Post Bush Redux: The Case of Jonathan Pollard Raises Troubling Questions
J4JPnews - January 25, 2009
President George W. Bush is gone and Jonathan Pollard remains in prison.
Of all the clemency petitions that remained unsigned on George W. Bush's desk when he left office on January 20, 2009, Jonathan Pollard's was the only one which morally compelled the president to take action to rectify a two decades-long injustice.
President Bush abdicated his responsibility as the President of the United States when he failed to invoke his powers of clemency to rectify a case where the injustice is so clear, and no other avenue of relief exists. His failure to act in this case, merely compounds the injustice done to Jonathan Pollard.
J4JP has been repeatedly asked why President Bush, who boasts of such strong ties to Israel and of such friendship to the American Jewish community, would just walk away from a case that is so often exploited to call into question the reliability of Israel as an ally and the loyalty of the American Jewish Community.
We continue to be asked how it is that President Bush could just ignore the glaring injustice and leave Jonathan to languish in prison, G-d forbid, unto death.
We don't know why.
But perhaps the following article, written by renown author, Richard Cummings may shed some light on the question and explain why Jonathan Pollard has been treated so harshly and why he remains in jail, unjustly, to this day. Originally published just before Mr. Bush left office, J4JP recommends reading this article again, in light of Mr. Bush's failure to rectify this gross miscarriage of justice in the waning hours of his term in office.
The Case of Jonathan Pollard Raises Troubling Questions
by Richard Cummings
[Originally published December 14, 2008 as Worldnetdaily Exclusive News Analysis: Did U.S. give WMD to Saddam Hussein?]
The federal medium security prison in Butner, N.C., is a grim, long, low building surrounded by a high wire fence. It is where, since 1993, Jonathan Pollard has served a for spying for Israel.
Seven years prior to his transfer to Butner, Pollard was held briefly in a Washington, D.C., jail following his arrest and then was confined for more than a year in Springfield, Mo., in a ward for the criminally insane. He then spent six years in solitary confinement, three stories underground, cut off from the world.
Since his arrest Nov. 21, 1985, Pollard has consistently expressed remorse, but the hostility against him is still manifested by those who describe him as a traitor who acted not on behalf of Israel, but for money - a charge he vigorously denies.
I arrive at Butner Wednesday, Oct. 24, with Pollard's pro bono attorney, Eliot Lauer, a highly respected litigator specializing in white-collar crime and Securities and Exchange Commission civil suits at Curtis, Mallet-Prevost, Colt & Mosle, a prestigious New York law firm founded in 1838 with offices all over the world.
Visitors are greeted on entering the prison lobby by a flashing, colored sign that says, "WELCOME TO BUTNER. HAVE A NICE DAY."
Nick appears, a slight, pleasant man with rosy cheeks, who is to monitor our visit. He is from Naval Intelligence, where Pollard worked when he engaged in espionage for the Israelis. The three of us are led by an officer down a long, immaculate hallway lined on one side with Ansel Adams photograph prints.
Nick leads us through secured doors until we reach the cheerful, brightly lit cafeteria, with low, child-sized plastic blue tables and uncomfortable red plastic chairs.
Pollard appears. Now in his early 50s, he has a neatly trimmed graying beard and closely cropped hair, a change from his previous incarnation when he let his hair grow long.
He wears a small yarmulke and a khaki prison jump suit, and has the built of a wrestler. He quickly zeroes in on the background of one piece of information that the Israelis were particularly anxious to have.
In 1981, Israel, using information supplied by American intelligence, bombed Saddam Hussein's Osirak nuclear facility without consulting the U.S. Pollard found out while working as an analyst for Naval Intelligence that the U.S. had an agreement with Israel that the two counties would share intelligence. But after the attack at Osirak, the U.S. started to secretly punish Israel by stopping the flow of intelligence.
Without knowing this, the Israelis approached American military intelligence regarding something going on in Samarra they thought was suspicious.
