Supreme Court Turns Pollard Down Again
Arutz Sheva - IsraelNationalNews.com - June 8, 2006 - 12 Sivan 5766
The Supreme Court has rejected a suit by Jonathan Pollard asking that, because the Americans unfairly used evidence against him provided by Israel, the Israeli gov't request his release from prison.
Justice Ayala Procaccia explained that the matter is overwhelmingly "diplomatic" and less so one of civil rights, and therefore she sees no room for judicial intervention in the government's decisions.
Attorney Nitsana Darshan-Leitner (pictured), representing Pollard in the case, explained to Arutz-7 what exactly she and her client were requesting:
"Back in 1985, the Israeli government returned to the U.S. the papers that Pollard had provided Israel - but only on condition that they not be used against him in a future trial. This condition was made in a phone conversation between then-Prime Minister Shimon Peres and then-U.S. Secretary of State George Schultz.
"However, we know that these papers were, in fact, used against him in the trial - and he was sentenced to life imprisonment, even though he made a plea bargain agreement with the government."
"Based on this," Darshan-Leitner continued, "we asked that Israel confront the U.S. with the fact of its failure to meet its commitment, and ask for his immediate release from prison."
Darshan-Leitner acknowledged that the issue of the American commitment not to use the papers against Pollard is contested by some: "Even though the Eban Report [see below] made it quite clear that Peres consented to give the papers only on condition that they not be used against Pollard, there are those who contest this. So we said: If there is any question, why not summon for his testimony the one man who can know - Shimon Peres himself? But the Court did not agree to summon this request either."
The Eban Report was presented in May 1987 to the Knesset Foreign Affairs and Defense Committee. Regarding the Peres-Schultz phone call, two versions were presented by the committee members - one by the three Labor MKs, and the other by three Likud MKs - including none other than current Prime Minister Ehud Olmert.
Though the first three justified Peres' decisions while the other three were more inclined to criticize them, they all agreed regarding the conditions presented to Schultz for the return of the papers.
The Labor MKs' position was:
"These commitments [made by Peres to Schultz] were not without reservations... [T]he three ministers [Peres, Yitzchak Shamir and Yitzchak Rabin] had been and still were in agreement concerning their backing of what Mr. Peres had said to Mr. Schultz in their telephone conversation and all the decisions that had been taken in the matter under discussion... The three ministers conditioned the cooperation on the granting of immunity to the three persons involved in the affair and on the consent of the Americans to the fact that the documents returned would not be used to convict Pollard."
The Likud position on this matter - co-signed by Ehud Olmert - was similar but stronger: "The consent of Prime Minister Shimon Peres to return the documents delivered by Pollard was fundamentally mistaken and caused serious damage. These documents constituted the basis for the conviction and life sentence that Pollard received, in spite of the Israeli assertion that there was an American commitment not to use the documents against Pollard..."
In the ruling issued today, Justice Procaccia wrote that the Court would not intervene in the government's actions, "even when human rights are involved [because] this is a matter in which the dominant factor is a blatantly political matter... The government must be allowed the independence of consideration to decide what is the correct approach and timing to achieve a desired goal...
"In addition, regarding Pollard's claims that the Americans violated a promise not to use the returned documents to incriminate him, no clear evidence was found to support this...
"Nor is it clear, even if Pollard's claim were found to be true, that it would be appropriate to employ the action he requests for the achievement of the goal which we all desire. It is not at all clear that employing such an action in the diplomatic sphere would advance his cause, and it cannot be ruled out that it might even cause harm. It is not clear, in the framework of this judicial proceeding, what the general ramifications might accompany such a diplomatic move as requested by Pollard, from the standpoint of the general interest. This is one of those matters that is given to the authority of the government, and the court must refrain from intervening."
Attorney Darshan-Leitner said that the other two justices on the all-female panel, Justices Esther Hayut and Yehudit Naor, were not as strong in their determination that the civil rights aspect of the case should give way to the diplomatic aspects.
Pollard's wife Esther, responding to the decision, said this morning, "The Supreme Court of Israel had the opportunity to be part of the solution, to save the life of an Israeli agent languishing in prison for 21 years for saving the lives of Israeli citizens. Instead, the Supreme Court chose to duck its responsibility and to endorse the Government's 21-year-long abandonment of an agent."
"All the petition asked the Supreme Court to do was to compel the Government to fulfill its obligations to an Israeli agent in peril."
She said that Israel never protested when the US violated its commitment not to use the documents against her husband. "Israel did not even tell Jonathan about this commitment so that he could use it in his legal defense. Jonathan did not find out about the commitment at all until the year 2000 when the late [Cabinet minister] Rechavam Ze'evi secured a copy of the Eban Commission Report for him."