Unjust sentence tests legal system

Charles Rice - The Observer - November 12, 1999

Now that the Middle East is back at the top of the news, we can expect discussion of the case of Jonathan Pollard, the Navy intelligence researcher who pleaded guilty of giving secrets to Israel and was sentenced in 1987 to life in prison. The standard view is that Pollard is a "traitor" who did great damage to the security of the United States; that he got off lightly and should have been shot; and that the proceedings against him were fair. The reality is different. While I wrote part of Pollard's brief in the Court of Appeals, I do not want to rehash the case. But let me note some strange aspects you may not hear about in the media.

Pollard and his crime are reprehensible. But never before has an American citizen received a life sentence for spying for an allied nation; the usual sentences range from two to eight years. In 1992, the Court of Appeals, by a 2-1 vote, upheld the denial of Pollard's move to withdraw his guilty plea. "[I]t cannot be said," concluded the court, "that justice completely miscarried." Judge Williams, in dissent, called the sentencing "a fundamental miscarriage of justice." We can mention here only one point.

In the plea agreement, the government made three promises to Pollard, including an implicit one not to seek a life sentence. "The government," Judge Williams said, "complied in spirit with none of its promises; with the third, it complied in neither letter nor spirit." In the agreement, the only reference to statements the government might make to the sentencing judge in camera, i.e., off the record, was that "representations concerning [Pollard's] cooperation [with the government after his arrest] may have to be made to the Court in camera." Instead, the Government submitted in camera a 46-page classified memo by Defense Secretary Caspar Weinberger which focused not on Pollard's "cooperation" but on the claim that Pollard did great damage to the United States. Weinberger, who was indicted for perjury on Iran-Contra and pardoned by President Bush, claimed in September1999 that the sentencing judge himself made a "formal official request" that Weinberger submit that secret memo.

Pollard's attorneys were not told that the judge requested that memo. They received only a censored version of it although both of his attorneys had full security clearances. Defense attorneys have no absolute right to see such sentencing materials. But the only reference in the plea agreement to in-camera submission was to information favorable to Pollard with respect to his cooperation.

Would Pollard have signed the plea agreement if the government had said that it would present to the court in camera, not information on Pollard's "cooperation," but allegations about the damage Pollard did to national security, allegations which Pollard would have no real chance to rebut because he would not be allowed to see them in full? Pollard is an unworthy character who betrayed his country's trust. But if they can blind-side a Pollard, they can do it to any of us.

Weinberger also submitted an unclassified statement which said it was difficult to "conceive of greater harm to national security" than that done by Pollard and that his punishment "should reflect the magnitude of the treason committed, and the needs of national security."

While Weinberger's statement, said Judge Williams, "did not expressly endorse a life sentence [it] implied an appeal for the maximum. Weinberger's reference to treason took the point further. Whereas treason carries the death penalty and involves aiding the nation's enemies, Pollard was charged with espionage, carrying a maximum of life imprisonment and encompassing aid even to friendly nations."

The emphasis in the case through the signing of the plea agreement corresponded to the indictment's explicit charge only that the information Pollard conveyed "would be used to the advantage of Israel." Once the agreement was signed, the government shifted its emphasis from Israeli benefit to damage to the United States. It was a bait and switch. It was not illegal. But it is cause for concern because government officials have waged a media campaign to keep Pollard in prison on that basis, that his spying did great damage to the United States, an offense for which he was not explicitly indicted and against which he now has no real chance to defend himself.

A Washington Post editorial last January asked, "Cannot a way be found to pierce some of the secrecy and provide the public with a better means of judging whether fairness was achieved in this case? [Pollard] is in the position of having his fate determined in part by materials to which he had no access and proceedings of which he was not a part."

The test of a legal system is not how it treats the best among us, but how it deals with the worst. Pollard's punishment is beyond the usual. He is kept in prison through leaked and unrebuttable media assertions that go beyond the charge on which he was explicitly indicted. This is a case of permanent imprisonment for undisclosed reasons of state security. The 20th century has seen too many examples of that practice. It should not be imported into the law of the United States.

Professor Rice is on the law school faculty. His column appears every other Friday.