Olson Blasts Aspin Letter Leaked To Sabotage Commutation
(Letter to President's Legal Counsel - January 4, 1994)
GIBSON DUNN & CRUTCHER
1050 Connecticut Ave. NW
Washington DC 20036-5306
Bernard W. Nussbaum, Esq.
Counsel to the President
Executive Office of the President
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500
Re: Jonathan J. Pollard
Dear Mr. Nussbaum:
As you know, this firm represents Jonathan J. Pollard. I am writing in response to the December 28, 1993 report in The New York Times describing a December 23, 1993 Secretary of Defense Les Aspin arguing against commutation of Mr. Pollard's life sentence to the eight years that he has served in prison.
According to the Times report, Secretary Aspin's letter was supplied to the Times "by a Pentagon official opposed to Mr. Pollard's early release." The next day, The Washington Post reported that "[o]pponents of leniency in the Defense Department . . . willingly shared Aspin's letter" with
the Post. We have also been informed that virtually every other major news organization has been furnished a copy of the Aspin letter by Pentagon sources. Indeed, portions of the letter were shown on a network television news program last week.
While the Defense Department has "willingly shared" Secretary Aspin's letter with the press in order to influence public opinion and restrict President Clinton's decisionmaking, it has resolutely refused Mr. Pollard access to the letter. Despite my repeated oral and written requests
to the Department of Defense for a copy of Secretary Aspin's letter, and for the materials upon which the allegations in the letter are based, the Department of Defense has refused to release a copy to us. (Copies of my December 28 and December 29 letters to the Defense Department Legal Counsel are attached.) I cannot imagine that the President would approve this conduct, with its obvious unfairness to Mr. Pollard and its blatant effort outside of channels to narrow the President's constitutional choices.
The leaked attack on Mr. Pollard by Secretary Aspin violates Mr. Pollard's fundamental constitutional rights and continues a disturbing pattern that has characterized the Department of Defense's conduct from the beginning of the Pollard case. As you surely know, Mr. Pollard's prosecutors and Defense Secretary Caspar Weinberger breached Mr. Pollard's plea agreement by submitting a statement by Secretary Weinberger on the eve of sentencing asserting that Mr. Pollard had committed treason and demanding a sentence "commensurate" with the crime of treason. Secretary Weinberger's claim was completely false, as Mr. Pollard had neither committed nor was charged with treason. But the Secretary's false charge, later acknowledged by the United States Attorney's Office to be "regrettable," accompanied by other extravagant and hyperbolic
claims by the government, succeeded in obtaining a life sentence for Mr. Pollard despite the government's promise not to seek that sentence.
The Department of Defense and its incumbent Secretary Are now attempting to subvert Mr. Pollard's commutation application by leaking untrue charges to which Mr. Pollard has been given no opportunity to respond. It is disturbing that officials of this nation would engage in such
underhanded and shameless conduct. Surely, Mr. Pollard has the right to be informed of and to be given an opportunity to respond to these latest charges. Surely he has the right, in the words of the Sixth Amendment, "to be informed of the nature and cause of the accusation [against him] . . . [and the] assistance of counsel for his defense."
Although the Department of Defense has withheld these rights from Mr. Pollard, Mr. Pollard is entitled to them and President Clinton should be entitled to review that response before he makes his decision on Mr. Pollard's request for commutation of his sentence. We ask that you take the
steps necessary to ensure that a full and meaningful opportunity to respond is provided.
Even without the details of Mr. Aspin's leaked accusations, it is possible to point out fundamental flaws in Secretary Aspin's letter. First, Secretary Aspin is said to argue that commuting Mr. Pollard's sentence might undermine the President's "ability to control and manage national security concerns," based on the theory that [I]f each holder of classified information may release it to a government the holder considers friendly your control is lessened." This argument is disingenuous at best. Neither Mr. Pollard nor anyone else supporting commutation contends that persons who
possess classified information should be allowed to release such information to friendly nations. Mr. Pollard has acknowledged that his conduct was wrong and that it was a crime that deserved punishment. He pleaded guilty to violating the law. He has been in prison for eight years, most of it in solitary confinement in the Federal Penitentiary in Marion, Illinois, the nation's harshest.
Secretary Aspin's letter overlooks the point that Mr. Pollard is the only person in the history of the United States to receive a sentence of life in prison for providing intelligence data to an ally. He has already served longer in prison than those convicted of comparable offenses. No one
would be tempted by the punishment Mr. Pollard has already received to engage in espionage.
