Richard Cummings on a Barghouti - Pollard Swap:
A Quick Fix for a Broken Peace Process - PART I
Exclusive to IMRA - November 15, 2009
IMRA: 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 also the author of several novels. Cumming's essay on the logic and relevance of a Barghouti - Pollard swap as the most effective way to jumpstart the stalled Middle East peace process contains insights and an abundance of background information not readily available anywhere else in a single document. It is published in two parts; part one appears below. [Click here for Part II.]
By Richard Cummings
When the Palestinians blew up the fence on the Gaza-Egyptian border and poured into Egypt, the American plan for a deal to settle the crisis in the Middle East went up in flames, threatening the region with greater instability and the security and well-being of the United States and its allies in the region. Regimes in Egypt and Saudi Arabia, faced with considerable internal dissension, could fall over the broken promises to the Palestinians, with Al Quaeda inflaming the anger and gaining more recruits. The former President's plan was to have Israel put so much pressure on the people of Gaza that they would rebel against their Hamas rulers, returning control to America's Palestinian ally, Fatah, so it could reach a final settlement with Israel. Now it is clear that there can be no settlement without the participation of Hamas and the only Fatah leader who could possibly negotiate a reconciliation between Fatah and Hama, Marwan Barghouti, is serving five life sentences in an Israeli prison for murder. Founder of the militant youth wing of Fatah, Tanzim, a major force in the Al Aqsa Martyrs Brigade and the leader of the second intifada, Barghouti, has, by virtue of his role in the armed struggle of the Palestinians, the trust of the Palestinian street, so much so, that not only Fatah, but Hamas, has called for his release. Former President Carter wants his release and so did former Secretary of State, James Baker. The problem is that a unilateral release of Barghouti could make him look like an American and Israeli stooge, destroying his value. If the Americans want Barghouti out, it is reasoned, they will have to give up something of significance themselves to get Israeli cooperation in releasing Barghouti. That prize, many argue, is the freedom of Jonathan Pollard, the Jewish American serving a life sentence for spying for Israel. And as esoteric as all this sounds, readers of this thesis need very much to know the intricacies and intrigues surrounding what would amount to a "swap" of Pollard for Barghouti, because a failure in the Middle East will further reduce American's ability to defend its vital interests and justify ever more acts of terrorism. The demonstrations and petitions on behalf of Pollard that greet American presidential visits to Israel are testimony to how much Israel wants Pollard released, because in Israel, Pollard is regarded as "soldier of Zion" and Israel does not leave its soldiers behind. Hence, the logic behind "the swap."
PART I: POLLARD, THE QUID PRO QUO
There's a car sticker in the shape of a ribbon, like the kind that you see on American cars that says "Support The Troops" for sale on a pro-Israel website, that says, "Support The Swap-Jonathan Pollard/Marwan Barghouti. The site explains: "Make The Swap-Pollard for Barghouti. Jonathan Pollard has been a Prisoner of Zion for almost 20 years. FREE POLLARD NOW (the post is over a year old, as Pollard as been in prison now for almost 25 years. Pollard begins his 25th year on November 21, 2009.) It's been suggested that only the murderer Marwan Barghouti can hope to give Fatah a chance against Hamas. Who knew Fatah would be our best choice?!? Anyway, a trade in which the U.S. would release Pollard to the Israelis; the Israelis would release Barghouti to US and US would then release him to the PA (Palestinian Authority.) Fatah has a leader (unlike Abbas) and Pollard goes free. Not the best deal perhaps, but, maybe the ONLY one."
