Obama's tin ear

Jonathan Pollard is being severely punished for deeds he never committed.

Kenneth Lasson - The Jerusalem Post - December 17, 2014

Virtually all Israeli leaders and a large number of Americans in high places have made pointedly pleas urging the president to free an ailing Jonathan Pollard from prison.

The former navy intelligence agent was convicted in 1985 for having passed classified information to Israel. He has already served 30 years of a life sentence which was by far the harshest ever meted out for the offense he committed (the average term for which is a fine or two to four years' imprisonment).

On this issue Obama has failed even to offer the courtesy of a reasoned response, much less commit an act of clemency that would both improve US-Israeli relations and serve our traditional values of fairness and justice. In fact the president has rarely exercised clemency, a unique constitutional power that has been used liberally by many of his predecessors, including those for whom he has expressed great admiration. Abraham Lincoln, for example, pardoned, commuted or rescinded the convictions of 343 people during his four years as president. Franklin Roosevelt released an average of 900 during each of his terms. Ronald Reagan, a total of 406. In stark contrast, Obama has to date pardoned only 61 people, fewer than any president since James Garfield (who served only four months before being assassinated in 1881).

The exercise of clemency should rightfully reflect a measure of compassion, but also conscientiously consider the facts. The official "victim impact statement" offered by prosecutors in Pollard's case did not impute to him any significant damage to American interests - a conclusion publicly conceded by the intelligence community only last year. It is now widely acknowledged that the vague charges initially leveled against him for somehow causing the then-unexplained loss of US agents were for crimes actually committed by two others: Aldrich Ames and Robert Hanssen. (Mr. Ames was finally caught and convicted in 1994, Mr. Hanssen in 2001.) The real reason that the intelligence community persisted so long in its anti-Pollard whispers was more likely its lingering antipathy toward Israel for having destroyed Iraq's nuclear reactor in 1981 - shortly after which the Israelis were cut off from their traditional access to American intelligence. Pollard wrongly took it upon himself to remedy that failure.

The widespread claims that he committed treason were gratuitous opinions devoid of any factual basis and never a part of the criminal case against him. Treason has a Constitutional definition - consorting with the enemy during wartime - which is wholly inapplicable here. Likewise, it was never either alleged or proven in court that Pollard was paid handsomely for his efforts. He was acting solely on behalf of Israel, which has long been the lone reflection of American-style democracy in the Middle East. That fact itself should be more than enough to justify clemency.

Many of the major decision-makers who were intimately involved in the Pollard case have come forward to issue public calls for his release. They include over 40 members of Congress, former secretaries of state Henry Kissinger and George Shultz, former senators Dennis DeConcini and David Durenberger (both of whom served on intelligence committees), former assistant secretary of defense Lawrence Korb, former FBI director William Webster, and James Woolsey, former director of the CIA, undersecretary of the navy and US negotiator with the Soviet Union.

Virtually the whole of the Israeli Knesset - including, remarkably, representatives of the Arab parties - have joined the chorus for clemency, along with hundreds of religious leaders of different faiths from around the world. Many have noted the recently disclosed hypocrisy of America's spying on Israel over the past quarter-century during all of which time our intelligence community was piously condemning Pollard's alleged perfidy. In fact it is now more clear than ever that he is being severely punished for deeds he never committed nor was ever charged with committing.

You don't have to go to law school to understand how much this violates bedrock American principles. Jonathan Pollard's life sentence makes "equal justice under law" seem like little more than a palsied proverb. Obama should open his ears to the pleas for clemency. With a simple flourish of his pen, he can demonstrate heretofore hidden qualities of courage, character and compassion.

The author is a professor of law at the University of Baltimore. His email is klasson@ubalt.edu.