Theodore B. Olsen Esq.
The document below was written by a former Pollard attorney, Theodore Olsen, to counter a 1993 NJCRAC position paper on the Pollard case. The document is as relevant today as when it was originally written. Many of the old lies that it deals with are still being circulated today by the same Jewish sources.
April 9, 1993
RE: Jonathan J. Pollard
Dear Mr. Rubin:
As you know, we represent Jonathan J. Pollard. We have received a copy of the Jerome Chanes NJCRAC memorandum of March 23, 1993 disseminated to NJCRAC and CJF member agencies entitled "The Pollard Case: Myths and Facts." The Chanes memorandum states that it is intended to "provide accurate information" about the "substantive issues" involved in the Pollard case. However, it contains many materially inaccurate and damaging statements concerning Mr. Pollard and his case. We therefore request that you circulate this letter as soon as possible to all of the member agencies that received the Chanes memorandum
1. Pattern of Misrepresentation
The "Myths and Facts" memorandum states that there has been an "unfortunate pattern of misrepresentation" concerning the Pollard case. This regrettable and entirely gratuitous innuendo is apparently intended to accuse Mr. Pollard's supporters of misrepresentations. It is not true. Naturally, in any highly visible case such as this involving many people working to achieve a common objective, there may be misconceptions that develop. But the Pollard supporters have made every effort to supply scrupulously accurate information concerning his case. In fact, the NJCRAC memorandum contains more errors and misleading perceptions than anything we have seen. That is why it is so important for you to correct it by distributing this response.
2. Disproportionality of sentence
Mr. Pollard's sentence of life in prison is grossly disproportionate to punishments in comparable cases. Your wholly inaccurate and distorted rejection of this fact ignores both the facts and fundamental principles of our criminal justice system.
You assert that "comparisons between Pollard's sentence and sentences meted out to others . . . are inappropriate," and that such an analysis of the proportionality of Mr. Pollard's sentence is improper as a jurisprudential matter. That, of course, is nonsense It is a fundamental principle of justice and jurisprudence that the law should treat similarly situated individuals similarly and that punishments, insofar as possible, should be relatively equal and proportionate. The fact that Mr. Pollard's sentence is completely out of scale with those imposed for comparable offenses is a highly salient consideration in his efforts to seek a commutation of his sentence.
Moreover, the Supreme court of the United States has held as a matter of constitutional "principle that a criminal sentence must be proportional to the crime for which the defendant has been convicted-" Solem V. Helm, 463 U.S. 277, 290 (1983) (emphasis added) . The Court has struck down as unconstitutional punishments that are "significantly disproportionate to [the] crime," id. at 303, based on a comparison "with sentences imposed on other criminals" Id. At 292; see also Harmelin V. Michigan, 111 S. Ct. 2680, 2702-05 (1991) (Kennedy, J., concurring) (reiterating that the constitution forbids "extreme sentences that are 'grossly disproportionate' to the crime") - It is well recognized that disproportionality in sentencing when compared to others convicted of similar crimes is "fundamentally unfair," and accordingly, it "has also been a fundamental part of . . . the clemency philosophy." Kobil, The Quality of Mercy Strained: Wrestling the Pardoning Power from the King, 69 Tex. L. R. S69, 627 (1991).*
[*NOTE: For example: President Carter commuted the 20 year sentence of Watergate conspirator G. Gordon Liddy after 4 years and 3 months because Liddy had served much more time than the other Watergate participants. Id. The reason given by the White House Counsel was that "[it] was a clear case of unfair disparity." Id. (citations omitted).]
You also argue that Mr. Pollard's sentence was not disproportionate. But that is clearly incorrect. As thoroughly documented in Mr. Pollard's commutation application, his sentence was manifestly inconsistent with the punishment historically imposed for disclosing intelligence information to an ally of the United States. Indeed, the more than seven-year period that Mr. Pollard has already served is much closer to the typical sentence for comparable offenses. The only other life sentences imposed for espionage in the United States of which we are aware -- including each of the instances cited in your memorandum -- involved individuals who spied for the Soviet Union (or Eastern block countries that were under its control) during the Cold War. We believe that Mr. Pollard is the only person in the history of our Nation to receive a life sentence for giving information to an ally.