According to Pollard, he learned that Casper Weinberger, then-secretary of defense, had "assured them that nothing was going on." When Pollard discovered, before he volunteered to spy for Israel, that there was, in fact, a chemical weapons plant under construction there, he asked his superiors at Naval Intelligence why the U.S. had not informed Israel. One of them quipped that "Jews are sensitive about gas."
Pollard learned as well that Bechtel - the American construction giant for which Weinberger had served as general counsel and for which then-Secretary of State George Shultz had served as CEO - was facilitating the construction of the plant through a number of different companies. The firms were camouflaging it as a "dual-use facility that could be explained away as a fertilizer plant."
"How much fertilizer does Iraq need?" Pollard speculates with irony.
According to Pollard, the plant cost "hundreds of millions of dollars to build" and required waivers from the Department of Defense and the State Department.
It was at this point that Pollard decided he had no choice but to spy for Israel. As a Jew, he was haunted by the Holocaust and concluded that what he had learned meant Israel was faced with an "existential threat" about which it knew nothing.
Israel did not know that the U.S. was providing Saddam Hussein with weapons of mass destruction, even though he had pledged to annihilate Israel. The weapons were deemed necessary for Saddam to use against Iran, the home of the Islamic revolution.
When Pollard's handlers asked him to provide them with the information to confirm that what Weinberger had told them was true, he produced the "irrefutable evidence" - there was, in fact, a large chemical weapons facility.
Examining the photographs, one of them said, "This is the stuff that doesn't exist." Pollard's handler then observed that "sometimes it's better to deal with a reliable enemy than an unreliable friend."
Not knowing where it stood with the U.S., Israel flew RF-4 reconnaissance planes to confirm what Pollard had shown them, losing one plane.
In addition to the information, Pollard also supplied Israel with the U.S. handbook on communications intelligence, a reference manual of radio-signal notations. The prosecution would argue this was a major breach of security, based on Weinberger's affidavit to the court, but later were forced to acknowledge it was part of the legal flow of information to Israel.
The court records show that when challenged, the U.S. government grudgingly acknowledged that one third of the compendium had nonetheless been officially denied to Israel. Citing "national security" considerations, the government also declined to provide the court with the list of foreign intelligence agencies that had received the entire document.
Silenced in solitary
But there well may have been other reasons why the Reagan administration wanted Pollard silenced in solitary and then at Butner.
Pollard had an official assignment with regard to Iran and Israel. His job, he explains, was to "write an assessment of what air defense systems were available on the open market so that Israel would make the equipment available to Iran."
This was the method used to circumvent the arms embargo against Iran. Israel would sell the equipment to Iran at a premium, with profits from the sales going, though a series of conduits, to the Contras fighting in Nicaragua. The result was that he was indirectly providing Iran with the tools it needed to protect its strategic Kharg Island, where its oil pumping facilities were located. Iraq had been pounding the site, using strategic intelligence provided to Saddam by the CIA and the Pentagon.
Pollard says he also had knowledge of the Raptor-Hawk missiles that were shipped from Israel to Iran by way of Portugal.
"Bill Casey wanted me out of the country," he asserts. "To understand my case," Pollard sums up, "it has everything to do with Iran-Contra."
Pollard also supplied Israel with the exact location of Arafat's headquarters in Tunisia and with information about Libya's radar capabilities, enabling Israel to bomb it without detection as its Lockheed Martin F-16s flew towards their target. Arafat escaped, but a number of his aides were killed.
Moreover, Israel was using American aircraft that the U.S. had made possible for them to buy with American military aid, to hit targets the U.S. did not want attacked.
Pollard also insists he never sold the information to Israel and that he didn't spy for any other country. The suspicions that he sold information to Pakistan come from what he said to the FBI when he was first arrested. Pollard's Israeli handlers had told him to say that he was a spy for Pakistan, so that Israel would not be implicated.
