Scenes From the Pollard Supreme Court Hearing
by Esther Pollard
January 25, 2000 - May be Reprinted
After Jonathan Pollard has languished for 15 years in an American prison on behalf of the State of Israel, Ehud Barak rises to power in Israel and Pollard finds himself completely cut off from all contact with the Government. None of the support that is legally owed to him as an Israeli agent is forthcoming. All of Pollard's attempts to contact the Government and to communicate with Prime Minister Ehud Barak are rebuffed.
After months of trying to engage the Government without success, Pollard files Petition No. 6029/99 in Israel's Supreme Court in September of 1999. The Government rejects all further overtures from Pollard and his attorneys saying "Since you have filed in Supreme Court, we will not talk to you." "But you wouldn't talk to us before," say the Pollard team, "that is why we had to file in court." "Too bad," says the Government. Catch 22.
The Court rules on the petition immediately, giving the Government 30 days to respond. Pollard and his attorneys breathe a sigh of relief. They know that the Court has the power to reject a case out of hand without having to explain itself. They also know from past experiences with the Israel Supreme Court, that the Israeli judges wish that the Pollard Case would disappear off the face of the earth. The judges do not like to find themselves in an uncomfortable position vis a vis the Government, and the Pollard case - by exposing the Government's lies and treachery - does that to them every time. The first hurdle is past. The Court has accepted the case.
Exactly 30 days later, on October 7, 1999, the Government files its Initial Response to the Pollard petition. In this response, the Government recognizes its legal obligation to Jonathan Pollard and makes a series of promises to him - including medical support, financial support, direct contact, and consistent updates. To this day, not a single one of these promises has ever been acted upon.
As well, the Initial Response states that Prime Minister Ehud Barak is "working quietly behind the scenes" to bring Pollard home. There is no evidence to support this claim. In fact, just days before the case is heard in Supreme Court, the new Israeli Ambassador to the United States, David Ivri, tells Pollard's wife and his attorney that there is no Israeli plan to assist Pollard in any way.
In the US, the slander and lies about Jonathan Pollard by US Government "sources" continues unabated. The Government of Israel holds all of the documents necessary to defend Jonathan Pollard against these false charges; they are all in Jonathan's Ministry of Defense File. Instead, the Government of Israel chooses to continue its 15 year-old failure to respond in defense of Pollard.
In the absence of any responsiveness to his plight on the part of the Israeli Government, Jonathan Pollard has no choice but to wait for his day in Israel Supreme Court .
The following eye-openers describe real scenes from the Pollard Supreme Court Hearing which took place in Jerusalem on January 23, 2000.
[Note: all quotes are approximations of the original Hebrew in which this Hearing took place.]
Scene One: I Didn't Want to Have to Do It.
January 23, 2000, 9:00 am. Israel Supreme Court.
The judges haven't arrived yet. A slew of lawyers, plaintiffs, and defendants are all in place in the courtroom, waiting for their cases to be heard.
Sitting next to me in the front row of the spectators' seats is a gentleman in a gray suit. As it turns out, he too is waiting to have his case against PM Ehud Barak heard. The court press photographers enter and begin snapping endless photos of this gentleman, and of me.
Sharing the attention with me intrigues him. As soon as all the camera shutters stop clicking, the gentleman turns to me, smiles, and in elegant Hebrew inquires, "And who might you be, dear Lady ?" I reply that I am Esther Pollard. His face lights up and he says: "Then you know me!"
"Oh?," I respond, looking at him quizzically.
"I am Yossi Katz!" he says. "I am one of the Knesset Members who participated in the recent Knesset session for your husband that you attended. I spoke on behalf of (Ehud Barak's) One Israel Party. I spoke in support of Jonathan's release." [See related article.]
"Yes," I said, " I remember you. You were the one who said that Barak is making great efforts with the Americans to secure Jonathan's release."
"Yes!" he said, "That's right!"
"Well," I replied, "you are dead wrong! Barak is not doing anything to secure Jonathan's release."
"I know," replied Katz.
"Then why did you say that in Knesset?" I demanded.
