Jews, Pollard and Dual Loyalty Myths
William Katzenberg - Broward Jewish Journal (Miami) - April 8, 1992
It was a mere squib of an item in the Miami Herald of March 21 and its understated headline read: "Appeals Court upholds spy's plea, sentence." You had to look for it on page 16A.
It was an A.P. item, dateline Washington, D.C..."By a vote of 2 to 1, the Federal appeals court for the District of Columbia Circuit rejected Jonathan Pollard's claim that the government violated the plea bargain on how hard a sentence to seek. Rejecting were Judge Laurence Silberman and Judge Ruth Ginzberg. Dissenting in part, was Judge Stephen Williams, who argued that the sentence should be overturned."
That was it, in substance. Finis.
What leaped off the page were the names Silberman and Ginzburg, voting to reject another Jew's plea. It was a mirror, an echo of other alleged conflicts; a past that still haunts us, gets in the way. Why?
Surely, it is patently unfair to reprove two Jewish justices on the matter of law and briefs submitted to which I have neither knowledge nor competence. They were performing their sworn duty and how dare I or any of you out there suggest otherwise?
However, a lifetime of Jewish history invokes memories of the late Judge Irving Kaufman and the Rosenbergs and conflicts of conscience. Here, too, there was little concrete proof of judicial impropriety, only whispered snippets and anecdotal allegations. Hearsay.
Yet all of the above are part of the fabric, the unspoken myth of Jewish dual loyalty when impassioned conflicts arise. Are they valid? Are Jewish judges subject to greater pressure when a fellow Jew is in the docket? Do they lean over backwards at "the expense" of the accused to prove their untainted loyalty? Does any of the above enter the private alcoves of judicial deliberation?
The temptation by many of us may be to leap to judgment even if proof-positive is not at hand. Lurking in the background is the latent belief that a Jewish accused would be more fairly served by a non-Jewish judge not encumbered by overriding doubts of dual loyalty. If this is so, would you seriously advocate that Jewish judges withdraw from cases of Jewish accuseds? Of course not! That would be a damning, unjustified conclusion.
Meanwhile, the victim Jonathan Pollard sits in solitary, subject to especially cruel and unusual punishment for the confessed crime of espionage. Nobody that I know, responsibly suggest that Pollard is not guilty; only that the book was thrown at him with a vengeance not visited upon others (the Walkers, et. al.) also convicted of espionage.
I've now read through the 75 pages of the Appeal proceedings even if I bring little scholarship to the ordeal. It is noteworthy that the opening date of this awaited "appeal" was September 10, 1991, the second day of Rosh Hashanah. The date didn't trouble Pollard's non-Jewish attorney, Theodore Olson. But how, one wonders, did it sit with two of the presiding Appeals justices, Ruth Ginzburg and Laurence Silberman? Are we prejudging the judges?
You will, of course, draw your own conclusions. However, it should be noted that Appeals matters are calendared months in advance and re-scheduling is tantamount to long postponement.
That pre-judgment is also visited upon the prevailing silence of mainstream Jewish organizations. Has the mindset of the Jewish organizational structure been too timid, too silent while Pollard sits in solitary, now for years, a victim of a plea bargain agreement interpreted "in the extreme" by Judge Aubrey Robinson?
Is the Jewish organizational "silence" a matter of sober judgment or is it more a built-in need for respectability uber alles? It is tempting for our non-lawyerly minds to apply the latter critique even if we've never heard of Rule 11 of the Criminal Procedure which governs the taking of a guilty plea. The right to withdraw/change a plea long "after" sentencing, (I'm told by legal mavens) is rarely sustained.
What then are the remedies Jews should be seeking vis a vis Jonathan Pollard? Surely, further solitary confinement is excessive vengeance upon an accused who spared the U.S. government the cost and disclosure of a public trial. Pleading his guilt via a plea-bargain-agreement (one clouded with thorny questions) should earn him some consideration.
Meanwhile, many are asking: "Will the case get to the Supreme Court?" Keep tuned in.
The anguish Jonathan Pollard has suffered is beyond ordinary comprehension. Shamelessly shunned by Israel in whose behalf he risked so much; divorced from his wife, Anne Henderson Pollard, the man must feel like Job.
The shining light in his struggle, singularly must be the loyal, intense seekers of justice for Pollard, working against untold odds, committed to his defense, indefatigable. I wish them well in an uphill struggle that continues. Sadly, it is not the only struggle that cries out for Jewish attention. Who, pray tell, defines our priorities?
William Katzenberg, a weekly contributor to the Jewish Journal, is a board member of the Jewish Federation of Greater Fort Lauderdale.