And when he delivered the first information that the Israelis had requested, he turned down the $10,000 they had offered him. It was only after he had made several deliveries to them that his handlers explained that they had to pay him a salary, as he was now an official Israeli agent of LAKAM, the science and technology spy agency.
LAKAM, as Pollard describes it, was, in actuality, a "black bag operation that "supposedly got the nuclear trigger" for Israel." It was an official intelligence agency operated under the auspices of the Ministry of Defense.
LAKAM was a competitor of the Mossad, and the two agencies, which ought to have cooperated, were fiercely combative. LAKAM severely embarrassed Mossad with the quality of information provided by Pollard, engendering Mossad's animosity towards LAKAM and Pollard. Regarded as a rogue agency by Mossad, it succeeded in shutting LAKAM down in 1988 after the Pollard scandal.
The Israeli government, at the time, asserted that the Pollard operation was an unauthorized deviation from its policy of not conducting espionage against the U.S., an assertion Israel would eventually withdraw when it recognized Pollard as its agent.
Pollard was indicted under 18 USC 794(c) of the 1917 Espionage Act on one count of conspiring to pass classified information to "the advantage of a foreign nation," in this case, Israel.
Specifically, Pollard was not indicted for treason under 794(b), which involves giving classified information to "the enemy of the United States in time of war," or under 794(c) "for the "intent or reason to believe" that the information "is to be used to the injury of the United States."
What Pollard did was to violate the Espionage Act in the least harmful manner, since he passed information to an ally of the U.S., Israel, that had a right to the information under an existing treaty. Pollard contends the U.S., itself, breached the treaty, placing its ally Israel in serious danger.
Pollard admitted his guilt and acknowledged that what he did was wrong. On the advice of his attorney, Richard Hibey, he entered into a plea deal. In return for giving up his right to a trial and to remain silent, Pollard agreed to plead guilty to a single count of conspiracy to commit espionage.
He also agreed to cooperate fully with the government, which he did over a period of 15 months, during which time he willingly underwent polygraph tests to confirm the veracity of the information he provided. In exchange, the government promised not to ask the court for a sentence of life in prison, the maximum sentence it could have imposed for Pollard's offense.
Yet the government placed the admission in a section titled "Factors Compelling Substantial Sentence," thereby denigrating the cooperation without any factual or legal basis. This, according to Pollard's current attorneys, was a breach of the plea agreement. The agreement required the government to bring to the sentencing court's attention the nature and extent of the cooperation. The attorneys regarded it as an extreme violation of the requirement that the government act in "good faith."
When Pollard appeared before Judge Aubrey Robinson III, the judge asked if he was prepared to enter a guilty plea, advising him that, irrespective of the plea agreement, the judge could still sentence him to life in prison. Pollard responded in the affirmative. There was, at that time, no reason to believe that would be the case. But soon after accepting the plea deal, Pollard found everything was falling apart.
Joseph diGenova, the U.S. attorney for the District of Columbia, submitted a Victim's Impact Statement, or VIS, to show Robinson the extent of the harm that Pollard had done to the U.S., the purported victim of the crime. The damage, the statement alleged, was the harm done to relations with other Middle Eastern countries, which "skewered the balance of power in the Middle East."
Pollard also, the document alleged, deprived the U.S. of "the quid pro quo routinely received during authorized and official intelligence exchanges with Israel." The VIS alleged Pollard, by virtue of his actions, had "significantly damaged office morale and caused considerable emotional distress." It also pointed to the "thousands of pages" delivered to Israel.
DiGenova had Secretary of Defense Weinberger provide a memorandum to the court, explaining why Pollard's actions merited life in prison. Pollard's defense counsel argued that even the sealed portions of the Weinberger Declaration did not allege that any agents died, or were even compromised or "that it had to replace or relocate intelligence equipment, that it had to alter communication signals, or that it has lost other sources of information, or that our technology has been compromised."
Indeed, the memo only discussed the possibility that "sources may be compromised in the future, thus requiring countermeasures."