Secretary Aspin's letter makes the related point that "[w]ith the rapid changes in the world, a nation considered friendly today may have divergent interests tomorrow." Secretary Aspin's letter seems to imply, but surely cannot have intended to suggest, that Israel might someday become a hostile nation. As you know, the law deals differently with those who intended to harm the United States or had a reasonable basis to believe that their conduct would do so. Mr. Pollard was not charged with such conduct. He was attempting to save Israeli lives by revealing information about terrible weapons being assembled for use against Israel. His course was wrong, but he should not have been punished as severely as those who engaged in war against the United States.
Second, Secretary Aspin's letter reportedly argues that Mr. Pollard should be kept in prison for life because his conduct caused serious damage to national security. That argument ignores the fact that the government was fully aware of the scope of Mr. Pollard's disclosures when it agreed not to seek a life sentence and decided not to charge Pollard with having "intent or reason to believe" that his actions would harm the United States. The Secretary's argument in late 1993
for the same life sentence that the government did not think was necessary and promised not to seek years ago at sentencing is wholly unjustified and exceedingly unfair.
Third, the only new argument to be advanced in Secretary Aspin's letter asserts that commutation for Mr. Pollard should be rejected because Mr. Pollard "has continued to release classified information" in letters sent from prison and, therefore, remains a security risk. This charge is empty rhetoric and cannot withstand honest analysis:
In summary, nothing in Secretary Aspin's letter provides a basis for refusing commutation of Jonathan Pollard's life sentence. The Secretary's letter was a blatant and inexcusable effort to injure Jonathan Pollard and to interfere with the President's constitutional prerogatives. And the Department of Defense's refusal to permit Jonathan Pollard to confront his accusers and to defend himself against these unwarranted and overblown charges is a tactic that is unworthy of this government and President Clinton's Administration.
- Secretary Aspin alleges that "[s]ince July 1989, [Mr. Pollard] has included classified information in 14 letters most recently in 1992." While the Department of Defense refuses to discuss those letters or to allow Mr. Pollard to respond to those specific charges, Mr. Pollard
has never been subjected to disciplinary proceedings for the contents of his letters. As required by his plea agreement, Mr. Pollard submits all his correspondence to Naval Intelligence. He has never been disciplined for any attempt to communicate classified information. If his letters had constituted a serious violation of the rules, he would have been subjected to discipline. He would not have learned of this assertion from The New York Times after his commutation petition had been pending for a year.
- It would be impossible for Mr. Pollard to transmit classified information in letters from prison,
because of the monitoring and censorship by Naval Intelligence. The Government has had complete power to decide what he may say in his letters. It would be foolish and pointless for Mr. Pollard to attempt to communicate unauthorized information. He cannot have "release[d]
classified information" because his censors had the absolute power to prevent that from happening.
- Six months ago, long after the last alleged letter containing classified information, the government transferred Mr. Pollard from solitary confinement in the most secure unit in the maximum security prison in Marion, Illinois, to a medium security prison in Butner, North Carolina, where he is permitted to mix freely with other prisoners and is permitted to make telephone calls to and receive unmonitored visits from a wide range of persons who do not have security clearances. If the United States Government believed that Mr. Pollard's knowledge, memory or ability to disclose eight-year old classified information continued to pose a genuine threat to national security, it would never have transferred Mr. Pollard to this new prison or given him this degree of autonomy.
- We have been informed that 13 of the 14 letters referred to Mr. Aspin are 13 copies of the same letter that was written in 1989 and sent to numerous individuals. As to that letter, the Office of Naval Intelligence has stated that the information "was declassified as a result of the Gulf War" or otherwise "declassified because [the information] no longer possess[es] the potential to damage national security." Thus, whatever Mr. Pollard may have written in 1989 about Iraqi chemical weapons and Scud missiles was made public by this nation as a result of the Gulf War some time ago. Thus, as to that letter, Mr. Aspin's charge is manifestly spurious. We believe the fourteenth letter falls into the same category.
- Naval Intelligence has asserted that Mr. Pollard has sent over 3,000 letters from prison. All were sent through channels. If only 14 of those 3,000 plus letters made minor inadvertent references to now declassified information, that is no evidence that Mr. Pollard is a security risk. If anything, it proves the contrary. And there is no evidence that Mr. Pollard intended to break-
- Mr. Aspin's letter implied that if Mr. Pollard's sentence were commuted, he would move to Israel. Mr. Pollard has made no such plans, and, as you know, the President may attach any conditions he wishes to a commutation. This is another red herring by Secretary Aspin.
Very truly yours,
Theodore B. Olson
our file number T 72548 -00001
- For context and background related to this letter see news item by Barton Gellman - Washington Post - Dec. 29, 1993: Aspin's Allegation About Pollard Affects Clemency Campaign
- Just as the Department of Defense ignored repeated requests for the Aspin letter and related documents, the White House did not respond to the above letter regarding the D.o.D's misconduct.