Archives: Even Pollard Deserves Better Than Government Sandbagging

By L. Gordon Crovitz - The Wall Street Journal: Rule of Law section - September 4, 1991

[See J4JP January 16, 2011 comment following the text below.]

Secretary of Defense Caspar Weinberger signed court papers in 1987 that urged a stiff sentence for an American caught spying. "The magnitude of the treason committed," Mr. Weinberger wrote, was so serious that "no crime is more deserving of severe punishment." Guided by the defense secretary's statement that he could not "conceive of greater harm to national security," federal Judge Aubrey Robinson sentenced the spy to the maximum term - life imprisonment.

Three cheers for a judge tough on crime, but hold on. Mr. Weinberger's claim that Jonathan Pollard committed treason by spying for Israel was bad law or curious diplomacy. The capital offense of treason is one of the few crimes defined by the Constitution. "Treason against the U.S. shall consist only in levying war against them, or, in adhering to their enemies, giving them aid and comfort."

Prosecutors never claimed that Pollard, who pleaded guilty to an espionage conspiracy count, either made war against the U.S. or by helping Israel helped an enemy. A prosecutor repeated the slur by calling Pollard's actions, "traitorous conduct."

With this kind of hyperbole muddying the case, it's not surprising that Pollard's lawyers have good arguments for a reduced sentence from the federal appeals court in Washington, which will hear Pollard's appeal next week.

It's hard to call up much sympathy for any spy. Even Pollard agrees that his crime deserves considerable time in jail. He took advantage of his job as a U.S. Navy analyst to pass intelligence to Israel. In 1986, he pleaded guilty to delivering secrets to a foreign government. Still, a nation of civil liberties deserves a new look at Pollard's life sentence in the penitentiary in Marion, Ill., where for the past five years he has spent 23 hours a day in solitary.

Pollard spied for an ally; his neighboring jail cells house former CIA agent Edwin Wilson, who armed Libya, and John Walker, the former Navy officer whose family sold military secrets to the Soviets. Pollard, who is Jewish, tried to justify himself partially as helping Israel, not hurting the U.S. He pointed out in a letter reprinted on these pages during the Persian Gulf War that many of the U.S. spy photos he supplied to Israel "were of a number of Iraqi chemical weapons manufacturing plants which the Reagan administration did not want to admit existed." Other material helped the Israelis evade detection when they bombed PLO headquarters in Tunis in 1985.

The most compelling reason to wonder if justice was done is not what Pollard did or didn't do. It is a more narrowly legal question: For all the Perfidy of Pollard's spying,

is there any justification for the behaviour of prosecutors and other government officials involved in this case?

It would have been one thing for Pollard to get a life sentence after a trial and conviction, but the key is that prosecutors instead got him to agree to a

plea bargain

. Prosecutors pledged in exchange to recommend only "a substantial period of incarceration and a monetary fine,"

not life imprisonment

. The bounds of prosecutorial zeal do not allow the government to

violate

plea agreements. The appeals judges will hear evidence, including the "traitor" red herring, that prosecutors breached their contract with Pollard.

Prosecutors promised in the plea agreement to detail for the judge only the "facts and circumstances of the offenses." In the usual course of events, this silence on a defendant's character would have given the sentencing judge a clear hint for a sentence far below the maximum.

Instead, Pollard's lawyers note that in court the prosecutor went beyond a recitation of the facts of his offenses. In addition to the traitor claim, the assistant U.S. attorney pressed for a stiff sentence by using the phrase "arrogance and deception" seven times to describe Pollard, with "vengeful," "contemptuous" and "venal" thrown in for good measure.

Prosecutors also trivialized his cooperation and admitted in court papers that they "wired" the plea by holding Pollard's [then-] wife hostage to a deal - much as prosecutors got Michael Milken to plead guilty by threatening to go after his brother. There is no rule against wiring pleas by hinging deals on freeing third parties from prosecution., but the Supreme Court requires strict judicial review to prove voluntariness.

The appeals judges are in no position to weight the harm to the U.S. from Pollard's spying, but they know that prosecutors were willing to settle for a plea that many court watchers guessed would justify a sentence of 15 to 20 years. If they want evidence of the impact of prosecutors going beyond the plea bargain, Exhibit A is the shorter jail terms given to Americans who spied for our enemies. A good case could be made for shooting all spies, but disproportionality should raise eyebrows:

Papers filed in Pollard's appeal argue that the question for the court is "limits on government when its competitive zeal and retributive anger have been aroused by an unpopular defendant." If these words sound like ACLU boilerplate, the Pollard appeal is also interesting as the most recent example of what be called civil-libertarian conservatism.

Pollard's lawyer on appeal is Theodore Olson, a former Reagan Justice Department official who was victim of a groundless investigation by one of Congress's special prosecutors. Mr. Olson's decision to take on the Pollard's case follows Robert Bork's success in reversing the RICO conviction of Robert Wallach in the Wedtech case. Mr. Bork, the former judge and trashed Supreme Court nominee, is also arguing the unconstitutionality of RICO as applied to commodities traders in Chicago.

The Pollard case raises broad questions about how to treat spies for our allies, but also presents a more constantly pressing domestic issue. That is that no crime entitles prosecutors to induce plea bargains with broken promises or bullying tactics. Nothing Pollard passed on to the Israelis would harm American interests as much as a declaration by judges that there are no limits on prosecutors.

J4JP Comment: January 16, 2011

In his 1991 analysis of the Pollard case, written 2 decades ago, Crovitz cites the punishments received by others who had spied for enemies of the US around the same time that Pollard spied for an ally, Israel. The far lighter sentences in these other cases dramatically illustrate how grossly disproportionate Pollard's life sentence is. What Crovitz did not know at the time was that the actual time-served would be even less (far less) than the sentences the others had received. <> To cite a few examples, here is what the actual time-served looks like:

  • Clayton Lonetree

    , sentenced to

    30 years

    , served only

    9 years

    .
  • Richard Miller, sentenced to

    20 years

    , served only

    six years

    .
  • Abdelkader Helmy, sentenced to

    4 years

    , served

    2 years

    .
  • Samuel Morrison, sentenced to

    2 years

    , served only

    three months

    !

Crovitz also deals with the false charge of treason leveled at Pollard by Weinberger and the prosecution. Again, Crovitz could not know at the time he wrote that during the upcoming oral arguments the government would be called to account by the judges on this matter. Caught red-handed, the government would apologize and admit that the false charge of treason was "regrettable." Nevertheless even after acknowledging its wrong-doing, the government never took any steps to mitigate the damage that had been done to Pollard by this false charge.

It should be noted that the appeal that Crovitz writes about was not a direct appeal of Pollard's sentence, but a far more difficult to win collateral appeal. Why not a direct appeal of the sentence? When Pollard's first attorney, Richard Hibey failed to file a timely notice of intent to appeal, he forever deprived Pollard of the right to a direct appeal of his Draconian life sentence.

Pollard lost his collateral appeal on technicality: that it was filed too late. Justice Stephen Williams, one of the 3 judges that heard the appeal, filed a minority opinion, strongly opposing the negative decision of the other 2 judges (Ruth Bader Ginsburg was one of them.) In his dissenting opinion, Williams terms the Pollard case, "a fundamental miscarriage of justice."

Keeping the above background information in mind, it is easy to appreciate the insight, accuracy and value of this 1991 article, by an author who was no fan or friend of Jonathan Pollard.

How much more egregious is the government misconduct described when now viewed with the hindsight of all the years that have passed since then. While others sentenced at the same time for far more serious crimes have long since gone free, Pollard continues to languish in prison, now serving year 26 of a life sentence with no end in sight.