Only A Deal With Israel Can Free Pollard

Nina Gilbert - The Jerusalem Post - July 24, 2005

Jonathan Pollard, the former US Navy intelligence analyst who is serving a life sentence for spying for Israel, is not likely to be released unless the Israeli government engineers a diplomatic maneuver after he lost two appeals in US courts on Friday, MKs said over the weekend.

Knesset Law Committee chairman Michael Eitan, a former chairman of the Knesset Pollard caucus, expressed disappointment with the US legal system. Israel has proven to be more humane than the US, Eitan said, noting that nuclear spy Mordechai Vanunu served only 18 years.

"Pollard is serving a sentence disproportionate to his crime," Eitan said.

He said he believed that the Pollard case could now only be resolved between the US president and the Israeli prime minister.

MK Arye Eldad (National Union) said that if Israel wanted to get Pollard released it must "issue an ultimatum" that it would expose US spying activities in the area.

However, Eldad said he doubted that Prime Minister Ariel Sharon would do anything for Pollard and it would take another prime minister to do so. He added that Israel was not willing to pay the price the US was asking for his release.

A federal appeals court on Friday rejected Pollard's claim that he had inadequate counsel when he was sentenced in 1987 and denied his request to reduce his sentence.

At the same time, a three-judge panel at the US Court of Appeals for the District of Columbia denied Pollard's attorneys access to classified information they say would help in their attempt to win presidential clemency.

The rulings, which affirm decisions by a US district court in 2003, leave Pollard with little recourse but the Supreme Court to change his fate.

Pollard's attorney, Eliot Lauer, said Friday another option was to ask the entire appeals court to hear the case.

"We are very disappointed with the appeals court decision," he said. "We hope that in time, and we are confident that in time, the American judicial system will give Jonathan Pollard his rightful day in court."

The appeals hearing was the latest in the battle to free Pollard, who was given a life sentence after pleading guilty as part of a plea bargain that the US government did not respect.

Pollard's attorneys and members of the American Jewish community lobbied hard for clemency during the Clinton administration, as well as under previous administrations.

Israel, which granted Pollard citizenship in 1995, also has raised the issue with successive American administrations. Israel has argued that Pollard's life sentence was unjust because he had pleaded guilty and because it was harsher than the penalties given to other convicted spies who had worked for countries antagonistic to the US.

The court said Friday that Pollard's claim of inadequate counsel was untimely because he knew the circumstances of his claim before he filed it in 2000. Motions can be filed up to a year after sentencing or when new facts are discovered.

"Pollard knew the facts; what he now claims not to have known is the legal significance of these facts," Judge David Sentelle wrote for the court, which was unanimous on the issue.

Pollard's attorney, Jacques Semmelman, said in oral arguments that a conflict of interest between Richard Hibey, Pollard's original attorney, and Hamilton Fox III, who filed a motion in 1990 seeking a withdrawal of Pollard's guilty plea, prevented Fox from claiming ineffective counsel.

"The conflict of interest is that Mr. Fox could not bring himself to say anything negative about Mr. Hibey," Semmelman said under repeated questioning by Sentelle.

The new lawyers claim Hibey was ineffective because he did not appeal after Pollard received a life sentence, even though he had pleaded guilty and had cooperated with the government.

Pollard's attorneys also want to see 40 pages of a declaration written in 1987 by then-secretary of defense Casper Weinberger, which outlines his assessment of Pollard's damage to US interests.

That declaration is believed to be key to Pollard's long sentence, but the court ruled that federal courts lack jurisdiction to review claims for access to documents for clemency purposes.

"The Constitution entrusts clemency decisions to the president's sole discretion," wrote Sentelle, joined by Judge Karen Lecraft Henderson.

Judge Judith Rogers dissented, dismissing the jurisdictional question but saying that Pollard's lawyers did not have a "need to know," which is required to access the information. A presidential grant of clemency was a government function, she said, while assisting Pollard's petition is a private act.

"Simply asserting that one's assistance is needed does not make it so, especially since executive clemency is a matter of grace," she wrote, adding that the president would have to seek the assistance of Pollard's attorney to meet the "need-to-know" standard.

It's unclear when and if Pollard's attorneys will appeal to the Supreme Court. The court could hear either or both of the two issues, or choose not to review the case, essentially affirming Friday's decision.

Pollard, held at Butner Prison in North Carolina, is eligible for parole, but his attorneys said he had not sought a parole hearing because it would be hard to argue for parole without the classified information.

JTA contributed to this report.