Pollard's Lawyers: We Are Nearing the End

Sam Ser - The Jerusalem Post - March 23, 2005

Jonathan Pollard is running out of options in his fight for freedom, with his lawyers telling The Jerusalem Post that their current appeal is essentially their last legal venue of challenging his life sentence.

Should the US Court of Appeals for the District of Columbia reject the appeal - a likely event, if the court's chilly reception so far is any indication - Pollard's lawyers would probably petition the Supreme Court. But there is no guarantee that the Supreme Court would even agree to hear their case, much less overturn 20 years' worth of legal and governmental opposition to Pollard's release.

"Once we are out of the judicial system, our only remedy would be political relief in the form of a presidential pardon," said Jacques Semmelman, who is representing Pollard together with Eliot Lauer.

Semmelman and Lauer are trying to convince the court that Pollard's original defense counsel, Richard Hibey, was unacceptably ineffective. Hibey inexplicably failed to appeal the life sentence requested by the prosecution, and imposed by the court, despite the plea agreement that stipulated no life sentence be sought for Pollard.

Hibey and Joseph DiGenova, the lead prosecutor in the original case, refused requests to discuss the case.

During presentation of the oral arguments at the district court last week, Judge David Sentelle called Hibey one of the most highly regarded criminal defense lawyers in the country, and practically ridiculed Semmelman and Lauer for challenging Hibey's effectiveness by saying that, according to their standards, "probably about 99 percent" of attorneys would have to be deemed ineffective counsel. He also said that reviving the issue now would "open the floodgates" for hundreds of other prisoners sentenced long ago.

Judge Judith Rogers, also on the three-judge panel hearing the case, openly questioned whether Pollard is even entitled to further court challenges of his sentence.

"Oral argument is sometimes an indication of where the judges are, and they obviously had some hard questions for us," Lauer admitted. "But... we are still hopeful that the court will do the right thing regarding the motions."

Tellingly, however, Pollard's lawyers put much greater stress on a different issue: their request to gain access to secret documents relating to the intelligence that Pollard sold to Israel in 1984-85. Pollard's lawyers and supporters have long bemoaned the fact that his sentence is much harsher than those handed down to several people convicted of similar crimes, as well as the fact that successive presidents have refused to grant him clemency.

When Bill Clinton considered pardoning Pollard in 1998, for example, George Tenet torpedoed the idea by threatening to resign as director of the CIA.

Invariably, these secret documents are cited as the evidence that has condemned Pollard to lifetime imprisonment.

Dr. Robert F. Turner, an expert on international law and security issues who has served as an adviser in the Pentagon and in the White House, told The Jerusalem Post, "People whose judgement I respect, who had access to that information, told me that the Pollard material ended up in Soviet hands and did serious harm.

"As a great admirer of Israel and a Vietnam veteran who, after the 1967 war wanted to 'borrow' some of your [Israeli] generals," Turner added, "I have to tell you, I would not be very sympathetic if I sat on [Pollard's] parole board."

Pollard's lawyers refute such talk.

"The public record says that no agents died as a result of anything Jonathan did," Semmelman said, "that no facilities were compromised or had to be terminated, and that the harm he caused was in the relationship between the US and Arab governments... also that his behavior deprived US of the ability to negotiate with Israel on a quid pro quo basis."

Without access to the documents themselves, however, he and Lauer can not make the case for freeing Pollard. They have gained top secret clearance to see "sensitive compartmented information" - the most sensitive documents - but have thus far been denied access to Pollard's dossier.

"From 1993-2001 the government has allowed at least 25 people from the government to view the materials," said Semmelman, "but it won't let us see them, claiming that we don't have a need to know. I mean, who more than Pollard's lawyers has a need to know?"

"The government is doing everything it can to prevent us from seeing them because revealing the contents of those documents would... make it easier for the chief executive to grant clemency," said Lauer.

"If they don't help our case," he continued, "the easiest thing for the government to say would be, 'Come in, look, and go onto some other issue.' But [instead] they have fought [our motion] for four and a half years, stonewalling and misrepresenting... so, I have to think there is something there that makes a very big difference in how fair-minded people would review Jonathan's case today."

If Semmelman and Lauer lose their appeal, they said, a clemency request would be "inevitable." Until now, though, Bush hasn't considered releasing Pollard. And, as a National Security Council spokesman told the Post this week, the president's position has not changed.