"Because I had to! Don't you understand?" he queried, as if I were some sort of simpleton. "I was representing Barak's One Israel Party, so I had to say that."
The next day, the Israeli newspapers report that MK Yossi Katz has just been appointed by PM Ehud Barak as Israel's new Ambassador to Germany. If I ever see Katz again, I must remember to ask him if he dropped his case against Ehud Barak...
Scene Two: They'll Never Ask...The tension mounts. The judges still haven't arrived. Jonathan Pollard's attorneys, Larry Dub and Baruch Ben-Yosef look impressive in their black robes. This is the big day! They have been preparing assiduously for this Supreme Court Hearing for the last six months. The night before the hearing, we all meet one last time to go over the case and to be certain of the details.
Our last-minute meeting is critical since the Government has just filed a new request to the court to have the case summarily thrown out without a hearing. The Government request is based on the claim that the Pollard issue is purely political and the court has no jurisdiction in matters political. Pollard, they claim, has no right to tell the Government "how to interact with the Americans."
The Government does not explain how it squares the circle now by simply ducking the whole issue of Pollard's legal rights as an Israeli agent. The Government is not at all concerned that the judges will point to the promises that it made to Pollard in its Initial Response to the Court, and that it may have to explain why not a single promise has been fulfilled.
As subsequent events reveal, the Government's attorney Uzi Fogelman correctly anticipates the Justices' response. Never once, throughout the hearing, will any of the three judges ask the Government to explain why it lied to the Court in its Initial Response, making promises to Jonathan Pollard that PM Barak clearly never intended to keep.
Scene Three: Does Jonathan Pollard Even Know About This Case?Finally the judges enter. The panel consists of Justice Michael Chesin, Justice Yitzhak Zamir and President of the Supreme Court, Justice Aaron Barak. I am sitting right behind our attorneys who are seated at a large horseshoe-shaped table facing the judges. The judges sit on a raised dais that is clearly meant to stress their elevated status. The court clerk is positioned between the attorneys and the judges.
The court clerk rises and calls the first case. We wait. It is not ours. Several cases are heard, one after the other, in fairly swift succession. Finally our case is called.
The reader, knowing how much time, energy and effort that has been invested in the Pollard petition since it was filed months ago, imagines great drama and passionate oral arguments that last for days. The reality is: the Justices allow the Pollard hearing a mere half-hour.
Larry Dub, Pollard's lead attorney, rises to present the case. One of the judges immediately interrupts him to ask about Jonathan Pollard's affidavit. The judge questions the validity of Pollard's affidavit and consequently the validity of the entire petition. Not because it is political. No, of course not. But because there is a typo in the affidavit that Jonathan Pollard signed stating that he is aware of this petition, has reviewed it in detail, and consents to it being heard on his behalf.
Along with this affidavit Jonathan Pollard has also signed a new Power of Attorney form, authorizing Dub and Ben-Yosef to act on his behalf. The problem? The dates on the Power of Attorney and the Affidavit do not match! Dub apologizes and explains that there is clearly a typo on the Affidavit. "Not acceptable," says the judge. He questions whether Jonathan Pollard is aware of the petition at all.
A bit of history. The last time a Pollard petition was heard in Israel Supreme Court, a few years back, the judges attempted to throw the petition out. They insisted that they could not assume that Pollard's long-standing attorneys were still authorized to represent him, and attempted to invalidate the petition because his attorneys did not include a new "Power of Attorney" with the petition. Only the presence of Jonathan Pollard's wife in the courtroom on that day prevented them from doing so.
This time Dub and Ben-Yosef were prepared. Or so they thought. A small typo puts them squarely on the defensive.
Dub holds his ground and tells the challenging judge that he witnessed his client's signature in person on the affidavit at the same time as his client signed the new Power of Attorney. The judge knows that as an officer of the Court, Dub has the right to certify the signature. The judge ignores Dub and goes on to ask why Pollard didn't sign the petition itself. "Because," says Dub, "he is in prison in America. There were changes." "That is no excuse," says the judge and it is clear from the look on their faces that at least two of the judges are getting ready to insist that the petition be withdrawn and refiled with Jonathan Pollard's signature on the petition itself, entailing a delay of at least 6 months. In this way the Supreme Court can duck its uncomfortable responsibility to Jonathan Pollard on a technicality. The presence of the President of the Supreme Court Justice Aaron Barak seems to mitigate the temerity of the other 2 justices - they will need the President's support to throw the case out. They hesitate for a second, long enough for Dub to make a comeback.
