Why Clinton Should Pardon Pollard - Now

October 27, 1998 - Kenneth Lasson - Baltimore Jewish Times

As the bright rays of an early morning sun filtered through the mists of dawn at the Wye River Plantation on Maryland's Eastern Shore, the latest Middle East peace accord appeared to be a done deal. Israel would promise more land and prisoners; the PLO would renounce its charter and agree to track down terrorists; and, in return for a major interim agreement and a monumental photo opportunity, the United States would give both parties money, monitoring -- and convicted spy Jonathan Pollard.

Why would the Palestinians want Pollard? Why, indeed, was it they and not the Israelis who broached the subject in mid-week (not at the last minute, as many newspapers reported)? Because according to highly-placed Israeli and Palestinian sources -- Yasser Arafat saw then that the only way Israel would relent on its demand for extradition of Ghazi Jabali, Gaza's most-wanted chief of police, would be if it could get Pollard instead, to blunt right-wing criticism back home. Thus did the Palestinians suggest the three-way barter, to which both Bibi Netanyahu and Bill Clinton verbally agreed.

Enter, in force, the CIA. In a matter of hours the agency, which had become a key player in the American promise to supervise security agreements, almost scuttled the Wye accord by putting the kibosh on the Pollard promise. Why it did so will be a burning question over the next few weeks, as will why the President -- who is (or should be) the agency's commander-in-chief, possesses the absolute power to pardon, and by all accounts sincerely desires to broker a genuine peace -- caved in.

By the end of the day, so had Israel.

The CIA had forced, and Israel had allowed, Mr. Clinton to announce only that he would once again review Mr. Pollard's case but that he'd made no commitments as to the outcome.

Here is why the President should pardon Pollard now:

He'd be correcting a clear and longstanding miscarriage of justice.

Pollard, a former intelligence analyst with the Navy, took it upon himself to give Israel strategic information which he thought was being wrongfully withheld by the CIA. He was arrested in 1985, and rightly accused of a single count of passing classified information to an ally. He was never charged with treason (a constitutional crime punishable by death), nor was any evidence ever presented that he harmed American security by compromising sources or methods. He never had a trial.

Instead, in return for a guilty plea and his cooperation, government prosecutors agreed to seek mitigation of his punishment -- then baldly breached their promise. They stood by as Caspar Weinberger, then Secretary of Defense, falsely claimed that Pollard had been charged with treason and submitted a secret memorandum to the judge calling for the maximum penalty. After the judge ignored the plea agreement and sentenced Pollard to life in prison, the prosecutors recommended against parole. A federal appellate judge later called the entire episode "a complete and gross miscarriage of justice."

Traditional American values of fairness and compassion demand Pollard's immediate release.

He has now served more than three times the average sentence for those convicted of the same criminal offense whose penalty has since been capped at twelve years and all his appeals for clemency have been vigorously opposed by the government. Meanwhile, however, there are many cases on record of greater crimes receiving lesser punishment. Perhaps most notable among them is that of former Navy commander Michael Schwartz, who was caught selling American secrets to Saudi Arabia over a two-year period, but was quietly discharged from the military without ever serving a day in prison.

Pardoning Pollard would be a genuine gesture of goodwill toward the Middle East peace process, entirely in keeping with American foreign policy initiatives.

The United States has consistently urged both the Palestinians and the Israelis to make concessions for peace. One in particular is that Israel release large numbers of named prisoners, including those convicted of murder. Here, both parties have asked Mr. Clinton to respond with a lone conciliatory action of his own. This is not a new request, suddenly sprung on an unsuspecting mediator. Israel's Knesset has made similar overtures in the past; so have the last four Prime Ministers of America's staunchest ally in the Middle East. That Pollard's name resurfaced at the Wye Plantation should not have been viewed as a last-minute surprise, but should have been anticipated -- and this time honored.

Whatever the motivations of the CIA to characterize Pollard as a bete noir, they are arrogantly undeclared, thoroughly anachronistic, and irresponsibly vindictive. If the agency cannot be relied upon to deal honestly with accurate disclosures about one aging prisoner, how can it be entrusted to play a pivotal part in the security of an entire nation?

President Clinton is still leader of the free world, and of the American people -- including its intelligence community. Besides being wise and forthright in the execution of foreign policy, he should be compassionate and humanitarian. He should pardon Jonathan Pollard now, not only as a gesture of good faith and conciliation toward the Palestinians and Israelis, but because it is the fair and moral and principled thing to do.

Kenneth Lasson is a law professor at the University of Baltimore.