By Rabbi Pesach Lerner
Even a cursory glance at the facts which Yair Hoffman totally ignores in his article, “Re-examining the Pollard Issue” (www.5tjt.com <http://www.5tjt.com> – March 4, 2010) reveals a case which Appellate Court Justice Steven Williams described as “a fundamental miscarriage of justice.” Jonathan Pollard is currently serving his 25th year of a life sentence for an offence — that of spying for an ally– that has a median sentence of 2-4 years.
Jonathan Pollard never had a trial. He received his life sentence as the result of a plea agreement which he honored and the US Government violated. In spite of the fact that he pled guilty and cooperated fully with the prosecution, at the last minute, the sentencing judge ignored the plea deal and sentenced Pollard to life.
“Pollard’s plea agreement required him to plead guilty and to cooperate. On its side, the government made three promises of significance here. First, it would bring to the court’s attention “the nature, extent and value of [Pollard’s] cooperation and testimony” and would represent that the information supplied was of “considerable value to the Government’s damage assessment analysis, its investigation of this criminal case, and the enforcement of the espionage laws.” Second, it would not ask for a life sentence (this promise was implicit but is not contested by the government), though it would be free to recommend a “substantial period of incarceration”. Third, the government limited its reserved right of allocution to “the facts and circumstances” of Pollard’s crimes. The government complied in spirit with none of its promises; with the third, it complied in neither letter nor spirit…”
“…Pollard’s sentence should be vacated and the case remanded for resentencing.”
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
September 10, 1991, Argued March 20, 1992, Decided
Dissent by: Justice Steven Williams
Jonathan was indicted on one charge only: one count of passing classified information to an ally without intent to harm the United States. There were no additional charges against him.
Ever since Pollard was able to obtain the unclassified titles of the documents that were used as evidence against him, and these titles were published in a petition to Israel’s High Court of Justice, there can be no doubt that the information Pollard passed to Israel concerned Syrian, Iraqi, Libyan and Iranian nuclear, chemical and biological warfare capabilities – all being developed for use against Israel. The US was deliberately withholding this vital information, despite a legal commitment to share this data with its ally, Israel.
Nevertheless and notwithstanding, Jonathan broke the law and he acknowledged his guilt. On numerous occasions and in numerous forums, he has expressed remorse for his actions, regretting that he did not find a legal means to act upon his concerns for Israel. For example, a letter he wrote to then – President Clinton:
December 3, 2000
Dear Mr. President:
My attorneys Eliot Lauer and Jacques Semmelman have presented you with a request for clemency and commutation of my sentence of life in prison. I most respectfully hope that you will grant that request.
I am writing to you personally, Mr. President, to express my deep regret for what I did.
I was arrested in November 1985 and I have been incarcerated continuously since then. In 1986 I pled guilty, as part of a plea agreement, to one count of conspiracy to commit espionage. I cooperated extensively with the government for over a year in fulfillment of my part of the plea agreement, and yet on March 4, 1987, United States District Judge Aubrey Robinson sentenced me to the maximum sentence of life in prison.
My fifteen years in prison began in the Federal Medical Center (Prison) in Springfield, MO, where I spent over a year in solitary confinement, incommunicado, in a ward reserved for the criminally insane. This was followed by another five years in solitary confinement at the United States Penitentiary in Marion, IL, undoubtedly the toughest prison in the federal system. I have had a good deal of time to reflect on what I did, and what I should have done.
I fully appreciate that what I did was wrong. Grievously wrong. My intent was to help Israel, but I had no right to violate the laws of this country or the trust it had placed in me. I had no right to place myself above the law.
Over the years, I have expressed publicly and privately how deeply sorry I am for what I did. I have acknowledged without equivocation how wrong my conduct was. I have expressed this to members of Congress, local elected officials from throughout the United States, officials of foreign governments, members of the clergy of all faiths, and other prominent citizens.
I have also written letters expressing my unmitigated remorse. These letters, some of which go back many years, have been publicly disseminated. I will ask my lawyers to deliver copies to you.
I have always had, and continue to have, great love for this country. For the rest of my life, I will have to live with what I did, as well as with the pain I caused my family, the American Jewish community, and this great nation.
I know you are a man of great humanity and compassion. I ask, most respectfully Mr. President, that you accept this personal expression of profound remorse, and ask from the bottom of my heart that you grant me clemency and commute my sentence, so that together with my wife I can rebuild my life and leave a better legacy than the one I currently have.
Jonathan J. Pollard
Jonathan has been severely punished for the one count of disclosing classified information to Israel with intent that it be used to Israel’s benefit, with which he was charged.
Even a glimpse at the record shows that Pollard, who spied for an ally of the US, was sentenced far more severely than the most notorious spies for enemy states – most of whom are free today. Jonathan is the only person in the history of the US to receive a life sentence for spying for an ally. Rudolph Giuliani, former Mayor of New York City and a former federal prosecutor, has said that “given comparative sentences, [Jonathan Pollard’s] sentence – this I happen to know because I have seen the documents – is way beyond the sentences served by other people that have been convicted of the same offense.”
Pollard was never accused, indicted or convicted of treason, nor could he be. The US constitution defines treason as giving aid and comfort to an enemy during time of war. Israel is an ally. Nor was he ever accused of damage to the United States in a formal indictment – only in the media, where he could not respond to his accusers.
