Free Jonathan Pollard

January 12, 1999 - The Jerusalem Post

The American intelligence community vociferously opposes any sort of clemency for Jonathan Pollard - the review submitted yesterday to President Bill Clinton was not necessary to discover that. As each day, week, and year passes, his continued incarceration stretches further beyond that of any other American convicted of the same crime. Though Clinton's decision is reportedly imminent, justice demands that it not be made under the pressure of a Senate trial.

With the prospect of clemency in the air, a new slew of allegations regarding the seriousness of Pollard's crimes has emerged from intelligence officials. Last month, four former chiefs of naval intelligence wrote in The Washington Post that Pollard's release would be "totally irresponsible from a national security standpoint." All this agitation, in turn, has inspired Senate Intelligence Committee chairman Richard Shelby to urge his colleagues to write to Clinton in opposition to a Pollard clemency.

The issue here, however, is not whether Pollard's crime was serious - it was. Nor is it in question that he should be punished - he has been. The issue is: After 13 years in maximum security prisons, including seven in solitary confinement, further incarceration of Jonathan Pollard would be a miscarriage of justice.

As a January 2 Washington Post op-ed by Alan Dershowitz, Irwin Cotler, Kenneth Lasson (all law professors) and Angelo Codevilla (professor and former Senate Intelligence Committee staffer) points out, Pollard was neither charged nor convicted of the crime of treason. "Nor was there anything in his indictment to suggest that he intended to harm America - or that he compromised the nation's intelligence-gathering capabilities or caused injury to any of its agents," the op-ed continued.

As unseemly as it may be, allies spy on each other all the time. When they are caught, the rules of the game dictate that the matter be settled quietly, usually by expulsion. In no case has the punishment for spying for an ally carried anywhere near as harsh a sentence as the one Pollard is serving.

Pollard was charged with one count of passing classified information to an ally, and sentenced to life in prison without parole. The current maximum sentence for this offense is 10 years, and the median sentence is about three years. Pollard, by contrast, is arguably being treated more harshly than Aldridge Ames, who was held responsible for the deaths of 10 American agents, convicted of treason - and sentenced to life in prison. Ames did not serve for years in solitary confinement, nor was he confined in as harsh a prison environment as Pollard's.

Pollard's life sentence, besides being considerably disproportionate to other sentences for similar crimes, was in gross violation of his plea agreement with the government. Under that agreement, according to which Pollard pled guilty and cooperated with the prosecution, the government pledged not to call for a life sentence. Though two judges on a three-judge panel upheld Pollard's sentence by ruling against his appeal on technical grounds, the third judge found that the government's breach of its plea agreement was "a complete and gross miscarriage of justice."

It is clear that Pollard violated his oaths to secrecy and unjustifiably took the law into his own hands. However, he did so not to harm the United States, but to provide Israel with intelligence that he believed the US should have been sharing with its close ally. In doing so, Pollard harmed that alliance, as did those Israelis who acted recklessly in cooperating with him.

Those who assume that such issues are decided politically, rather than on the merits, assume that Clinton will not want to provide an electoral boost to Binyamin Netanyahu, nor anger senators in whose hands his fate rests. But Pollard's cause is not a partisan issue in Israel, as a rare joint letter signed by Netanyahu and

Ehud Barak

illustrates. The letter, initiated by Immigration Minister Yuli Edelstein, states, "Concerning Mr. Pollard, the people of Israel and virtually all its political parties stand as one." Political considerations will never lead to releasing a convicted spy, certainly not one so vilified by the US intelligence community. Nor, in fact, should this matter be decided politically in either direction.

The reason to release Pollard is not to please Israel or American Jews, but to do justice. As Dershowitz et al wrote, "Just as the law should not be bent to release Pollard, neither should it be bent to keep him behind bars." No clemency decision is an easy one, but when a man's freedom is at stake, he deserves that the decision be made with the necessary deliberation, and without regard to bureaucratic biases or extraneous political interests.