Israelis see Pollard as a hero, but not so for the most part among American Jews, who would, nevertheless, be much relieved to see Pollard set free. Barghouti, himself, is more than a hero to the Palestinians. He is seen throughout the Arab and Moslem world as a leader of the resistance against not only the Israeli occupation, but also the West's neo-colonialism. Some see him as a new Nelson Mandela, who, once let out of prison, was able to negotiate and end to apartheid. Israelis in high places see him as the only hope for a negotiated peace with the Palestinians. Former secretary of state, James Baker, has called for Barghouti to be released for similar reasons. He sees Barghouti was part of a new group of younger Palestinians with credibility in what is still the post-Arafat era. But just as there is more than a residue of resentment against Pollard in America for betraying a trust in the United States in favor of Israel, many Israelis see Barghouti as the symbol of terrorism who has blood on his hands who should spend the rest of his life in an Israeli jail, just as Pollard is rotting away his in a Federal prison in North Carolina. As their lives may now be intersecting in a critical way in a time of extreme danger, it is important to know what really led to their life sentences and under what circumstances they might be releases.
The Federal Corrections Institution 1, Butner, (FCI 1), the federal medium security prison in Butner, North Carolina is a grim, long, low building with a high wire fence It is where, since 1993, Jonathan Pollard has been imprisoned, serving a life sentence for spying for Israel. For seven years prior to his transfer to Butner, Pollard was held briefly in a D.C. jail following his arrest, and after sentencing, and then was confined over as year in Springfield, MO in a ward for the criminally insane (where he was not a patient) and then spent six years in solitary confinement, three stories underground, cut off from the world. When he was arrested on November 21, 1985, Pollard was front-page news, his operation a scandal, but now, he is an all but forgotten man in America.
I arrive at Butner on a Wednesday, October 24, with Pollard's pro bono attorney, Eliot Lauer, a highly respected litigator specializing in white-collar crime and SEC civil suits at Curtis, Mallet-Prevost, Colt & Mosle, a prestigious New York global law firm founded in 1838 with offices all over the world. You are greeted on entering the lobby by a flashing, colored sign that says, "WELCOME TO BUTNER. HAVE A NICE DAY." The burly guard behind the desk tells us our appointment with Pollard was scheduled for the following Wednesday and I ask to see Reynard McFadden, the prison official I had been dealing with to arrange the meeting, which has taken several months before the warden signed off on the request. McFadden appears in an instant, a large black man exuding authority, and sorts things out quickly. We fill out a number of forms and sign the agreement establishing the conditions for the two-hour visit from twelve to two.
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. He leads us through secured doors until we reach the cheerful, brightly lit cafeteria, with low, children-sized plastic blue tables and uncomfortable red plastic chairs. The officer explains that they had to replace the normal sized tables because visitors kept passing things under them to the inmates.
Pollard appears. Now in his early fifties, 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 yarmulka and a khaki prison jump suit and has the built of a wrestler. I find him to be pleasant and engaging, man, not withstanding the long period of his captivity, to have a playful sense of humor. Although the story of his career as a spy has been told in numerous books and articles, he says they are all, in one way or another, inaccurate. He wants to set the record straight.
Pollard 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 as to its location, bombed Saddam Hussein's Osirak nuclear facility without consulting the United States. Pollard found out while working as an analyst for Naval Intelligence that the United States had an agreement with Israel that the two counties would share intelligence, but that after the attack at Osirak, the United States started to secretly punish Israel by stopping the flow of intelligence to them.
Without knowing this, the Israelis approached American military intelligence regarding something they thought was suspicious going on in Iraq in Samarra. According to Pollard, he learned that Casper Weinberger, as 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 CW, a chemical weapons plant, being constructed there, he asked his superiors at Naval Intelligence why the United States had not informed Israel of this, one of them quipped that "Jews are sensitive about gas," referring jokingly to Auschwitz.
Pollard learned as well that Bechtel, the American construction giant which Weinberger had served as general counsel and for which then Secretary of State, George Shultz had served as CEO, was facilitating in the construction of the plant through a number of different companies that they were camouflaging as a "'dual use facility' that could be explained away as a fertilizer plant" that also produced pesticides. 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 noting. They did not know that the United States was providing Saddam Hussein with weapons of mass destruction, even though he had pledged to annihilate Israel, because the weapons were necessary for Saddam to use against Iran, the home of the Islamic revolution. Saudi Arabia endorsed giving Saddam this capability out of fear of Iran, but also, Pollard insists, because they supported his objectives with regard to Israel.
