Pollard's Criminal Enemies

The Jerusalem Post - January 31, 1999 - Alan M. Dershowitz

Present and former government officials, in their efforts to keep Jonathan Pollard in prison, may have committed crimes similar to those to which Pollard pleaded guilty. Seymour Hersh recently wrote an article for the New Yorker Magazine in which he disclosed classified material which could endanger our national security.

Hersh provided detailed descriptions of American intelligence operations. These include what Hersh referred to as our "exotic capability" to take "off-axis photographs" from special satellites that can reach "areas that were seemingly far out of range." He described how American officials trained in Hebrew used sophisticated equipment to intercept "Israeli military, commercial, and diplomatic communications."

He explained how the Navy's Sixth Fleet Ocean Surveillance Information Facility (FOSIF) in Rota, Spain produced daily reports on all Middle East activity based on data "supplied both by intelligence agents throughout the Middle East and by the most advanced technical means of intercepting Soviet military communications."

Hersh revealed that FOSIF shared space with another larger N.S.A. intercept station, "occupied by more than seven hundred linguists and cryptographers, which was responsible for monitoring and decoding military and diplomatic communications all across North Africa." Hersh described the Defense Intelligence Agency's Community On-Line Intelligence System (DIAL-COINS), which "contained all the intelligence reports filed by Air Force, Army, Navy, and Marine attachés in Israel and elsewhere in the Middle East."

And he described "what is perhaps the most important day-to-day information in signals intelligence: the National SIGINT Requirements List, which is essential a compendium of the tasks, and the priority of those tasks, given to various N.S.A. collection units around the world."

Perhaps Hersh's most explicit revelation came in his description of the RASIN, a 10 volume reference manual of radio-signals notations that the N.S.A. uses to compile the parameters of every known communication signal. Hersh reports that the RASIN, which is "classified top-secret Umbra,'" was listed in the "still secret declaration to the court before Pollard's sentencing hearing." Hersh reported as per an unnamed Justice Department official that "the RASIN was the ninth item on the damage-assessment list." Hersh asked Pollard's trial lawyer to respond to these classified allegations, but he could not lawfully do so, "citing national security."

Hersh's governmental sources felt no such constraint. Pollard's current lawyers have been denied the very information leaked to Hersh, on the ground that it remains classified. Indeed one of the arguments made for retaining Pollard in prison is that he would disclose some of the very information that Hersh has now published. That is the lawless "Catch-22" in which Pollard finds himself.

Hersh has acknowledged that he had long tried unsuccessfully to obtain this secret information from members of the intelligence community but had always been rebuffed. But now that President Clinton is considering keeping the promise the government made to Pollard in its plea bargain that it would not seek life imprisonment - some members of the intelligence community have decided to break the law in order to keep him in prison.

Let there be no mistake about the fact that anyone who discloses classified information without authorization is guilty of a serious crime, even if the disclosure is to the press.

In 1985, another former Navy Analyst, Samuel Morison, was sentenced to two years for leaking to the British magazine Jane's Defense Weekly US intelligence pictures of a Soviet aircraft carrier under construction. The Court of Appeals ruled that such press leaks were covered by the statute. Hersh has a First Amendment right to publish leaked classified material, but his intelligence sources have no right to leak it.

In his article Hersh quotes intelligence sources as speculating that some of the material Pollard gave to Israel may have been bartered by Israel to the Soviet Union. This is false, as the late Israeli Prime Minister Yitzhak Rabin confirmed. But the classified information leaked to Hersh has certainly gotten to our enemies.

If this material poses no danger to our national security, it should be declassified so that Pollard's lawyers can respond to the exaggerated charges now being made against Pollard. If it does pose a continuing danger, then those who improperly leaked it should be prosecuted.

I have written to the Justice Department requesting a criminal investigation of who leaked the classified material to Hersh. This is part of what I wrote:

"The equal application of the law demands that everyone who improperly discloses classified national security information must be prosecuted. Pollard is a victim of selective disclosures. All Americans are the victims of the unfairness of allowing those with security clearance to pick and choose what they will withhold and disclose. It is impossible for me to assess whether any of the disclosures provided by Hersh may pose any danger to our nation's security, but I am certain that if Pollard had disclosed the identical material, it would be claimed that he endangered our security.

I am awaiting a reply.

The writer is a professor at Harvard Law School, and was formerly of counsel to Jonathan Pollard.