Understanding the Pollard Parole Canard

Gil Hoffman - The Jerusalem Post - March 22, 2013
Excerpt from Frontlines: "Obama and Netanyahu: Closer... but still far apart"

The one issue in which the differences between Prime Minister Netanyahu and President Obama appears most stark is the fate of Israeli agent Jonathan Pollard. Netanyahu would like Obama to commute Pollard's life sentence to the more than 27 years he has served.

This is what Obama had to say about Pollard in an interview with Channel 2 last Thursday: "This is an individual who committed a very serious crime here in the United States. He has been serving his time. There is a justice system that allows for periodic review of his sentence and the potential for him ultimately being released; and the way, you know, I as president function here is to try and make sure that I am following the basic rules of that review.

"I have no plans for releasing Jonathan Pollard immediately, but what I am going to be doing is to make sure that he, like every other American who has been sentenced, is accorded the same kinds of review and the same examination of the equities that any other individual would provide. I recognize the emotions involved in this. One of the strengths of the Israeli people is that you think about your people wherever they are. And I recognize that. I am sympathetic.

"I think that people have to understand that as the president, my first obligation is to observe the law here in the US and to make sure that it is applied consistently. As you know that there are a lot of individuals in prisons in the United States who have committed crimes who would love to be released early as well. I've got to make sure that every individual is treated fairly and equal."

There are three main problems with what Obama said about Pollard, which Netanyahu might have pointed out if he was not doing his best to get along with the president.

The first is that Pollard is suffering from failing health and multiple ailments that require urgent medical treatment and proper nutrition, neither of which are available to him in prison. Should Pollard die in prison under Obama's watch, it would deal a devastating blow to the president's goal of improving his image among Israelis.

"Every day that he survives now is miraculous," Pollard's wife, Esther, said. "He is 58 but he is the physical equivalent of a 70- or 80- year-old because he went though seven years of solitary confinement, each of which is the equivalent of multiple years because of the harsh conditions and stress."

The second problem is that the "periodic review" Obama referred to is a parole procedure that, due to key legal reasons, does not apply to Pollard. Assuming he lives until then, Pollard is technically eligible to request parole in November 2015, on the 30th anniversary of his arrest.

But parole is not relevant for Pollard because his judge, his prosecutor and the government are on record in his sentencing docket as emphatically denying early release at any date, making it certain he will be refused.

Pollard's lawyers would not be able to effectively contest those recommendations because they have been prevented from seeing the classified portions of his sentencing file. The lawyers received beyond top secret clearance from the government for the purpose of seeing the file and then they were not permitted to see it because a court ruled that they lacked a "need to know".

The lawyers even asked to see the file while being monitored and without taking notes and were told no. They went all the way to the Supreme Court to get the right to view the documents, which have been seen by many people who oppose Pollard's release. But the Supreme Court refused to hear the case, leaving Pollard no legal redress other than a commuting of his sentence by the president.

If parole would be turned down and the case set aside, it would not be revisited again for 10 or 15 years. It would be hard for a president to go against that kind of recommendation and grant clemency to a prisoner whose case was set aside by the parole commission.

Due to a plea bargain that Pollard signed to avoid a life sentence, but which was not honored by the prosecution, he did not have a trial. Because of mistakes made by his lawyers without his knowledge, he did not have an appeal. The merits of his case have never been heard in court.

The final problem with what Obama said about Pollard is that the parole system was never intended to address an unjust sentence - just good behavior. Parole lets sentences stand but allows for early release.

If the government decides to re-arrest a paroled prisoner again for any reason, it may do so and re-imprison him for the full term of his original sentence. Due to the laws at the time of Pollard's sentencing, his life sentence is for 45 years, which would end in 2030 when he would be 70 years old.

There are also conditions for parole, which usually include staying in the US where prisoners can be monitored and subjected to regular review. These would prevent Pollard from moving to Israel and starting a new life.

Former CIA director R. James Woolsey suggested that Pollard's sentence was unjust in an interview with America's National Public Radio on Wednesday. He noted that America has caught several spies for friendly countries, including spies for Greece, South Korea and the Philippines, and sentenced them to four to seven years.

"I really take the view now that if someone says he should not be released after 28 years, just pretend that he's a Filipino-American or a Greek-American and pardon him," Woolsey said. "I see no reason why people should treat a Jewish- American who spied for Israel on those grounds more harshly than they treat a Filipino-American who spied for the Philippines or a South Korean-American who spied for South Korea."

Pollard used every available avenue in the justice system to which Obama referred, and none of them have addressed the lack of proportion Woolsey pointed out.

The only remaining avenue is the request for executive clemency that Pollard filed three years ago, which Netanyahu and President Shimon Peres endorsed.

Peres, who reportedly gave Obama a petition for Pollard's freedom signed by more than 200,000 Israelis, and Netanyahu are not going to complain publicly about what Obama said about Pollard because they desperately want to get along with the US leader.

But if Obama hopes to permanently improve his image in Israel, Pollard arriving at Ben-Gurion Airport would likely make more of an impression on Israelis than the president's own positive visit to Israel.

The above article is excerpted from a longer article entitled "Obama and Netanyahu: Closer... but still far apart" (Jerusalem Post 22/03/13).