DiGenova's boss was Attorney General Ed Meese, a longtime Ronald Reagan confidant from California when Reagan was governor, just as Weinberger had been. And Meese was up to his ears in Iran-Contra. His involvement was as a "counselor" and "friend" to the president, not technically as the nation's chief law enforcement officer, since what Meese advised Reagan raised serious questions of illegality.
Chapter 31 of the official Final Report of the Independent Counsel for Iran/Conta Matters discloses Meese's direct involvement: "Meese knew of the 1985 HAWK transactions, in which the National Security Council staff and the CIA were directly involved without a presidential covert-action finding authorizing their involvement, raised serious legal questions. The president was potentially exposed to charges of illegal conduct if he was knowledgeable of the shipment and had not reported it to Congress, under the requirement of the Arms Export Control Act (AECA) and in the absence of a Finding. ...When Meese got answers in his inquiry that did not support his defense of the president, he apparently ignored them, as he did with Secretary of State George P. Shultz's revelation on November 22 that the President had told him that he had known of the Hawk shipment in advance."
Meese clearly knew that Pollard had known about the HAWK missile transaction. That his U.S. attorney in Washington was recruiting Weinberger to denounce Pollard was no accident. This was a high profile case in which Reagan had taken an interest. He was furious with the Israelis about the Pollard affair and had summoned them to a meeting to explain themselves.
The Israelis implausibly continued to deny any knowledge of Pollard, claiming it was a "rogue operation," which only inflamed American sentiments further. In an attempt to pacify the Americans, then-Prime Minister Shimon Peres committed himself immediately to return all of the documents that were then used as evidence against Pollard
Weinberger, himself, had much to hide in Iran-Contra. He participated in the transfer of U.S. TOW anti-tank missiles to Iran, and following the disclosure of his role, he resigned as secretary of defense. Independent Counsel Lawrence Walsh placed Weinberger under indictment in 1992 after his resignation on five counts of obstruction of justice, perjury and making false statements in connection with congressional and Independent Counsel investigations of Iran-Contra.
The court dropped the obstruction count and one count charging a false statement made in a second indictment, leaving four counts. Before the January 1993 trial date, President George H.W. Bush pardoned Weinberger, denying any personal knowledge of Iran-Contra himself.
The U.S. District judge that presided over the case was Thomas Hogan. According to Special Prosecutor Lawrence Walsh, Judge Hogan kept delaying the Weinberger trial until the fall of 1992, when Bush lost the election and pardoned Weinberger. In 2003, the Pollard case was assigned to Judge Hogan, who was called upon to decide the claim that his trial lawyer, Richard Hibey, was ineffective for having failed to challenge the Weinberger Declaration. Judge Hogan denied all relief.
Determined to go after Pollard, Weinberger first submitted the 46-page pre-sentencing declaration, setting forth the government's views regarding damage allegedly caused by Pollard's actions, including predictions of the possible harm that might arise as a result of his conduct. Both Pollard and Hibey examined the declaration. Pollard and Hibey submitted their own memorandum, and the government replied.
However, portions of the government's submissions, some 35-40 pages distributed among five documents - including Weinberger's specific projections of possible harm and the sentencing transcript - were redacted from public view based on the government's assertion that the portions contained classified information.
On March 3, 1987 - the day before sentencing - Weinberger submitted a four-page Supplemental Declaration in which he now accused Pollard of having caused as much or greater harm to national security that any other spy in the "year of the spy" -a well-understood reference to the recent espionage cases of John Walker (head of the infamous Walker Spy Ring,) Jerry Whitworth, (a member of the Walker Spy Ring,) and Ronald Pelton. Each had spied for the Soviet Union, and each had been sentenced to life in prison just a few months earlier.
