Why do they have nothing to say about other spies who committed far more serious crimes, and received much more lenient treatment?
To: President William J. Clinton
March 9, 1999
The White House
Washington, D.C. 20050
Dear Mr. President:
For some time I have been disturbed by this question: Why have the same advocates of life imprisonment for Jonathan Pollard - all of those who have recently stated that clemency on his behalf would create a terrible precedent - been so utterly mute about the leniency shown to similar or worse offenders?
While Pollard remains the first and only person ever to be so severely punished for the offense with which he was charged - the average time served for the same crime is four years - recent cases stand out in strikingly unequal (but virtually unknown) contrast. A few of the more notable examples:
Albert Sombolay, convicted of passing classified data to Iraq during the Gulf War, was sentenced to 35 years in prison. (His term has since been reduced to 19 years, with further reductions anticipated as a result of continuing appeals.) Unlike Pollard, Sombolay committed a clear act of treason - aiding the enemy during war time.
Michael Schwartz, a navy Commander caught selling secrets to Saudi Arabia from 1992 to 1994, received an "other-than-honorable" discharge from the military. No fine. No prison - and no comment from the intelligence community.
Steven Lalas, an employee of the U.S. embassy in Athens, was convicted of disclosing classified military documents to Greece which identified CIA agents operating in the Balkans. Lalas entered into a plea agreement -the terms of which he subsequently violated - and was sentenced to only 14 years.
Peter Lee, convicted in 1998 of having passed highly classified nuclear information to China, was fined $20,000.00 No prison time. He was sentenced to 12 months in a halfway house.
David Boone, a U.S. Army code-breaker who plead guilty to selling the Soviets highly sensitive documents (including codes manuals and data about U.S. nuclear targets) for $60,000 in the late 1980's and early 90's - and for whose crimes Jonathan Pollard is being still being scapegoated in the media by U.S. officials - was sentenced just last month to 24 years.
There are many others.
Yet such leniency exercised toward other spies convicted of the same or worse offenses does not seemed to have upset George Tenet, the current CIA director who threatened to resign if you acquiesce to Israel's strong requests for clemency for Pollard. [In 1948, a similar threat to resign by then-Secretary of State Marshall, if then-President Harry Truman recognized the State of Israel, did not deter the President.]
Similarly unmentioned have been the mirror image cases that make Pollard's plight seem all the more sadly ironic: in the past ten years Israel has caught at least two Americans and one Israeli military officer spying in Israel for the U.S. The Americans were quietly sent home, and the Israeli quietly pardoned. (Neither, of course has the Intelligence Community made any reference to the lengths to which the United States goes in order to retrieve our own agents who have been caught committing espionage abroad, such as when we traded the notorious Soviet spy Rudolph Abel for captured U-2 pilot Gary Francis Powers.)
There is ample evidence, however that Pollard is being punished for a crime he did not commit - treason- and is being disproportionately punished for the one he did commit (a single count of passing classified information to Israel). In fact, Pollard was never charged with "betrayal of worldwide intelligence data" nor of compromising "sources and methods". But he did pass on satellite pictures and reports that showed U.S. built and approved missile and chemical factories in Iraq.
Could it be that American foreign policy architects are as embarrassed today as they were angered back then that their support of Saddam Hussein was disclosed to Israel? Could that be why so many government officials want to keep Pollard in prison? Otherwise, one might reasonably ask, why would they be so singularly opposed to presidential clemency?
With the possible exception of the Republicans' efforts to impeach and convict you, Congress has rarely, if ever in its history come out so forcefully in condemnation of high crimes and misdemeanors as it has in Pollard's case. For example, Rep. Porter Goss (R-Fla), a former CIA agent who is chairman of the House Select Committee on Intelligence authored an unprecedented House resolution urging that Pollard never be freed. "He is one of the worst traitors in our nation's history. There is absolutely no reason to let this guy out of jail. None."
The resolution, however was not based on insider information - but incredibly on factually unreliable articles in the press! "Whereas press accounts have indicated that Jonathan Jay Pollard offered to provide classified information to countries in addition to Israel..." "Whereas press accounts have indicated that the Secretary of State, the Director of Central Intelligence, and the Secretary of Defense oppose leniency..." "Whereas four former directors of Naval intelligence have issued a statement [ in the Washington Post]..." etc. The Resolution ends with a reiteration of the totally unsubstantiated polemic that Pollard is still dangerous.
Meanwhile no fewer than 60 Senators have joined the chorus calling for Pollard's continued life imprisonment. In a recent letter to you, they wrote about " the enormity of Pollard's offenses, his lack of remorse... and the continuing threat to national security he poses." It went on to say that a "commutation of Pollard's sentence would imply a condonation of spying against the United States by an ally."
Whence comes the Senators' information? There is no proof that Pollard's offenses were "enormous". He has expressed remorse many times and in numerous ways over the last 14 years. We spy on allies at least as much as they spy on us.
What could Secretary of State Madeleine Albright have been thinking when she said that keeping Pollard in prison would not make much of a difference to Israel? Fervent appeals for clemency have come from the past 4 Israeli Prime Ministers, the past 3 Israeli Presidents, and the entire Israeli Knesset.
Pollard's life sentence - by far the harshest ever meted out for a similar offense - continues to make "equal justice under law" seem like little more than a palsied proverb. Even if we were to assume that the government did not breach the plea agreement; and that the still-secret but clearly prejudicial memorandum submitted to the sentencing judge by then-Secretary of Defense Caspar Weinberger was properly admitted (moments before sentencing); and even if we were to assume that the length of sentences is irrelevant; and even if we believe that Pollard is a knave and a scoundrel - the fact still remains that none of the latter-day allegations against him have ever been uttered in a court of law where they could be challenged by the defendant.
Even if Pollard were not Jewish and his espionage were not on behalf of our staunchest democratic ally in the Middle East, the failure of due process in this case - what Judge Stephen Williams of the D.C. Circuit Court of Appeals called, "a complete and fundamental miscarriage of justice" - remains an egregious affront to our long-held sense of equality and fair-play under the law.
On the other hand, showing clemency for Pollard now would be entirely consonant with traditional American values of fairness, compassion, and comity.
It would be the principled, the moral, the right thing to do.
Professor of Law