Did the US Violate Its Legal Commitment to Israel?

Larry Dub, Esq. - June 30, 2000 - The Jewish Press (NY)

The United States has never responded to charges that it violated an agreement with Israel not to use documents that Israel returned in the prosecution of Jonathan Pollard. [See:

Finally, the Truth about the Pollard Affair

Jonathan Pollard recently made contact with leaders of a major Jewish organization. He hoped that in light of the new revelations in the Lerner article that they might finally be willing to assist in his fight for freedom.

Instead of assistance, the Jewish leaders offered Jonathan a stunning excuse. They claimed that America's violation of its commitment to Israel was justified by Israel's failure to live up to its end of the bargain. They pointed to the long-standing American claim according to which Israel has not returned all of the documents it received from Pollard.

Both legally and morally this excuse is spurious. Consider the following points:

Even before the ink was dry, America violated the agreement.

As soon as the American investigative team returned to the U.S. with the documents that Israel had provided, they were immediately used against Jonathan Pollard. This occurred long before any American claim was made of documents being withheld by Israel.

• America is "grey-mailing" Israel by claiming that Israel has not returned all the documents.

  "Grey-mailing" is a tactic that interrogators use to fish for information. They keep pressing, keep insisting that information is being withheld in order to pressure the accused into further admissions. In this way they seek to confirm the commission of other crimes unrelated to the one under investigation.

• The "grey-mailing" of Israel started with the interrogation of Jonathan Pollard.

  Jonathan Pollard is on record that his US interrogators were constantly trying to trap him into confirming that additional documents - ones absolutely unrelated to his operation - were ones that he had transferred to Israel. Had he fallen for the bait, Israel would have borne the consequences.

• The recycling of this old claim that Israel has not returned all the documents is an excuse - not a reason.

  It in no way explains or justifies America's violation of the commitment it made to Israel, not to use the documents against Pollard.

• It is the perfect excuse. Why? Because it does not refer to specific documents nor is it based on any proof or evidence.

  How can Israel ever prove that it has returned all the documents when America can't or won't even say what it is that is still missing? Or even why it believes that documents are missing?

• America violated its commitment to Israel about the documents in the same underhanded manner that it broke its plea agreement with Pollard.

  When one party to an agreement violates the terms of that agreement, the other party has an obligation to make it known that the agreement is null and void. America never signaled its intent to vacate either of these agreements - it just went ahead and did so.

  Consequently, Pollard was deprived of his legal right to take appropriate counter-measures to defend himself.

• Moreover, America also violated its legal obligation to inform Pollard that the returned documents were not to be used as evidence against him.

  Pollard was completely unaware of his right to challenge the Justice Department's use of these documents in the case against him. There is no justification - legal or moral- for the US's lack of transparency when negotiating the plea agreement with Pollard.

• Finally, two wrongs do not make a right.

  Displeasure with Israel's actions does not justify America's retaliation against Pollard.

  It is a fact that Israel behaved badly towards Pollard, and it is possible that Israel may or may not have been as forthcoming in cooperation as America desired. If America was dissatisfied with Israel, the proper course of action would be to deal with Israel directly.

Fifteen years later, Jonathan Pollard continues to serve the longest, harshest, most disproportionate sentence in American history for the offense he committed in spying for an ally. Senator Schumer recently affirmed what the Pollard legal team has been saying for years: that there is nothing in the classified file to justify the punishment Pollard received. In spite of this, American Jewish Organizations and their leaders still appear more concerned with justifying their silence and their inaction than they are in seeking justice for one of their own. The Aaron Lerner article is yet another wake up call to the Jewish community. It is time to heed it.

Larry Dub is Jonathan Pollard's attorney.