The Pollard Case and American Justice

The Globe and Mail (Toronto) - January 19, 1999 - Irwin Cotler

US Secretary of State Madeleine Albright has advised President Bill Clinton that there are no "compelling foreign policy considerations" that would justify clemency for Jonathan Pollard, the former US Navy analyst convicted in 1985 of spying for Israel.

But there are two important principles of justice that should guide Mr. Clinton's commitment, given last fall to Israeli Prime Minister Benjamin Netanyahu to "seriously review" the case of Jonathan Pollard. 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.

Mr. Pollard was charged with , and convicted, of one count only: of conveying classified defense information to a foreign government, in this instance Israel. 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 inspired media leaks - 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.

It is as though an impeachment trial in the US Senate - let alone the court of public opinion - were to hear 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.

What's more, over the years this "prosecutorial" group has obscured, if not covered up, its own denials of Pollard's right to due process. These include:

* the government breached its plea-bargaining agreement with Pollard, thereby denying him a fair trial and proportionate punishment. For instance, it said it would not ask for a life sentence but effectively did so by falsely characterizing his act as treason.

* part of the misleading ex-parte submission by former secretary of defense Caspar Weinberger at sentencing, which falsely accused Pollard of "treason," was kept secret, thereby denying Pollard the right to a fair hearing.

* These agencies have demanded 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, - a clear denial of Pollard's right to equality before the law;

* The CIA has accused him over the years of having compromised intelligence "sources" and "methods" in Eastern Europe - a charge that was never part of Pollard's indictment and for which no evidence had ever been adduced - but whose continued recycling falsely 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.

If Mr. 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 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.

Irwin Cotler is professor of law ar McGill University and an international human rights lawyer. He has served as legal counsel to political prisoners in the former Soviet Union (Andrei Sakharov), Latin America (Jacabo Timmerman), Indonesia (Muchtar Pakpahan) and Nigeria (Wole Soyinka) and as Canadian counsel to South Africa's Nelson Mandela.