Taking Exception: Clemency for Pollard
The Washington Post - December 20, 1993 - Theodore B. Olson
The Dec. 13 op-ed piece ('Pollard Deserves to Be in Prison') by David
Geneson, a prosecutor in the Jonathan Pollard case, is drenched with the
same kind of inaccuracy and hysterical exaggeration that Geneson and his
government colleagues employed so effectively during Jonathan Pollard's
The government's emotional and hyperbolic arguments succeeded in
securing the harshest possible punishment of Jonathan Pollard - life
imprisonment - even though the government had promised it would not seek
such a sentence. Geneson professes not to object to a presidential
commutation of Pollard's sentence to the eight years he has already
served. Yet, he unleashes the same vituperation to oppose commutation
of the sentence that he used to obtain it in the first place. However,
that poison should not discourage President Clinton from responding
favorably to the commutation plea by Pollard, Israel's Prime Minister
Yitzhak Rabin and so many others.
Geneson's most audacious and demonstrably false claim is his assertion
that the government did not promise Pollard it would 'restrain its
prosecutorial rhetoric in connection with his sentencing.' Geneson
acknowledges the commitment 'not to recommend the maximum penalty of
life imprisonment.' The government however, promised much more than
that, and Geneson knows it, for his handwritten signature appears on the
government's written plea bargain with Pollard.
It explicitly promised to confine the government's sentencing
argumentation to the 'facts and circumstances' of the offense committed
- a significant limitation on the general right of prosecutors to
venture opinions and engage in bombastic rhetoric during sentencing, it
also promised to inform the sentencing judge that Pollard's cooperation
with investigating agencies had been 'of considerable value to the
enforcement of the espionage laws.' Those two additional promises were
central to the plea agreement.
As Geneson knows, the government breached all three of its promises,
savagely attacking Pollard's motives and personality. It argued that
his cooperation was so deficient and improperly motivated that it should
be a factor for enhancing his sentence. It accused him of 'treason,' an
offense he never committed. It did everything it could to secure a life
sentence despite its promise.
All three federal judges who considered Pollard's appeal, including
Supreme Court Justice Ruth Bader Ginsburg and two prominent and highly
respected conservative jurists, criticized the prosecutors' conduct as
'hard-nosed,' 'troublesome' and 'problematic.' Judge Stephen Williams
found that the government's sentencing 'tirade' clearly exceeded the
'substantial restraint' on the government's conduct contemplated by the
plea bargain, constituted a 'fundamental miscarriage of justice' and
said he would have vacated Pollard's sentence if he could.
Public pronouncements by a former prosecutor beyond the official public
record are, to say the least, highly questionable. Geneson is trying to
persuade the public that Pollard should remain in prison for life based
on his own revisionist, self-justifying interpretations of
still-classified government damage assessments. But the fundamental
point that he chooses to ignore is that the prosecutor was fully aware
of the scope of Pollard's disclosures to Israel when he agreed not to
seek a life sentence and decided not to charge Pollard with 'knowing or
having reason to believe' that his actions would harm the United
States. Thus, Geneson's exhortation years later for the same life
sentence that he did not think was necessary and promised not to seek at
sentencing is, on its face, deceptive.
Geneson also defames Pollard by saying that he was motivated by money.
The record is clear that Pollard believed it was necessary to help
Israel defend itself from hostile aggressors because the United States
was withholding information it owed to Israel under a treaty. Months
after he had volunteered his services and begun cooperating with Israel,
Israeli intelligence officials persuaded him to accept relatively paltry
sums of money,[For clarification of this issue see the Facts Page - point 6
and addendum.] a technique routinely utilized by intelligence professionals to corrupt, and
therefore to enslave, an idealistic volunteer. Pollard was surely wrong
to accept the money, but that was not the motive for his actions.
Jonathan Pollard knows he broke the law and had to be punished. Life
imprisonment, however, is a grossly disproportionate sentence for
Pollard's offense. Geneson simply has no answer for the fact that
Pollard is the only person in United States history to receive such
severe punishment for providing intelligence data to an ally. Aside
from Pollard, those who received a life sentence committed espionage for
a hostile nation; those who assisted allies received sentences
comparable to the period Pollard has already served.
Commutation of Jonathan Pollard's sentence would heal a deep wound in
the U.S.-Israel relationship and allow both countries to look to the
future in this promising season of peace.
The writer is the attorney for Jonathan Pollard.