Dub calls the justices' attention to the affidavit I signed as wife of Jonathan Pollard. He points out that Mrs. Pollard signed this affidavit the day the petition was filed, a mere 3 days after visiting her husband in Butner North Carolina. In this affidavit, Mrs. Pollard testifies that she has gone over every clause in the petition with her husband to apprise him of all changes. The judge then takes another tack. "When was the last time you saw your client?" He seems to be fishing for proof that the attorney did not see his client after filing the petition and therefore his client may be unaware of it. Dub senses this, smiles, and replies, "I saw my client in October." Checkmate. The case can proceed.
Scene Four: Judge Wants Financial Support From PollardAttorney Dub begins his case stating, "We have no disagreement between us that Jonathan Pollard is an Israeli agent. No one here disagrees that as an Israeli agent Jonathan Pollard has legal rights. Even the respondent in this case acknowledges his obligations to Jonathan Pollard in his October 7, 1999 Initial Response to this court." Dub then reads directly from the Government's Initial Response, in which specific promises are made to Jonathan Pollard. Dub points out that the Government has not acted on any of the promises it made to Pollard in its Initial Response. The judges do not ask the Government attorneys to explain its blatant breech of promise.
Dub continues. He states that in its Initial Response, the Government promised Jonathan Pollard financial assistance with his "personal needs". Dub points out Pollard's personal needs include full support for himself, and his wife and his legal counsel, both in Israel and in America. The attorney then points to me and says, "Here is Pollard's wife. She is sick with cancer and cannot work. She is saddled with all the expenses for herself and her husband. She is in deep financial distress. The Government's indifference to the wife of an Israeli agent is outrageous. If her husband were out of prison he would be supporting her, he would be able to support himself and to support his attorneys."
The judges do not relate to anything but the last 4 words that Dub has said. One of the judges counters by saying, "Support you? Why should Pollard support you? Why doesn't he support me?" At first Dub does not grasp what is happening. He just stares at the judge in disbelief and says, "Excuse me?" The judge repeats, " I said, why should Pollard support you? Why shouldn't he support me?" It dawns on Dub that the judge is purposely misconstruing the word "support" as if to invalidate the entire claim. Dub replies, "With all due respect, your Honor, my intent is that Jonathan Pollard would be able to support his attorneys by paying their legal fees." The judges do not ask the Government why none of Pollard's expenses are being paid.
Scene Five: Are You Sure You Are Not A Volunteer?One of the judges asks Larry Dub, "You have been Pollard's attorney for 6 years?" "Yes," Dub replies. "And in those six years, you have never been paid?" "That is correct," Dub replies. "When you did not get paid after the first year, why did you continue to work for Pollard?" The implication is that Dub did not expect to get paid, and therefore volunteered his services. Dub represses the urge to say, "I was not going to abandon Jonathan Pollard the way that the Government of Israel has." Instead, he explains to the judge that up until 1994, the Government of Israel chose all of Pollard's attorneys and paid their fees, and that severe conflict of interest kept these attorneys from being effective on behalf of Pollard. In fact they badly botched his case, depriving him forever of the opportunity to make a direct appeal of his sentence. "That is why in 1994 Jonathan Pollard fired his Government-appointed attorneys and hired me," says Dub. "At that point, the Government cut off all funds to Pollard."
"If you expected to get paid for your work after working for free for so long, did you do anything to try to collect the monies owed to you?" asks the judge. "Yes," says Dub, and he proceeds to name the Government officials that he has met with about the issue of legal fees, and even points to a written statement by the former Cabinet Secretary Dani Naveh (which is part of the file) which indicates that Dub has a right to be paid by the Government, just as all of Pollard's previous attorneys were. Moreover, Naveh states that Dub always cooperated with the Government in its efforts on behalf of Pollard and that his cooperation was appreciated. Dub also indicates that he was invited by the last Government to submit a bill as a starting point for negotiations. Then Ehud Barak took power and cut off all contact with Pollard and his representatives.