When his handlers asked Pollard to provide them with the information to confirm that what Weinberger had told them was true, he produced the "irrefutable evidence" that there was, in fact, a large chemical weapons facility. Examining the photographs, one of them said,"This is the stuff that the Americans told us doesn't exist." Pollard's handler then observes that "sometimes it's better to deal with a reliable enemy than an unreliable friend." Not knowing where it stood with the United States, Israel flew RF-4 reconnaissance planes to confirm what Pollard had shown them, losing one plane. Pollard came away from this episode with a diminished respect for Israel intelligence. "Anyone who took the trouble to dig could have put it all together." In addition to this information, Pollard also supplied Israel with the U.S. handbook on communications intelligence, a reference manual of radio-signals notations. The prosecution would argue was this a major breach of security, based on Casper Weinberger's affidavit to the court, but later were forced to acknowledge that this information was part of the legal flow of information to Israel. The court records show that when challenged , the 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 those foreign intelligence agencies that had received the entire document.
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 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," Pollard explains. This was the method used to circumvent the arms embargo against Iran. Israel would sell the equipment to Iran at a premium, with the profits from those 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 Iran's strategic Kharg Island, where its oil pumping facilities were located, that Iraq had been pounding, using strategic intelligence provided to Saddam Hussein by the CIA and the Pentagon. Pollard says that he also had knowledge of the Raptor-Hawk missiles, which 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."
How much did Pollard have to do with Iran-Contra? He replies by holding up two fingers of both hands, leaving several inches in between, signaling that while it was not major, it was by no means insubstantial. He insists that he also warned Naval Intelligence that it was "playing with fire" by arming Saddam Hussein. When I asked Pollard if he had ever heard of Sarkis Soyhanalian, the international arms dealer used by the United States to rearm Saddam Hussein after the first Gulf War, he says he did. Then he stops, looking over to Nick. There is a subtle relationship between Pollard and Nick, with Pollard knowing just when he should stop without being expressly told to.
Pollard also supplied Israel with the exact location of Arafat's headquarters in Tunisia and 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. Prior to this, Sharon had pushed the PLO into an inescapable position in Lebanon, as Israeli troops were about to annihilate them. Under international pressure, he allowed Arafat to fly to safety in Libya, a decision he clearly regretted, as the PLO was still committed to the destruction of Israel and were believed to be behind ongoing terrorist attacks. Pressure had come from the United States to placate its Arab allies, particularly Saudi Arabia, which provided support to the PLO. Israel, which never trusted the CIA, was highly critical of any support that it might be giving it, directly or indirectly. That any of Arafat's inner circle might have been CIA assets did not concern it, particularly after it learned just how much intelligence the United States was keeping from it to its endangerment. America was putting Israel in an untenable situation, not telling it about grave dangers to its national security and making it dangerous for it to take action against its enemies that the United States was aiding and abetting. This was certainly not a policy that Weinberger, Shultz, CIA Director Bill Casey, or for that matter, Attorney General Ed Meese would have wanted to make public. Moreover, Israel was using American aircraft that the United States had made possible for them to buy with American military aid, to hit targets the United States did not want attacked.
Pollard describes the American-Israel relationship as that between "the rapist and the victim." He explains that Americans misconstrue the nature of the relationship, believing Israel has a considerable amount of power in it. The billions of dollars of military aid America gives to Israel, he describes as a "subsidy for the American military industrial complex," with the money coming back to Lockheed Martin and other American military contractors. He says that America has forced Israel to buy American supplies, such as combat boots, and not from the Israeli company that made a better product. "America has forced any number of Israeli companies out of business, resulting in a loss of a great many jobs," he laments.
