Editorial: Deafening Silence

The New York Sun - September 3, 2003

Want to get rich? Collect a nickel from every one of the people who has been crying bloody murder about Attorney General Ashcroft and the Bush administration's use of "secret evidence" against alleged terrorists but who hasn't uttered a peep abut the administration's refusal to disclose the secret sentencing memo in the case of Israeli spy Jonathan Pollard. Mr. Pollard, you may recall, is the American who pleaded guilty to conspiracy to commit espionage on behalf of Israel. Pollard in 1987 was sentenced to life in prison. That was an unusually harsh punishment, coming as it did after a plea bargain and for acting on behalf of a nation that is, after all, an American ally. Judge Stephen Williams, in a 1992 dissent in an earlier Pollard appeal, referred to the government's breach of its plea agreement as "a fundamental miscarriage of justice" and likened the behavior of government lawyers to that of the witches in "Macbeth."

Pollard and his lawyers were back in federal court yesterday (09/02/03) in Washington. Among the issues being argued was the right of Pollard's lawyers, who have the appropriate "Top Secret" security clearances, to get access to the classified documents that the American government filed with the sentencing judge before Pollard was sent down the river. The classified documents include portions of a 46-page declaration filed by the secretary of defense at the time of the sentencing, Caspar Weinberger. Mr. Weinberger publicly referred to Pollard's action as "treason," a charge that the Constitution prohibits the government from defining as anything other than levying war against America or adhering to its enemies, giving them aid and comfort. It was a charge of which Pollard was never accused. The American Civil Liberties Union, to its credit, filed a friend of the court brief siding with Pollard. On another issue before the court, on the statute of limitations and the habeas corpus right, at least one distinguished liberal, Professor Charles Ogletree of Harvard Law School, has signed a friend of the court brief backing Pollard, while another distinguished liberal, a former executive director of the NAACP, Benjamin Hooks, tried to sign on to the brief but was rejected by the court.

Still, one has to wonder: Where is the New York Times editorial page and its liberal columnists? Where are Nat Hentoff and the Village Voice? Where's Bob Barr? Where are David Bonior and Rep. John Conyers and their allies in the organized American Muslim and Arab communities? The Nation Magazine? The National Public Radio crowd? They've all been writing and buying newspaper advertisement and holding rallies and giving speeches and introducing legislation and otherwise raising a ruckus about the use of secret evidence and tribunals in counter-terrorism cases and immigration proceedings. And doing so in cases that involve the real levying of war against America and adhering to its enemies.

Pollard's actions were illegal and misguided, a point even he has admitted. But if the real issue for all these civil liberties advocates were strictly civil liberties, one would think they'd be eager to see Pollard granted the same due process rights that they are so eager to grant those who are accused of aiding the terrorists. In the case of Pollard, however, a perfect example of the abuse of secret evidence is greeted with a deafening silence. It gets to a point where people wonder why.