Scene Six: The Emperor Has No ClothesAttorney Larry Dub continues his presentation. He is refuting the Government's claim in their Initial Response that Prime Minister Ehud Barak is working assiduously to bring Jonathan Pollard home. Dub recounts our recent meeting with David Ivri on my birthday, December 28, 1999. Now there is a birthday I won't forget.
At that meeting, on the eve of David Ivri's departure for the States to take up his post as the new Israeli Ambassador to Washington, Ivri tells us the following:
1) he has not been briefed by PM Ehud Barak or any other Government official about Pollard
2) he has no instructions regarding Pollard
3) there is no Israeli plan to assist Pollard
It is clear that if any Israeli initiative were in the works for Jonathan Pollard, the one person who would have to know is David Ivri - even if for no other reason than he not say or do anything in Washington that would frustrate the Government's plans.
Our attorney tells the judges that Ivri agreed with me that it is inappropriate for us to be discussing with him those matters that are the exclusive province of the Prime Minister. Ivri suggested that I meet with the Prime Minister. Back to square one. This is the only Prime Minister of Israel who consistently refuses to meet with us.
Scene Seven: Is this a Court Hearing or a Press Conference?Supreme Court Chief Justice Aaron Barak asks Uzi Fogelman, the attorney for the Government to respond to what Larry Dub has said.
Fogelman responds that Jonathan Pollard does not need a lawyer. Pollard has no legal avenues open to him, says Fogelman, and therefore he has no legal needs. Dub, continues Fogelman, is not acting as Pollard's lawyer but rather as his publicist. The judges do not interrupt Fogelman to ask him if that means that the day's procedings are a press conference, rather than a Supreme Court Hearing. Not a single judge wonders aloud why Dub is wearing a black robe today and presenting a legal case if he is not acting as an attorney.
Fogelman continues: Dub was not appointed by the Government, does not coordinate with the Government, and stirs up so much press that it is just harming Pollard and his case. "The Government of Israel," states Fogelman, "does not believe that it has to underwrite activities that are not coordinated with it." The judges do not ask Fogelman how Dub is supposed to coordinate efforts with a Government that will not speak to him or his client.
Fogelman continues. Smiling all the while, he states in all earnestness that the Government is living up to its responsibilities to Pollard and implies that Pollard should be glad. He waves a folded note at the judges and says that this is a secret communication from Prime Minister Ehud Barak which he cannot show to anyone, but which states that Ehud Barak is bringing up Pollard's case at every meeting with the Americans. He adds that Attorney General Elyiakam Rubenstein met with American Attorney General Janet Reno to speak about the Pollard case. Fogelman does not tell the judges that this meeting with Reno took place years ago.
Fogelman also does not address the statements made by David Ivri, which fly in the face of the Government's Initial Response to the Court. He makes no attempt to explain why none of the promises that the Government made to Pollard in its Initial Response have been fulfilled, and of course, the judges do not ask. Instead, Fogelman tells the Court that Pollard's attorneys are not doing any valid legal work, but just like to make trouble for the Government by bringing law suits against it.
Scene Eight: Nothing Better to do than Embarrass the Government?Baruch Ben-Yosef, Jonathan Pollard's second attorney, asks for permission to address the court and receives it. Ben-Yosef protests that Jonathan Pollard does not sit around in his prison cell dreaming up new ways to embarrass the Government by filing law suits against it. Ben-Yosef tells the judges that if the government had fulfilled even its minimum obligations towards Pollard, we would not be in court today. One of the judges asks him what he means by that. Ben-Yosef reiterates that not a single one of the Government's promises to Pollard as stated in its Initial Response to the court - including medical assistance, financial support, consistent contact and regular updates - has been acted upon.
