The U.S.'s treason libel against Pollard

Seth Lipsky - Haaretz - February 17, 2014

Jonathan Pollard is in the news again this week, after our former director of Central Intelligence, James Woolsey, told Israel's Channel 10 that he suspects anti-Semitism could be a factor in America's refusal to release the spy from his life sentence. I hadn't ever heard such a blunt statement from any high government officer. It sent me back to the court record - and to Shakespeare's Macbeth, in which the witches introduce the drama with the warning that "fair is foul, and foul is fair."

Macbeth got into it because of a memorable dissenting opinion by a judge of the United States Court of Appeals for the District of Columbia Circuit. That's the bench sometimes referred to as the mini-Supreme Court, in that it gets a lot of the disputes that directly involve the federal government. It was the court that spurned Pollard's appeal for a new sentencing hearing and, in effect, doomed him to a life sentence on a plea bargain on a single count.

The ruling against Pollard was from a three-judge panel. The two judges in the majority were - and still are - widely admired (including by me): Ruth Bader Ginsberg, who would eventually be elevated to the Supreme Court, and Laurence Silberman. They reckoned Pollard hadn't made his case and, the key point, missed his chance to appeal his sentence. He waited too long. Their opinion struck me, given all that was involved, as pettifoggery.

No so the dissent by Judge Stephen Williams. He didn't accuse anyone of anti-Semitism. He sided against Pollard on the question of whether the government had improperly coerced his plea by threatening his wife. Williams also supported trial court judge, Aubrey Robinson, who'd handed down the original life sentence, against the claim that the judge ought to have recused himself during the bid for a new sentencing hearing and that he should have held a hearing on contacts he'd had outside of open court.

Williams, however, went on to find that the government had breached its side of the plea bargain agreement in a way that was a "fundamental miscarriage of justice." He made some preliminary comments about the general judicial insistence "on a reasonable and not a niggling interpretation for plea agreements," given that the "defendant has given up his right to a trial that satisfies due process." Wrote he: "If fulfillment of the promise is to mean anything, it cannot refer only to the promise pared to its literal bone."

The government, as Williams reprised it, made three promises. One was to bring to the court's attention Pollard's cooperation and "represent that the information supplied was of 'considerable value' " Two was to refrain from seeking a life sentence. Third was to limit what it said to "the facts and circumstances." Williams concluded that the government "complied in spirit with none of its promises; with the third, it complied in neither letter nor spirit."

It took Williams much of an opinion of 5,000 words to sketch the sleaziness, the slyness of the semantic evasions, by which the government broke its promises. To those of us invested in both the American Constitution and the Jewish struggle, it was a heart-breaking picture. The most galling feature - at least to my ear - was the use by the government of a statement from the defense secretary at the time Pollard committed his crime, Caspar Weinberger.

Weinberger had ginned up a memorandum saying that "the punishment imposed should reflect the perfidy of [Pollard's] actions, the magnitude of the treason committed, and the needs of national security." What was so appalling about that - and pointedly marked by Williams - is the use of the word treason. For the Constitution provides that "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

Both the government and Weinberger knew what they were doing. They could have won a severe sentence without that libel. Yet they spoke of the crime as if Israel were an enemy. It was inaccurate. It was wrong. And it was a violation of a written contract. It may be that one dissenting opinion doesn't amount to a verdict. But given that Judges Silberman and Ginsberg boiled down their opinion against Pollard to the timing of his motion, Williams is the most substantive review we have.

It was at the end of his dissent that Williams quoted Macbeth. He said he didn't want to be "too critical" of the government and allowed that the analogy was "inexact." But he said the case reminded him of "Macbeth's curse against the witches whose promises - and their sophistical interpretations of them - led him to doom." Then the famous lines: "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."

Seth Lipsky is editor of The New York Sun. He was a foreign editor and a member of the editorial board of The Wall Street Journal, the founding editor of The Forward and its editor from 1990 to 2000. His books include "The Citizen's Constitution: An Annotated Guide" and most recently "The Rise of Abraham Cahan."

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