3. The Pertinence of the Fact that Mr. Pollard Spied for a Close Ally
Your memorandum asserts that it is irrelevant that Mr. Pollard provided intelligence information to Israel, one of the United States closest allies, as opposed to a country that is hostile to the United States. That assertion is legally incorrect and morally perplexing. While it may be a crime to disclose any classified information to anyone, both the law and society recognize the difference between efforts to harm the United States by giving information to its enemies and supplying data to an ally to help save the lives of victims of aggression.
You contend that "as a legal matter, the law on espionage does not distinguish between allies and enemies. . . ." But the law, including the Constitution of the United States most certainly does make such a distinction. The most serious espionage crime is treason, which, unlike Mr. Pollard's offense, is punishable by death, and is defined explicitly in the Constitution as consisting "only in levying war against [the United States), or in adhering to their Enemies [or] giving them Aid and Comfort." (emphasis added) . The statutes on espionage also recognize that providing information to an enemy is different in kind from and more reprehensible than supplying information to a country that is an ally of the United States, explicitly singling out the former for special treatment. Compare 18 U.S.C. 794(b) and 794(a); 18 U.S.C. 2382. The law distinguishes between those whose conduct occurred with reason to believe it may harm the United States. Mr. Pollard was not charged with that offense.
Moreover, the vastly harsher sentences imposed on individuals who have committed espionage against the United States an behalf of hostile nations demonstrate the obvious and fundamental principle that spying for an enemy is a far more egregious offense that deserves more severe punishment than providing intelligence data to an ally. As discussed above, life sentence have historically been reserved exclusively for individuals who have spied for countries that are hostile to the United States, while persons who, like Mr. Pollard, assisted allies have been subjected to far less severe punishments that more closely approximate the time that Mr. Pollard has already served in prison.
Your memorandum also misleadingly suggests that Mr. Pollard's reliance on the hostile nation/ally dichotomy is an attempt by him to excuse or justify his conduct. But that is not Mr. Pollard's point at all. Mr. Pollard acknowledges that he violated an important law of the United States. He pleaded guilty to that offense and agreed to cooperate fully with the government's investigation of his conduct. He has repeatedly expressed regret and remorse for his conduct and for any and all harm that his offense may have caused. Mr. Pollard is not arguing that his unlawful conduct in justified because he was motivated only by a desire to save lives.
But those who ask for an humanitarian commutation of Mr. Pollard's sentence to a severe punishment equivalent to the punishment already imposed are surely entitled to emphasize that Mr. Pollard's actions, admittedly wrong, was inspired by the desire to protect against violent aggression, to prevent a holocaust and to allow the people of Israel to defend themselves. This is a legitimate and important basis for the sentence commutation being sought from President Clinton.
4. Conditions of Incarceration
The fact that Mr. Pollard has been in solitary confinement for several years is not a "myth." And it is not a "myth" that Mr. Pollard has been incarcerated in the nation's harshest maximum security prison. Mr. Pollard did not ask to be placed in Marion prison -- where security measures are necessary to protect him from anti-Semitic prison gangs. Moreover, NJCRAC should understand that it is exceedingly difficult for Mr. Pollard to chronicle his specific, day-to-day prison experiences without exposing himself to repercussions. It should be obvious to anyone that solitary confinement in a prison containing the most violent and vicious criminals in the nation is not a circumstance that should be ignored or labeled as a "myth."
As a technical matter, Mr. Pollard was not sentenced to "life without possibility of parole," and parole may legally be considered in 1995. But your implication that the possibility of parole makes commutation unnecessary - is incorrect and misguided. The law enforcement and intelligence agency officials who will be given the opportunity to express themselves on the subject have indicated that they will oppose parole. Immediately following sentencing, the U.S. Attorney said that Mr. Pollard would "never see the light of day." Parole is a virtual impossibility under these circumstances. Your emphasis on the highly unlikely theoretical possibility of parole avoids addressing the circumstances and fairness of Mr. Pollard's incarceration. The fact is that he has been punished enough already.
6. The Government's Breach of the Plea Agreement
You agree in your memorandum that there are "legitimate questions" regarding the government's conduct at the time of sentencing in conjunction with its plea bargain. However, you selectively omit a full discussion of the issue and the pertinence of it to Mr. Pollard's request for a commutation of his sentence.