Pollard also insists that 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 comes from what he said to the FBI when he was first arrested that his 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 asked for, 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 to him that they had to pay him a salary, as he was now an official Israeli agent of LAKAM, the science and technology spy agency that, as Pollard describes it, was, in actuality, a "black bag operation that "supposedly got the nuclear trigger" for Israel." LAKAM was an official intelligence agency operated under the auspices of the Ministry of Defense. It was a competitor of the Mossad, and the two agencies, which ought to have cooperated, were fiercely competitive. 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 it down in 1988 after the Pollard scandal, as the Israeli government, at the time, asserted that the Pollard operation was an unauthorized deviation from its policy of not conducting espionage against the United States, an assertion that Israel would eventually withdraw. LAKAM was headed by Rafi Eitan, one of Israel's most brutal operatives, who kept pressing Pollard for more and more information after he had gotten what had initially wanted, placing Pollard in unnecessary danger, because, as he put it, he had become "addicted." Acknowledging his responsibility for Pollard's activities, he resigned before LAKAM was disbanded. Once in the clutches of LAKAM, he was trapped and couldn't pull out since Israel was in a position to hurt him. When I asked Pollard what he thought of Rafi Eitan, he replied, "Do you have a gas mask? He is one of the most disreputable and dishonest people I have had the misfortune to know. He is a poor liar and unethical to a fault." Eitan, now in his eighties, is currently a member of Ehud Olmert's cabinet as Minister for Pensioner Affairs, having won a seat in the Knesset by proclaiming he would use his Knesset position to help Pollard. Yet when the FBI came to Israel to interview him after Pollard was arrested in front of the Israeli embassy where he had been told he would have sanctuary but from which he was unceremoniously expelled, according to Pollard, Eitan incriminated him in a signed affidavit.
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 United States, Israel, that had a right to that information under an existing treaty with the United States that the United States had, itself, breached, placing its ally, Israel, in serious danger. Pollard was not indicted for treason, which involves spying against the United States for an enemy.
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 to 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 that the court could have imposed for Pollard's offense. Yet the government placed this admission in a Section titled "Factors Compelling Substantial Sentence," thereby denigrating the cooperation without any factual or legal basis for doing so. This, according to Pollard's current attorneys, was a breach of the Plea Agreement, which required the Government to bring to the sentencing court's attention the nature and extent of the cooperation, an act of extreme bad faith in violation of the requirement that the Government act in "good faith."
When Pollard appeared before Judge Aubrey Robinson III, an African-American judge appointed by Jimmy Carter, Robinson asked him 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 that everything was falling apart.
Joseph diGenova, the United States Attorney for the District of Columbia, submitted a Victim's Impact Statement to show Robinson the extent of the harm that Pollard had done to the United States, the "victim" of the crime. The damage done, 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 United States of "the quid pro quo routinely received during authorized and official intelligence exchanges with Israel." The VIS alleged that Pollard had, by virtue of his actions, "significantly damaged office morale and caused considerable emotional distress." It also pointed to the "thousands of pages" to Israel. As though quantity rather than quality was what mattered in an espionage case. Determined to get Pollard, DiGenova got Secretary of Defense, Casper Weinberger, to provide a memorandum to the court, explaining why what Pollard had done 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 compromises. Indeed, the memorandum only discusses the that sources may be compromised in the future, thus requiring countermeasures." Weinberger would later say that Judge Robinson had requested the submission, provoking diGenova to call him a "liar." That it was diGenova and not Judge Robinson, who asked Weinberger to write the memorandum, is of considerable significance, something Weinberger was clearly trying to obfuscate. DiGenova's boss was Attorney General Ed Meese, a long-standing Ronald Reagan confidant from California when Reagan was governor, just as Weinberger had been. And Meese was up to his ears in Iran-Contra.