In addition, Weinberger's Supplemental Declaration falsely accused Pollard of "treason," a crime for which he had not been charged and which he had not committed. Treason, a capital offense, entails aiding an enemy of the U.S. in time of war. (Over four years later, an attorney for the government would admit in court that the government's use of the word "treason" at sentencing was "regrettable." However, the damage had been done). By comparing Pollard to Walker, Whitworth and Pelton, each of whom had been sentenced to life, and asking for a sentence commensurate with the harm done, Weinberger was unambiguously asking for life in prison. This was a material breach of the plea agreement
Based on what Judge Robinson considered a breach of the plea agreement by Pollard, and by virtue of Weinberger's two declarations, Robinson sentenced Pollard to life in prison. He made the decision even though the average sentence for others who had committed the same offense - passing classified information to another country without intending to harm the U.S. - was in the neighborhood of four to five years.
But Pollard's lawyer failed to file the one-page Notice of Appeal of the sentence, which he could have done by walking down the hall to the appropriate office. Pollard's current lawyer, Eliot Lauer, points out that since the government was in substantial violation of the plea agreement, there was no question but that the sentence would have had to be set aside and that a new sentencing hearing would have been ordered.
Lauer, who, with his colleague Jacques Semmelman became Pollard's lawyers on a pro bono basis after the sentencing, says he cannot fathom why the notice of appeal was not filed, particularly since Hibey was an experienced criminal attorney. Hibey served as an assistant U.S. attorney and appeared as counsel of record for a number of high profile cases.
Lauer and Semmelman describe Hibey's failure to file the Notice of Appeal as "mind boggling." By not doing so, he deprived Pollard of any chance of direct appellate review of his life sentence. Any review could only be done thereafter via habeas corpus, which carries a much greater burden of proof than direct review and which was the major reason why Pollard's first habeas corpus petition was denied.
In 2005, an item appeared on the U.S. Prisons website saying "Pollard's life sentence to end in 2015." As Lauer has explained in a communication to the Israeli newspaper Haaretz, "under U.S. law in effect at the time of Mr. Pollard's activities, any prisoner sentenced to life in prison is presumptively entitled to parole on the 30th anniversary of the date of incarceration as the 'projected' release date, which is posted as such on the U.S. Prisons website.
On Nov. 21, 2015, Pollard will be presumptively entitled to parole. However, the U.S. government will still be entitled to oppose it.
Pollard, a self-acknowledged Jewish nationalist, had to sue Israel to give him Israeli citizenship, which finally was granted in 1995 as a result of legal action. In 1998, after years of denial, Israel officially acknowledged Pollard was their agent.
Meanwhile, he pressures the government of Israel to do more to get him released, while his wife, Esther, and his supporters in Israel agitate for him, condemning what they consider to be betrayal by Jewish state.
When I ask him what he would do if he were released, he says, "I will go home, to Israel."
When Lauer and Pollard entered the case, they saw there were sealed documents in the court file. They asked the U.S. Department of Justice to allow them access to present a clemency application to President Clinton, who was about to leave office.
To effectively present the petition, they needed to see the entire court record. After spending months getting the highest security clearance possible, "Top Secret," the Justice Department summarily denied them access, because they had no "need to know." They filed a motion in the U.S. District Court, asking for a modification of the 1986 protective order by which the materials had been placed under seal in 1987.
The government opposed their motion on two grounds: They had no "need to know," inasmuch the materials were (supposedly) of interest to no one, least of all the Clinton administration, and that they been accorded the wrong security clearance. They had received "Top Secret," while the materials were "SCI," Secure Compartmented Information.
Motions then were filed to modify the prior denial of access. The motions were assigned to Judge Hogan, who denied them. On appeal to the D.C. Circuit, Judge Sentelle insisted from the bench that there was no jurisdiction to hear the motions, supposedly because their underlying objective in seeing the court records was to prepare a clemency application. The judge reasoned that this somehow implicated the separation of powers and precluded the court to exercise jurisdiction over the motion. The decision was 2-1 against Pollard, based on a lack of jurisdiction.