For most people in the courtroom it seems to finally sink in that the Government has not discharged its most minimal responsibilities to Jonathan Pollard. In the faces all around me I see shock and disbelief as if they are getting it for the first time. Even in the faces of the judges, the message seems to finally register that the Government has lied to them in its October 7, 1999 Initial Response.
However, consistent with the Court's uncanny ability to sidestep contentious issues, one of the judges then challenges Ben-Yosef, asking why the Government has to tell Pollard or his attorneys anything. You have no need to know, says the judge. Anything you are told, you will leak to the press and ruin the Government's efforts. It is enough that you have been told today that the Prime Minster is working to bring about Jonathan Pollard's release.
Ben-Yosef again protests, saying that all we are asking for is a chance to work with the Government, to cooperate, to be informed, to be consulted, to assist, just as we did with the last government.
Fogelman responds saying that the Government will not work with those who do not coordinate with it. The judges do not challenge him. I sit on the bench thinking, don't they realize that you can't coordinate with a Government that won't talk to you? I feel like Alice in Wonderland.
The judges indicate that their decision will be issued at a future date. The hearing is over.
Scene Nine: Down But Far From OutLarry, Baruch and I leave the court room. This is not the first time that we have had a Pollard petition heard in Israel Supreme Court. We are, as always, shocked but not surprised. Later, when I will recount these scenes in the courtroom to my husband, what will pain him the most is the complete absence of rachmones - human kindness and human decency in the proceedings. He will also express extreme frustration with the failure of the Israeli media to publicize the indignity in these proceedings. That is why I will ultimately sit down to write this, so that as many people as possible may be made aware of what really went on. So that there will be some record for posterity.
Outside the courtroom, I speak briefly with reporters. They tell me there was no blood. Without blood the papers won't want to print much about the hearing, they say. This is not news to me. For some time now, the media has been brutally honest with us. They only want to know if the worst happens to Pollard (G-d forbid), or the best. Both of those extremes are news, they tell us. Everything else is boring. It doesn't sell. "Truth and Justice, anyone?" we ask. "No, thanks," is the response from the media. The next day there will be some minor coverage of the hearing. Nothing vaguely appropriate to the monumental issue that this hearing represents - namely the ongoing abandonment of an Israeli agent by the Government he served.
I leave the reporters and join Larry and Baruch who are sitting on a bench waiting for me. Larry sees me and starts to laugh. "Okay, Esther," he says, "There's the good news and the bad news. Which would you like to hear first?" I just look at him, my eyes widening quizzically. He continues. "The bad news is that we really have a tight case - open and shut - and we did not win it today. Not yet, anyway. The judges have yet to decide the case. That could take a day, a week or a month, so that is the bad news."
"And what is the good news?" I naively ask. "Our case didn't get thrown out!" says Baruch, "That's the good news!" And the three of us laugh in relief.
We all know that in spite of the bizarre twists and turns that the hearing took, the case is a strong one, and one that is certain to set a precedent for all time regarding the obligations of the State to those who serve it. What the judges decide, once they have reviewed the complete file, is in fact a lot more important than exactly what was said or not said in the hearing. The judges' failure to immediately challenge the Government on its idiotic claim that Jonathan Pollard's attorney is really his publicist, or on its failure to live up to its promises to Jonathan Pollard may in fact indicate nothing more than that these issues were so blatantly obvious that the judges duly noted them and moved on.
This, of course, does not mitigate the Court's heartless attitude towards Jonathan Pollard, now or in the past. I think back to our Supreme Court hearing in 1995 that ultimately brought us victory in the form of citizenship for Jonathan Pollard. That hearing was so harsh, it left us devastated. Ditto, the Supreme Court hearing in 1997 which resulted in the Government of Israel officially recognizing Jonathan Pollard as an Israeli agent. That hearing left us feeling as if we had been brutally raped.
Now in hearing our most recent petition, the case of Jonathan Pollard has once again been handled with cruel indifference, arrogance and a complete lack of sympathy by the Supreme Court of Israel. Hurt feelings not withstanding, there is every reason to believe that this Court hearing will also bring us equally as stunning a victory as our last two petitions have - a victory that every Israeli soldier, every Israeli agent, and every Israeli citizen will share in.