Passover and Jonathan Pollard

[May be reprinted with appropriate attribution.]

Perhaps the most symbolic of all Jewish holidays, Passover above all celebrates redemption. This is the time to remember deliverance from Egypt, to appreciate the renewal of spring, to contemplate the meaning of freedom.

For Jonathan Pollard, the American found guilty over two decades ago of passing classified information to Israel, Passover is even more poignant. For the past twenty-two years he has been confined to a federal penitentiary, having been sentenced to life in prison with a recommendation that he never be paroled.

No one, not even Pollard himself, argues his innocence - only about the severity and disparity of his punishment. The average term given to those convicted of spying for hostile foreign countries is 12 years; for giving secret data to friendly nations as Jonathan did, four.

Fifteen years ago, the United States Court of Appeals for the District of Columbia rejected Pollard's petition to have his term reduced. The two judges in the majority ruled against him wholly through an analysis of procedural technicalities that even law professors found hard to fathom. "The issue before us," they added, "is not whether a life sentence was appropriate punishment for Pollard's crime, still less whether we ourselves would have imposed such a sentence." Unfortunately for Pollard, their cold dissection of legalistic niceties simply missed the forest for the trees.

Not so their brother, Judge Stephen Williams, who perceived with crystal clarity the plain injustice of Pollard's plight. His sharply worded dissension was that the government reneged on each of the explicit promises it had made to Pollard in return for his co-operation - in particular, that the prosecutors broke their promise to ask the court for something less than the maximum sentence. The government engaged in "a flagrant violation of the agreement's spirit" when it presented highly prejudicial and inflammatory memoranda from then-Secretary of Defense Caspar Weinberger - documents that Pollard's attorneys have never been permitted to challenge.

As in the Book of Exodus (part of which is read during this week's holiday), the biases and fallibility of human judges are bound up in dramatic paradoxes. It is ironic that the two majority judges (Ruth Bader Ginsburg and Charles Silverman) were Jewish and that Williams was not, and that Pollard's appeal was heard on Rosh Hashanah, the Jewish New Year.

It is no less incongruous that Israel, the prime beneficiary of Pollard's classified data about Iraq's chemical and nuclear capability, refused him the asylum of its embassy - nor, for that matter, that the Jewish people, whose latest incarnation as a state can be dated to the liberation of Buchenwald some 60 years ago, are still seeking a secure place in the community of nations some 3,000 years after their deliverance from Egypt.

Who wants to hear anything more about passing over Jonathan Pollard?

Not the government of the United States, or its criminal justice system, which is based on Judeo-Christian principles of fairness but is not always able to correct its errors.

Not the government of Israel, whose prime ministers have had numerous opportunities to raise their voices in Washington on behalf of its acknowledged agent, but not one of whom - with the notable (and failed) exception of Binyamin Netanyahu - has ever done so.

Not the American Jewish establishment, which early on in the Pollard saga saw fit to muffle itself - out of both high embarrassment and fear that to protest Pollard's mistreatment would subject it to the traditional anti-Semitic canard of dual loyalty.

Not the average American, who is (perhaps understandably) preoccupied with the excesses of and plummeting confidence in the Bush Administration - its conduct of the war in Iraq, its failed immigration policies, its political high-handedness.

No, the only people who seem to care about Pollard nowadays are those who always have, but with virtually no power to do anything for his release: his wife, a few scattered activists - and the rank- and-file of American and Israeli Jews.

Many law professors and libertarians have also taken up the cudgels for Pollard because they truly believe that American justice requires them to make things right when the system goes wrong. They agree with the assessment of Judge Williams, who characterized his plight as "a gross miscarriage of justice." That Pollard is Jewish and his goal was to help Israel are beside the point: anyone subjected to the same unfair treatment deserves redress.

Why is Pollard still in prison?

Few Americans, Jewish or otherwise, would liken Pollard to Macbeth, but Judge Williams did. The case reminded him "of Macbeth's curse against the witches whose promises - and their sophisticated interpretations of them - led him to doom: "And be these juggling fiends no more believ'd / That palter with us in a double sense: / That keep the word of promise to our ear, / And break it to our hope."

The sadder, more demonstrable irony is that Jonathan Pollard must celebrate this season of hope still gazing out upon the flowers of spring through the iron bars of a sweltering prison cell - just as he has for the past 22 years of his life.

Kenneth Lasson is a law professor at the University of Baltimore.