Meese was the personification of the Reagan era. As Chief of Staff to Governor Reagan, Meese was instrumental in the decision to crack down on student protestors at People's Park in Berkley in 1969. The police killed one protestor and seriously injured hundreds more. Meese advised Reagan to declare a state of emergency, leading to a two-week occupation of the City of Berkley by National Guard troops. As President Reagan's Attorney General, he authored a draconian report on pornography and denounced Supreme Court justices he veered from "original intent." But it was Iran Contra that most characterized Meese's role as Attorney General.
His involvement in the Iran-Contra Affair 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/Contra Matters discloses Meese's direct involvement:
"Meese knew of the 1985 HAWK transactions, in which the National Security Council staff and the Central Intelligence Agency 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."
This was, in fact, grounds for impeachment, which Reagan avoided only because a second of impeachment of a sitting president would have reduced the country to the status of a banana republic. 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 Peres committed himself immediately to return all of the documents which were then used as evidence against Pollard. But Peres knew it was not a rogue operation, and acknowledged under oath before the Eban Commission that he had pledged, in a conversation with George Shultz the night Pollard was arrested, to turn over the documents. Further, it is highly doubtful that the Americans ever believed it was a rogue operation, because of the involvement of Israeli military hero, Aviam Sella, Pollard's first handler. No one with Sella's rank and standing would ever have been involved in such an operation without the knowledge of all the Israeli top brass, including Peres himself.
Meese needed to protect Reagan further in Iran-Contra and to assuage his rage over the spy operation. Meese's career would end ignominiously. After surviving several investigations of corruption by the United States Officer of Special Counsel, he failed to survive an investigation by the State Bar of California and resigned from the California bar, much as Richard Nixon had resigned from the bar to avoid the embarrassment of disbarment.
Weinberger, himself, had much to hide in Iran-Contra. He participated in the transfer of United States TOW anti-tank missiles to Iran and following the disclosure of his role Weinberger 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, 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. The maximum penalty for each count was five years in prison and $250,000 in fines. 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 and the motion to obtain access to the classified portions of the Weinberger Declaration. Judge Hogan denied all relief.
Determined to trash Pollard to the extreme. 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 Pollard's conduct. Both Pollard and Richard 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 these 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. However, Pollard's lawyer did not challenge this false and invidious comparison nor did he submit as evidence, available, public documents in the Walker case, that this was not so.
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 United States 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
And while Hibey argued that Wolf Blitzer's two interviews conducted in prison, with cameras and tape recorders were not in violation of the plea agreement because none of the material discussed was classified, he did not inform the judge that that Pollard had applied in writing for permission from the government to allow Blitzer to enter the prison to conduct the interviews and that he believed, in good faith, the government had granted permission based on the Bureau of Prison forms he filled out given to him by the Warden. Otherwise, how could Blitzer have entered the prison armed with camera and tape recorder had the government not granted permission? Under the plea agreement, Pollard had been required to apply to the Director of Naval Intelligence to get permission for the interview, but Pollard assumed that when the Warden had granted him permission for the interviews, it had been granted by Naval Intelligence. Yet, adding more fuel to the fire, Hibey told the judge that the interviews had been "unauthorized," making it seem that Pollard was a total renegade who could not be trusted.
Based on what Judge Robinsons considered a breach of the plea agreement by Pollard and by virtue of Weinberger's two declarations, Robinson sentenced Pollard to life in prison, even though the average sentence for others who had committed the same offense, passing classified information to another country without intending to hard the United Sates, 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. 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, cannot fathom why the notice of appeal was not filed, particularly since Richard Hibey was an experienced criminal attorney, having served as an Assistant U.S. Attorney and having 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 burden of proof that direct review and which was the major reason why Pollard's first habeas corpus petition was denied.
