Misusing Classification in Pollard Case

October 13, 1994 - Alan M. Dershowitz - The Bulletin: Op-Ed

Jonathan Pollard, the American who pleaded guilty to spying for Israel, has now served time in prison longer than any American in history convicted of spying for an ally. Indeed, he has served longer than most Americans convicted of spying for enemies.

This is especially surprising in light of the plea bargain that the government struck with Pollard. In exchange for pleading guilty and cooperating with the government, Pollard was promised that the government would not seek life imprisonment. But the judge nonetheless imposed a life sentence and the very prosecutors who made the promise continue to break it by insisting that the president not reduce the life sentence. Under current guidelines, Pollard may not be eligible for parole until 2015.

In light of all this, it is surprising that President Clinton not consider some form of reduction which would bring Pollard's sentence more in line with those who have pleaded guilty for spying for allies and more in line with the government's promise.

In a calculated effort to keep Pollard in prison, Pentagon officials made public a letter from outgoing Secretary of Defense Les Aspin to President Clinton alleging that Jonathan Pollard had slipped classified information into 14 letters he sent from prison. The implication is that this information might endanger U.S. security.

If there was any truth to this tall tale, it would show unparalleled stupidity on the part of the American intelligence officials. All of Pollard's letters are monitored by intelligence officials. If they had spotted any dangerous classified material in the first letter, they clearly would have stopped it - as they had the right to do - from being sent. To wait until all 14 letters had been sent, would - if true - have constituted government complicity in the publication of dangerous classified information. Indeed, Pollard had the right to rely on the fact that he was advised that his letters were being passed through the national security censorship.

As one of Pollard's legal advisers, I have read many of his letters in which he defends himself against charges that he seriously endangered our national security. If any of his letters inadvertently included information which was technically classified, then it was information that had either already been made public or was of no real importance. The best proof of this is that Joseph deGenova, prosecutor in the Pollard case, has publicly called for all the classified information in that case to be made public.

Indeed, some of the classified information was already leaked to Time Magazine by government sources in an effort to deny Pollard's request for commutation. I have written to Attorney General Reno asking her to open an investigation of this leak.

Several years ago the government claimed that 13 of Pollard's letters contained classified information. On Nov. 23, 1992, the Director of Naval Intelligence confirmed that the material in those letters had been declassified "because they no longer possess the potential to damage our national security."

What we are seeing here is yet another abuse of the classification system by the Pentagon to serve political rather than national security interests. The entire classification system wreaks of arbitrariness. Insiders leak classified information with impunity.

I was told by a former intelligence official that he had been shown classified information in the Pollard case in order to give him ammunition to oppose Pollard's release. The government continues to play fast and loose with the facts regarding Pollard's case.

In another leak, intelligence officials assert that information provided by Pollard to Israel may have inadvertently found its way to the Soviet Union. Yet Prosecutor deGenova asserted during a public debate that he had no information to confirm that speculation.

In a democracy it is unfair for the government to argue against the rights of a citizen by relying on classified information without giving that citizen the right to defend against its charges. Accordingly, the only appropriate course for the government to follow now is that suggested by prosecutor deGenova: all the material on which the government is relying in its efforts to keep Pollard in jail should now be declassified so that the public can determine for itself the actual extent of damage done by Mr. Pollard.

I am convinced that a full, fair and open review of the facts will lead to the conclusion that the information provided by Pollard to Israel was largely tactical and regional rather than global and strategic. It related primarily to Iraq's plans for chemical and gas warfare to Syrian-inspired terrorism directed against civilians.

Jonathan Pollard has more than paid his debt to society for engaging nature in an act of civil disobedience calculated to save innocent lives.

Alan Dershowitz is Felix Frankfurter Professor of Law, Harvard Law School.