatening to resign if Pollard were to be released. Pollard should not receive the same sentence as Ames -- who did endanger lives and national security for money.

Our system of justice is based on proportion. It also is based on the U.S. government keeping its promise. Finally, it is based on the due-process right of every imprisoned person to confront those who are making questionable claims about the damage he caused, rather than have his imprisonment continue on the basis of selectively leaked one-sided allegations that may well be false, overstated, incomplete or misleading.

The liberty of every American is placed in jeopardy when our government does not play by the rules and keep its word. Justice demands a fair review of the entire Pollard case, including the plea bargain. I am confident that such a review will result in Pollard's release.