The Pollard Case and American Justice
The Globe and Mail (Toronto) - January 19, 1999 - Irwin Cotler
US Secretary of State Madeleine Albright has advised President Bill
Clinton that there are no "compelling foreign policy considerations"
that would justify clemency for Jonathan Pollard, the former US Navy
analyst convicted in 1985 of spying for Israel.
But there are two
important principles of justice that should guide Mr. Clinton's
commitment, given last fall to Israeli Prime Minister Benjamin Netanyahu
to "seriously review" the case of Jonathan Pollard. First, that
Jonathan Pollard committed a serious offense for which he deserved to be
punished, and for which he has expressed remorse; and second, that
Pollard is being punished for a crime he did not commit, and is being
disproportionately punished for the one he did commit.
Mr. Pollard was charged with , and convicted, of one count only: of
conveying classified defense information to a foreign government, in
this instance Israel. He was never charged, nor convicted, of the crime
of treason; nor was there anything in the indictment to suggest that he
intended any harm to the US, or sought to benefit anyone other than
Yet "prosecutorial" sources in the CIA, and the Defense, State and
Justice departments over the years have continued to maintain that
Pollard was charged with, and convicted of, treason, while inspired
media leaks - often coincident with presidential reviews - have
sustained and amplified this false and misleading allegation.
Regrettably, however, Clinton has invited submissions from these
agencies only - the "prosecutorial" group - while excluding any parallel
or prospective defense or exculpatory submissions on behalf of Pollard.
It is as though an impeachment trial in the US Senate - let alone the
court of public opinion - were to hear only the prosecutor's report from
Kenneth Starr, and no representations or defense on behalf of the
president. Such a process would be neither serious nor fair.
What's more, over the years this "prosecutorial" group has obscured, if
not covered up, its own denials of Pollard's right to due process. These
* the government breached its plea-bargaining agreement with Pollard,
thereby denying him a fair trial and proportionate punishment. For
instance, it said it would not ask for a life sentence but effectively
did so by falsely characterizing his act as treason.
* part of the misleading ex-parte submission by former secretary of
defense Caspar Weinberger at sentencing, which falsely accused Pollard
of "treason," was kept secret, thereby denying Pollard the right to a
* These agencies have demanded that Pollard never be released - by
presidential clemency or otherwise - thereby ignoring the fact that
Pollard has now entered his fourteenth year of imprisonment for an
offense whose median sentence is from two to four years, - a clear
denial of Pollard's right to equality before the law;
* The CIA has accused him over the years of having compromised
intelligence "sources" and "methods" in Eastern Europe - a charge that
was never part of Pollard's indictment and for which no evidence had
ever been adduced - but whose continued recycling falsely implicates
Pollard in the deaths of at least a dozen US informants in the former
This last accusation is particularly noteworthy because it is a case
study of both CIA misrepresentation and cover-up. For while the CIA was
accusing Pollard of this most egregious of charges, it knew - as it
later became publicly known - that Aldrich Ames, the head of the CIA's
Soviet/Eastern Europe Division, had himself been both the architect of
those treasonable acts, and the original source of the disinformation
against Pollard on those charges.
If Mr. Clinton's review is to be serious, it must be fair; and if it is
to be fair, Pollard should, at the very least, be granted the right to a
full answer and reply - the right to confront his accusers - the right
to rebut adverse evidence and to adduce his own evidence and argument.
The president is the best witness of the dangers of an ex-parte review,
based only on "prosecutorial" allegations that may be false, incomplete
American justice - not just Jonathan Pollard - is on trial.
Irwin Cotler is professor of law ar McGill University and an
international human rights lawyer. He has served as legal counsel to
political prisoners in the former Soviet Union (Andrei Sakharov), Latin
America (Jacabo Timmerman), Indonesia (Muchtar Pakpahan) and Nigeria
(Wole Soyinka) and as Canadian counsel to South Africa's Nelson Mandela.