Justice and Jonathan Pollard

Kenneth Lasson - IMRA - November 16 2006

It is intellectually offensive to read in the Jerusalem Post a totally unsubstantiated "news" story that "Pollard Gave Info to Pakistan, Australia." It is doubly onerous that this allegation comes over twenty years after Jonathan Pollard was sentenced to life in prison, and curiously released just as rumors of clemency on his behalf are being heard.

While the Post headline may be journalistically irresponsible, though, the FBI agent making those charges is guilty of patently immoral deception: the evidence he provides is a shoddy collection of hearsay, innuendo, and deceptive half-truths - none of which ever appeared in court documents. One may rest assured that the Justice Department would have included any charges it thought it could prove in its original indictment in 1985 or in subsequent court filings.

Pollard's most staunch defenders make no apology for his actions. He clearly committed a punishable wrong. He is not a hero, but he is most certainly a victim of a monumental miscarriage of justice. Here are the undisputed facts:

First, Pollard was apprehended for passing classified information to a foreign government. He was never charged with nor convicted of the crime of treason. Nor was there anything in his indictment to suggest he intended harm to America - or that he compromised the nation's intelligence-gathering capabilities, or that he caused injury to any of its agents.

Second, in lieu of a trial, the government entered into a plea agreement under which it promised not to seek life imprisonment in return for Pollard's cooperation. The Justice Department acknowledged in court that he had cooperated fully. Nevertheless, the chief prosecutor (Joseph DiGenova) said immediately after sentencing he hoped Pollard "never sees the light of day."

Third, Pollard was sentenced on the basis of a government official's private statements to the judge that, for all anyone knows, may be lies. The secretary of defense (then Caspar Weinberger) presented the court with a secret memorandum that has never been subject to cross examination. Later he told the press that Pollard was one of the worst traitors in American history (and still later was quoted as saying that the case "was blown way out of proportion."). But where was the evidence?

Our system of law requires that an accused be confronted by, and given an opportunity to challenge, his accusers. That's what Pollard was denied.

What did Jonathan Pollard do to deserve life imprisonment? Nowhere does his indictment allege, as the FBI agent falsely claims, that he gave classified information to Pakistan or Australia or that he betrayed worldwide intelligence data. Nowhere in their briefings to the Senate Intelligence Committee did U.S. officials claim Pollard gave Israel sources and methods.

On the other hand, there is ample evidence that Pollard is being punished for a crime he didn't commit and is being disproportionately punished for the one he did: passing on satellite pictures and reports that showed U.S.-built missile and chemical factories in Iraq. American foreign-policy architects are as embarrassed today as they were angered then that their support of Saddam Hussein had been disclosed to Israel.

The anti-Pollard intelligence community never mentions the fact that the appellate decision in his case turned on narrow procedural grounds, not on the merits. The dissenting judge, Steven Williams, concluded that the government's breach of the plea agreement was "a complete and gross miscarriage of justice."

President Bush should correct this longstanding miscarriage of justice. Dozens of Americans have been convicted of the same crime as Pollard and have served an average of four years. Many more perfidious spies have received lesser or no punishment - about which the FBI is utterly mute. (There have been at least two Americans caught spying by Israel and who were quietly returned to their homeland.)

Just as the law should not be bent to release Pollard, neither should it be bent to keep him behind bars. Whatever the FBI's motives in characterizing Pollard as a bte noire, they are arrogantly undeclared, anachronistic, and irresponsibly vindictive.

The fair, moral, and principled thing for the President to do is show Pollard clemency. It is incumbent upon Prime Minister Ehud Olmert to insist upon it.

Kenneth Lasson is a law professor at the University of Baltimore and Director of the Haifa Summer Law Institute.

IMRA - Independent Media Review and Analysis
Website: www.imra.org.il