The fact is that the government violated its plea bargain with Mr. Pollard in several fundamental respects. Nearly everyone who has examined the circumstances agrees with that conclusion. Indeed, this situation was severely questioned by the federal appellate court that reviewed Mr. Pollard's sentence. Despite the government's agreement in exchange for Mr. Pollard's plea of guilty to temper its rhetoric at the tide of sentencing, not to seek a life sentence, and to point out that Pollard's cooperation with the government had been valuable, the United States Court of Appeals for the District of Columbia Circuit found that the government had engaged in "hard-nosed dealings," Pollard v. United States, 939 F.2d 10110, 1030, cert. denied, 113 S. Ct. 322 (1992), and that the government's conduct was "problematic" and "troublesome." Id. at 1026. Dissenting Judge Stephen Williams concluded that the government violated material terms of Mr. Pollard's plea agreement, resulting in a "fundamental miscarriage of justice." Id. at 1032. And the government's forceful, bitter and antagonistic rhetoric produced the very life sentence it had agreed not to seek. Although the courts declined for technical reasons to set aside Mr. Pollard's sentence, there are no such constraints on the President's constitutional power to commute Mr. Pollard's sentence and thereby to redress the injustice of a sentence of life in prison despite the government's promise not to seek such a sentence.
NJCRAC's characterization of the facts is revealing. It says that Pollard's claim of a government breach of the plea bargain is "not entirely a myth". This is a very peculiar choice of words to describe an audacious, deliberate and manifest injustice.
7. The Secretary of Defense's Submission of a Memoranda During the Sentencing Process and Use of the Word "Treason"
Your brief discussion of the memoranda submitted by Secretary of Defense Caspar Weinberger during the sentencing proceedings and your astonishing efforts to rationalize Secretary Weinberger's use of the word "treason" to describe Mr. Pollard's conduct overlooks completely the improper nature and devastating impact that that submission had on Mr. Pollard's case.
The Secretary of Defense was not "obliged to submit a pre-sentencing memorandum." No law or custom requires it. It was an entirely gratuitous and intentionally forceful symbolic act by the nation's highest national security official.
The Secretary of Defense's memoranda did not relay objective facts about possible damage to national security caused by Mr. Pollard. Rather, the Secretary went to extraordinary and unprecedented lengths to volunteer extremely prejudicial and unjustified statements unjustified statements of opinion such as Pollard's "loyalty to Israel transcended his loyalty to the United States," and "the punishment imposed should reflect the perfidy of [his] actions (and) the magnitude of the treason committed," (emphasis added).
Judge Williams found that these statements amounted to a call for a life sentence in "all but name", and constituted a
"flagrant violation of the (plea) agreement's spirit . . . . [T]he repeated use of superlatives implied an appeal for the maximum (sentence). Weinberger's reference to treason took the point further. Whereas treason carries the death penalty, and involves aiding the nation's enemies, Pollard was charged with espionage, carrying a maximum of life imprisonment and encompassing aid even to friendly nations - here, Israel . . . Weinberger's subtext was that the heaviest possible sentence was the lightest that was just."
Mr. Pollard did not commit treason, was not accused of treason and did not plead guilty to treason, and even the Government has now acknowledged that use of that terminology was both unwarranted and "regrettable". In fact, Mr. Pollard pleaded guilty to one count of violating 1a U.S.C. S 794, the transmission of national security information to a foreign government. Mr. Pollard's conviction was not even based upon that portion of # 794 that is predicated on an intent or reason to believe that harm to the United States would result from his conduct.
The Chanes memorandum's explanation that Secretary Weinberger was not using the word "treason" in its "formal and legal sense", is nothing short of outrageous. The Secretary was one of the nation's top officials, filing a formal legal document in the name of the United States under the supervision of the United States Attorney in a formal and extremely serious legal proceeding in a proceeding in a case that he, himself, characterized as very important. The word "treason" was intentionally used, as evidenced by the simultaneous use of the term "traitorously" by the Assistant United States Attorney. The assertion that the Secretary and the Government did not know the meaning of the word "treason" in that context is absurd. It was intended to secure a life sentence for Jonathan Pollard and it worked.
We will not comment an the remainder of the memorandum or the NJCRAC process. Those are matters for NJCRAC and its CJF member agencies. However, we do expect that NJCRAC will feel obliged to disseminate only accurate information concerning the Pollard case in the future.
In sum, your March 23 memorandum does not "provide accurate information" about the Pollard case. Rather, it either inaccurately portrays or omits entirely facts that we believe are vitally important and that would be of great interest to the NJCRAC and CJF member agencies. Your memorandum does not even mention that the government of Israel has specifically requested the President to grant Mr. Pollard's request for commutation. Such omissions seriously call into question the objectivity of your "fact-finding" efforts.
Very truly yours,
Theodore B. Olsen
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