"The Appropriate Sentence Would Be Time Served"
Jennifer Knoll - The Jerusalem Report Magazine - Jewish World - Week of October 6, 2003
Jonathan Pollard, the American naval intelligence analyst who was arrested in 1985 on charges of spying for Israel and sentenced to life in prison, appeared in court on September 2, for the first time in 16 years. Pollard's attorneys presented to the U.S. District Court in Washington two motions that they hope will ultimately lead to their client's early release from Butner prison in North Carolina.
Pollard, now 49, had reached a plea agreement in exchange for his cooperation but the U.S. prosecutors reneged on the deal, claiming media interviews given by Pollard violated the terms of the agreement. Then defense secretary Casper Weinberger submitted a 46-page secret affidavit to the court which is believed to have sealed his fate. Pollard's new defense team, including New York attorney, Eliot Lauer, are claiming their predecessors failed to provide effective counsel and missed opportunities to provide their client with a fair trial.
The Jerusalem Report: What are the new developments in the Pollard case?
Eliot Lauer: We have requested access to the sealed portion of the sentence, which consists of 35-40 pages mostly of the Casper Weinberger declaration. This is a portion of the sentencing file which no one representing Pollard has seen since March 4, 1987.
We also made a motion to vacate Pollard's sentence on the ground that he had been denied his sixth amendment right to effective assistance of counsel. We are saying his second lawyer should have challenged the first lawyer. The first lawyer did a poor job and the government breached the agreement.
You put all of those things together. When a sentence is based on misconduct by the government, in this case breach of a plea agreement, the result ought to be vacating the sentence and a new sentence before a judge, based on a fair and honest record.
The Jerusalem Report: Do you have any expectation that Pollard will be set free, or are you just looking to have his sentence reduced?
Eliot Lauer: Not reduced, vacated, and strictly speaking he would be resentenced. I believe that if Jonathan Pollard was resentenced tomorrow in a process that contained only the appropriate information and documents in accordance with his plea agreement, the appropriate sentence would be time served. He has already served probably twice as long as anyone who has been sentenced for this same offense in the United States.
The Jerusalem Report: But there are claims that Pollard did huge damage to the country, far beyond what his supporters believe.
Eliot Lauer: It is precisely because people say, If you only saw what was in the secret file, you would see that he did things that were more harmful than what is in the public file,' that I have asked the court to give me access to the secret file. Most, if not all, of the people who claim to know or have been told there is something more in the secret file, in my view are making it up, and feel confident making it up because for 16 years nobody representing Pollard's side of this has seen the file. I have the security clearance and I clearly have the need to know, because if we were to approach President Bush to talk about clemency you'd get all these Washingtonians who come out of the woodwork and say, Don't give Pollard clemency because of all these terrible things.'
I need the authority to talk to the White House staff and others and say I have gone through the file and examined all the things in the file and there is nothing in there that is different than the public portion of the file.
The Jerusalem Report: If you are not granted access to the file, is it all over?
Eliot Lauer: If the judge denies our access, we will appeal to the District of Columbia's Court of Appeals. I say with no exaggeration that our presentation on this issue was compelling. We got a letter on August 3, 2001 from the fellow who is responsible for the documents saying that we had the correct level of clearance; all we needed to establish is a need to know. We know government lawyers were looking at these records and we even quoted to the judge a press conference with [former] attorney general Reno where she said that president Clinton had asked her to look at the Pollard matter and she had directed people to look at the file. If the government had determined that there was a need to know what was in this file in order to determine if Pollard should get some kind of clemency, then shouldn't security-cleared counsel have the same right? Don't we have the same need to know?
The Jerusalem Report: Are you getting support from the Israeli government?
Eliot Lauer: The Pollard matter as far as we're concerned involves American due process and American legal issues, so we have not reached out to the Israeli government for help. I have read that the Israeli government says that it is doing things for Pollard. Whatever they are doing is... totally separate from what we are doing, which is focusing on the fact that Pollard's constitutional rights were violated. And regardless of how you feel about his activity, as an American he was entitled constitutional protection and was deprived of that protection.
The Jerusalem Report: Why is he being treated differently?
Eliot Lauer: I think Weinberger was embarrassed by what Pollard had done. I think Weinberger was promoting a campaign of befriending Iraq as a way of buttressing American policy against Iran and that Pollard was concerned that the administration had cut Israel out of some key intelligence data on Arab troop movements, terrorist activities and biochemical activities in Iraq. Pollard gave that information to Israel and if you look at the public sentencing file you will see that Weinberger's and the government's complaint against Pollard is that...he was giving things to Israel that the government may not have wished to give to Israel because it embarrassed America with the Arabs, that America was helping Israel too much vis-a-vis the Arabs.
I think it is ironic in a sad way that some of the architects of the original policy of supporting Iraq are those who brought down the Saddam regime, and... someone who should have gone to jail for a few years ended up getting life.