The Punishment Doesn't Fit The Crime

David Kirshenbaum - The Jerusalem Post - July 31, 2003

With the US acknowledging that Israel deserved thanks, not sanctions, for eliminating Saddam's nuclear reactor in 1981, it is time for it to agree that Pollard's life sentence for breaching those sanctions was grossly excessive.

An enormous thank-you is owed to the United States for eliminating the mortal threat to world security posed by the regime of Saddam Hussein. In the wake of that tremendous success it behooves the US government to reconsider whether life in prison is an appropriate punishment for a former US naval intelligence officer who broke the law to warn Israel of the very danger that was a major precipitating factor in America's military campaign against Iraq.

Jonathan Pollard is in the 18th year of a life sentence for passing Israel classified data about various Arab states, including evidence of Iraq's development of chemical weapons. Just a few years before his arrest in November of 1985, the US routinely shared such information with Israel. Ironically, this vital intelligence flow was cut off in response to Israel's destruction of Iraq's Osirak nuclear reactor in June, 1981.

That operation was back in the news earlier this year, when it was disclosed that Israeli astronaut Ilan Ramon, killed in the explosion of the Challenger shuttle, flew one of the F-16s that destroyed Iraq's nuclear facility.

When asked at a White House press briefing shortly before the start of Operation Iraqi Freedom whether President George W. Bush was grateful for that mission, Bush's spokesman acknowledged that "the United States realized that, contrary to the intelligence information suggesting that Iraq was years away from the development of a nuclear weapon, they actually were only six months away. Had that mission not taken place at that time, the military mission in 1991 would have been made far, far more difficult."

Twenty-two years ago, however, Israel was showered, not with grateful praise for its bombing of Osirak, but by near-universal condemnation, including from the Reagan administration, which temporarily suspended arms deliveries to Israel.

And, as openly acknowledged by deputy CIA director Bobby Ray Inman, he was so disconcerted that American-supplied data was used to carry out the raid that he ordered the withholding of all satellite photography and other similar materials involving areas more than 250 miles from Israel's borders. This ban was then formally approved by defense secretary Caspar Weinberger.

It was into this breach that Pollard stepped in early 1984.

IN THE years before and after Pollard's arrest numerous Americans were caught spying for allied or non-aligned countries. None received a sentence even remotely close to life, the average sentence being in the two-to-four-year range.

Even the overwhelming majority of those who spied for US enemies have fared better than Pollard. Of the more than 50 spies for US adversaries during the past two decades, not even a handful received life terms.

For example, CIA agent David Barnett, who sold the Soviets the names of 30 American agents, was given an 18-year sentence and paroled after serving 10. Michael Walker, for many years a key figure in the Walker family Soviet spy ring, was sentenced to 25 years and released after serving 15. William Kampilas, a former CIA officer who sold the Soviets the operating manual to the KH-11 satellite, America's eye in the sky, received a 38-year sentence and was released after 15 years.

Abdul Kedar Helmy, an Egyptian-born American, transmitted classified materials to Egypt that were used in a joint weapons program with Iraq to vastly increase the range of ballistic missiles, including Iraq's Scud missiles, which were later fired on US troops during Desert Storm. Helmy received a prison term of less than four years. Last year, John Paul Lindh, the American who joined the Taliban terrorists fighting the US, entered into a plea agreement and received a 20-year sentence.

Exposing US agents, compromising America's most sophisticated electronic intelligence, advancing the development of enemy weapons systems, even fighting alongside enemy combatants of the US are thus all forgivable offenses. But what seems unforgivable is the crime of contravening US policy because you think you are smarter, more knowledgeable or more moral than the US government.

And lest others not understand that, massive and unprecedented punishment must be imposed, for which there can never be redemption.

The rabid opposition of those opposed to Pollard's release seems motivated, in part, by the belief that espionage for Israel is more likely because of America's close alliance with it, and that it therefore requires more deterrence. As an empirical matter, this argument is without foundation.

In the years since Israel's rebirth 55 years ago, stacked up against one Jonathan Pollard are scores of spies for US adversaries. Even more troubling: Pollard's life term runs roughshod over three fundamental principles of the American judicial system.

People who commit similar crimes ought to receive reasonably similar punishments.

Punishment should be commensurate with the severity of a crime. Any perceived need for heightened deterrence should never be allowed to elevate the punishment for a less serious crime over the punishment for a far more severe and damaging crime.

Deterrence must not be achieved by singling out one group for significantly harsher punishment for a crime, especially when all evidence clearly illustrates that that group is far less, rather than more, likely to commit that offense. That is what we call discrimination.

JUST AS the US has now belatedly acknowledged that Israel should have been thanked, rather than sanctioned, for eliminating Saddam Hussein's nuclear reactor in 1981, it is time to acknowledge that the unprecedented life sentence imposed on Pollard for breaching those sanctions was grossly excessive.

Those who have worked so hard to keep Pollard in prison all these years should have enough integrity and honor to now step forward and announce that they would not oppose the commutation of Pollard's life-term to the 18 years already served.

The writer is a Jerusalem attorney who has written extensively on the Pollard case.