The only offense Pollard was ever indicted for was one count of passing classified information to an ally. Jonathan Pollard was an ideologue, not a mercenary. The FBI concluded after nine months of polygraphing that Pollard acted for ideological reasons only, not for profit. This fact was recognized by the sentencing judge who declined to fine Pollard.
Moreover, the life sentence that Jonathan Pollard is serving is unlimited. Contrary to the untruth being circulated, that Pollard will automatically go free in the year 2015; there is no end date to his sentence. His attorneys, Eliot Lauer and Jacques Semmelman have repeatedly clarified this issue in publicly available documents, in which they state that the year 2015 is simply another “presumptive parole date”, which the US government is entitled to oppose, and which we can safely assume, they will.
Nor is parole an option. Again, to quote Jonathan’s pro bono attorneys, “Mr. Pollard has not “avoided” the parole board. It is the Department of Justice that has imposed an insurmountable obstacle to Pollard’s parole application. The Department of Justice has prevented Mr. Pollard’s attorneys, Eliot Lauer and Jacques Semmelman (both of whom have the appropriate Top Secret/SCI-eligible security clearances), from seeing the very documents that were submitted to the sentencing judge prior to Mr. Pollard’s sentencing in 1987. Although Mr. Pollard’s lawyers have a clear “need to know,” the government refuses to allow them to see their client’s entire court file, which is partly under seal. Without access to that file, hostile elements in the intelligence community know that they have free reign to say absolutely anything about Mr. Pollard without any risk that they will be contradicted by the documents. Applying for parole without access to the court file and in the face of unremitting hostility by these elements in the intelligence community would be an exercise in futility.”
It is unjust that Jonathan has been punished much more severely than all others who committed similar offenses on behalf of other US allies, and indeed more harshly than most who have spied for enemies of the US. It raises concern about why a Jew who spies for Israel is treated far more harshly than those who have spied for other allies, or even enemies, of the US.
What is more, the hatred directed against Pollard personally is simply too big to be credible. The “new” charges against Pollard – that he spied for up to 10 countries, was an arms dealer and a drug user, and a hundred and one other things, are absurd. Even superman could not have served so many countries, pulled off such alleged weapons deals. How foolish are the media that repeat these lies without question! Twenty-five years into a life sentence, Jonathan Pollard continues to be publicly pilloried and excoriated at every possible opportunity by the American intelligence community and its willing henchmen in the media.
More to the point, if any of these accusations were true, why was Pollard never formally accused, indicted and tried for them?
In assessing the credibility of these allegations, it is important to know that no such allegations appear anywhere in the public record docket materials. And, since it is clear that neither the anonymous “government insiders” the author quotes nor any of his so-called “sources” would risk going to prison by disclosing privileged information which is not part of the public record, these allegations therefore have no credibility whatsoever. As has been repeatedly pointed out by Pollard attorneys Eliot Lauer and Jacques Semmelman in response to similar fraudulent allegations made in the media, if the U.S. Government believed these and the other allegations made, it would have included them in the pre-sentencing memoranda. The U.S. Government took an extremely aggressive approach toward Mr. Pollard, the attorneys explain, and would have relished the opportunity to inform the sentencing judge that Mr. Pollard had violated the law by delivering classified information to foreign countries, and with mercenary motives, to boot. That was not the case.
Former CIA Director James Woolsey, former head of the Senate Intelligence Committee US Senator (ret.) Dennis DeConcini, former American Special Envoy to the Middle East Dennis Ross, as well as a cross section of other notable Americans, and the Conference of Presidents of Major American Jewish Organizations are calling for Jonathan’s release. Enough is enough, they say.
Even former Secretary of Defense Caspar Weinberger, the man who drove Jonathan’s life sentence, admitted in an interview before he died, that the Pollard case was a “minor matter” which had been exaggerated, “made much more important than it was” in order to serve another agenda.
It is time for the Jewish community to pay heed to our Torah sages, such as HaRav Aharon Leib Steinman and HaRav Shalom Yosef Eliyashiv, in Israel, and numerous Torah sages and Jewish community leaders in the United States, who have called upon the public to assist in the mitzvah of Pidyon Shvuyim for Jonathan Pollard.
Jonathan’s own Rav, the former Chief Rabbi of Israel, HaRav Mordechai Eliyahu (who is thoroughly familiar with the facts of the case) has ruled that the Pollard case is not the simple mitzvah of Pidyon Shvuyim, but is the most exalted form of the mitzvah: “the mitzvah of Pidyon Shvuyim for one who was moser nefesh for Am Yisrael.”
The information Pollard provided to Israel 25 years ago was critical and is still protecting Israelis to this very day. It caused the Jewish State to completely revamp its civil defense program, supplying every citizen with a gas mask and chemical antidote kit, and legislating that every new home built in Israel must have a “sealed room”. Last week, thanks to Pollard, the government of Israel began a new distribution of gas masks and chemical antidotes to its citizens.
This is not to justify that Pollard broke the law. He deeply regrets breaking American law. Nevertheless, it is a fact that he did so only in order to save Israeli lives. He has paid dearly for his actions, languishing in prison for the last 25 years of his life.
Every Jew owes Jonathan our utmost involvement in seeking his freedom. He deserves our assistance, not a blood libel.
* Rabbi Pesach Lerner is executive vice president of the National Council of Young Israel