Pollard's legal team appealed all the way to the U.S. Supreme Court, which declined to hear the case. Pollard repeatedly was denied his day in court, on a technicality only, from the lower court to the Court of Appeals all the way to the Supreme Court. His lawyers then wrote a lengthy "Executive Summary of the Legal Initiatives for Jonathan Pollard," which they have circulated to "seek the support of members of Congress, other elected officials, and organizational, communal and clerical leaders" in order to martial public opinion.
A letter to President Bush requesting access to the sealed court docket materials so they could prepare a serious clemency application based on the record, remains unanswered.
Pollard has been used off and on as a bargaining chip, with his release preconditioned by actions the U.S. wanted from Israel. During the negotiations over the Wye River Memorandum, brokered by the U.S. between Israel and the Palestinian Authority in October 1998, President Clinton playing a critical role. The president approached American ambassador to Israel Martin Indyk and raised the issue of Pollard. Indyk, suspecting that Netanyahu had brought up Pollard with Clinton, reminded Clinton that Rabin had asked for Pollard's release but that Clinton had not given him to Rabin. Clinton responded that what was fair did not matter but whether they could get a deal.
The Wye agreement Clinton was pushing would give the Palestinians autonomy in Gaza and the West Bank in exchange for a pledge by the PLO to renounce terrorism. It also required that there would be no further settlements in the occupied territories. Netanyahu resisted any accommodation with the Palestinians but had indicated a willingness to negotiate the release of 30 Palestinian prisoners.
Clinton asked his chief negotiator, Dennis Ross, whether releasing Pollard would help seal the deal.
"Is it a big political issue in Israel? Will it help Bibi (Netanyahu)?" Clinton asked.
Ross told Clinton that it was a big issue, because Pollard was considered a "soldier for Israel" and there was "an ethos in Israel that you never leave a soldier behind in the field."
But if Clinton wanted Ross' advice, Ross told him, he should not release him now.
"It would be a huge payoff for Bibi; you don't have many like this in your pocket. I would save it for permanent status. You will need it later, don't use it now."
In a footnote to his memoir, "The Missing Peace," Ross writes: "I also said I was in favor of his release, believing that he had received a harsher sentence than others who had committed comparable crimes. I preferred not tying his release to any agreement, but if that was what we were going to do, then I favored saving it for permanent status."
Clinton demurred. "I usually agree with you," he said, "but this stalemate has lasted so long that it has created a kind of constipation. Release it and a lot becomes possible. I don't think we should wait, and if Pollard is the key to getting it one now, we should do it."
But when CIA chief George Tenet reportedly threatened to resign if Clinton released Pollard, Clinton, using this as a pretext, changed course. The president, in effect, called Netanyahu's bluff on Ross' advice.
Netanyahu later confirmed that Clinton had in fact offered to released Pollard, as did others at the negotiations, but Clinton continued to deny it. Netanyahu did release 700 Palestinian prisoners and granted Ghazi Jabal immunity from prosecution, but to no avail. In the end, Netanyahu backed down and signed the accord in exchange for a promise by Clinton to review Pollard's case. Later, Malcolm Hoenline, a top U.S. Jewish leader, revealed Tenet told him that he never threatened to resign over the release of Pollard.
And while he serves the hardest time possible, Pollard himself contemplates a statement made by Weinberger shortly before his death. In a 2002 interview, Weinberger said the Pollard issue was "a very minor matter, but made very important. ... It was made bigger than its actual importance."
Weinberger took the real reasons for Pollard's life sentence to the grave.
The author, Richard Cummings, holds a Ph.D. in Social and Political Sciences from Cambridge University and is a member of the Association of Former Intelligence Officers. He taught international law at the Haile Selassie University. Prior to that he was attorney-adviser with the Office of General Counsel of the Near East South Asia region of U.S.A.I.D., where he was responsible for legal work in Israel, Jordan, Pakistan and Afghanistan. He is the author of a new novel, "The Immortalists," as well as The Pied Piper - Allard K. Lowenstein and the Liberal Dream and the comedy "Soccer Moms From Hell."