DiGenvova argues that the life sentence carries automatically with it the possibility of parole and Pollard could have applied after ten years. He has not done so, on advice of counsel, which is of the opinion that if Pollard applied, he would certainly be turned down, the reason being that without access to the sealed portions of the Weinberger Statement, there could be no way to rebut the inevitable Government's denial with the old excuse that Pollard was "so bad" and if you knew what was in the Declaration, you would know what he really did. Such a denial would have obliged Pollard to wait another fifteen years to apply again and without access to the sealed materials, Pollard would be a "sitting duck" at a parole hearing.. And so he remains in Butner, unwilling he says, to be traded for the release by Israel of Fatah militant, Marwan Barghouti, who is also in prison for life, because "Barghouti is a terrorist and a murderer with blood on his hands" who, if released, would resume his terrorist activities. This echoes one of the allegations about Pollard as to why he deserved life, that if let out, he would resume his activities, which may have resonated two decades ago but today is patently absurd.
Pollard, a self-acknowledged Jewish nationalist, had to sue Israel to give him Israeli citizenship, which they finally did in 1995, and again, as a result of legal action, Israel ended years of denial, and, in 1998, officially acknowledged that Pollard was their agent. 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 his betrayal by Israel. When I ask him what he would do if he were released, he says, "I will go home, to Israel."
Pollard's current lawyers, Eliot Lauer and Jacques Semmelman have exhausted all of Pollard's avenues of appeal. It does Pollard no good that Judge Stephen Williams, United States Circuit Court of Appeals, in dissenting from the court's denial of a writ of Habeas Corpus, wrote that he would have vacated Pollard's sentence "because the government's breach of the plea agreement was a fundamental miscarriage of justice."
When Lauer and Pollard entered the case, they saw there were sealed documents in the court file. They asked the Department of Justice to allow them access, the purpose being to present a clemency application to President Clinton, who was about to leave office. In order 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 pursuant to which the materials had been placed under seal in 1987, to allow them to see the materials. The Government opposed their motion on two grounds: they had no "need to know," inasmuch these 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." On these grounds, the District Court denied their motion for access.
Congressman Anthony Weiner (D-NY) wrote to the Department of Justice to know why they were given the wrong security clearance, and, who, if anyone, had been allowed access to the materials by the DOJ since the sentencing. After a considerable delay, the DOJ wrote back explaining that t, but as a very technical matter the clearance would only take effect with their showing of a "need to know." This amounted to an admission that the Government had lied when it told the court that they lacked the proper security clearance, separate and distinct from their "need to know." Also, the DOJ admitted that since November 1993, it had allowed access on 25 separate occasions, which contradicted when it had argued to the court that no one had any interest in the materials.
Lauer and Semmelman filed motions 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 their motions, supposedly because their underlying objective in seeing the court records was to prepare a clemency application. He reasoned by way of Alice in Wonderland, that this somehow implicated the separation of powers and precluded the court to exercise jurisdiction over their motion. The decision was 2-1 against Pollard, and was based on a lack of jurisdiction. Lauer and Semmelman appealed all the way to the Supreme Court, which declined to hear the case. Pollard was repeatedly denied his day in court, on a technicality only, not substance, from the lower court to the Court of Appeals all the way to the Supreme Court, all of which refused to hear the case. Lauer and Semmelman 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 petition for executive clemency submitted on Pollard's behalf by Lauer and Semmelman to former President George W. Bush at the end of his term was given the green light by top White House officials but was never acted upon by the president. Pollard's petition remains on President Obama's desk, still awaiting response.
I said by goodbyes to Pollard, who was escorted out of the visiting room by a guard. It is one thing to visit someone in prison and another, to leave. You go home and he stays there, in Pollard's case, unless something happens, until he dies. And while he serves the hardest time possible, he contemplates a statement made by Weinberger shortly before his death. In a 2004 interview, he said the Pollard issue was "a very minor matter, but made very importantIt was made bigger than its actual importance." Weinberger took the real reasons for the life sentence to the grave.
--End of Part I -
See Also: Part II: Richard Cummings on a Barghouti - Pollard Swap: A Quick Fix For A Broken Peace Process