Hillary and Pollard

Rabbi Dov Fischer - Jewish World Review - December 1, 1999

An increasing number of Americans are asking why has there been no action by the Clintons on the long, disturbing, and increasingly painful case of Jonathan Pollard, a Jewish man who is not a terrorist and never was accused of treason, but who has been incarcerated for life under the harshest of conditions in an American prison?

After all, it was only a short time ago that President Clinton released certified terrorists. The President's often expressed sense of justice and fairness should impel him to bring closure to this case, which stands as a shocking anomaly in the annals of our judicial system.

His wife, Hillary, who recently announced Jewish family ties and who, as an American, surely must wonder about the deeply troubling disproportion and cruelty of Mr. Pollard's sentence, and should be taking particular interest in seeing that in this case justice is done.

Jonathan Pollard's release should be based neither on ethnicity, political considerations, nor on the fact that he tried to help Israel, a country that President Clinton calls a close ally of the United States. Mr. Pollard deserves to be judged according to the same standards set for others who have done the same as he: no more leniently, but no more harshly or cruelly.

No other individual who passed classified information to a friendly nation ever has received a comparable sentence; the median term served for spying for a friendly nation has been two to four years. Yet Jonathan Pollard already has served 14 years - six of them in solitary confinement - under some of the harshest conditions ever concocted in the U.S. prison system. Even spies convicted for treason - traitors - who spied for enemy nations have not been punished so harshly. Why, then, Mr. Pollard?

What Jonathan Pollard did was an infraction of the law. He is not without guilt; but he is not a traitor. He was not charged with treason, and he was not tried for treason. His intent and motivation were to help a beleaguered friend and fellow democracy, Israel, America's only reliable ally in the Middle East. Mr. Pollard never was charged with intent to harm the United States. Whereas the FALN felons have never renounced their actions, nor have they renounced the use of deadly force, Jonathan Pollard has expressed his contrition countless times, and wishes only to live out the rest of his life in peace. In view of the President's announced view that the FALN terrorists have paid enough debt to our society for their violence and terrorism against our people, the Pollard question burns ever more urgently. The Pollard case presents many disturbing features:

  • The government's blatant violations of the promises it made to Mr. Pollard in its plea agreement.

  • The government's use of secret evidence, which Mr. Pollard and his lawyers never have been permitted to challenge or refute.

  • The government's incarceration of Mr. Pollard in a prison for the criminally insane - a punishment we have not seen outside the former Soviet bloc - to coerce him to implicate others.

  • The government's use of uncorroborated "leaks" from the National Security establishment, to mislead the American people about Mr. Pollard's actions, Israel's handling of the information he provided to Israel and the loyalty of the American Jewish community.

  • The government's refusal even to investigate the sources of these leaks which, in themselves, have compromised our national security.

  • The government's refusal to share with Mr. Pollard's attorneys the late Secretary of Defense Les Aspin's "secret" letter to President Clinton, which it was nevertheless willing to share with the media.

  • The government's refusal to honor promises to release Mr. Pollard, which it made with both Mr. Rabin and Mr. Netanyahu within the context of the Middle East process.

  • The government's double standard of justice which allowed a confessed Saudi spy - LCDR Michael Schwartz - to escape all punishment and to escape justice merely with a less-than-honorable discharge from the Navy.


Today, a startling development should make the Jewish community focus even more closely on the Pollard case. In the September 1999 issue of the Middle East Quarterly, former Secretary of Defense Caspar Weinberger dropped the bombshell that a key memo regarding Jonathan Pollard which he wrote to Judge Aubrey Robinson - the judge who presided over the Pollard case - was in fact written at the request of Judge Robinson. Judge Robinson, according to Weinberger, "made a formal, official request to me to supply" information about damage that may have been caused by Mr. Pollard's actions.

The Weinberger memo violated Jonathan Pollard's constitutional right to due process because that memo has remained classified and unavailable to the Pollard defense team. According to Harvard Law Professor Alan Dershowitz, judges now routinely "put everything on the record. It is improper to secretly solicit information and then, on the record, to imply that (U.S. Attorney Joseph) DiGenova introduced it."

Mr. Dershowitz continues: "Anything the judge asks for has to be put on the record. For the judge to solicit a substantive memorandum and then to use it in this way raises fundamental questions."

These are the fundamental questions the Jewish community must not allow to remain unanswered:

  • The government has used Caspar Weinberger who reportedly lied in a sworn deposition to the court, advancing the mischaracterization of Mr. Pollard as a "traitor", a crime for which Mr. Pollard was neither indicted nor convicted.

  • According to Weinberger, Judge Robinson secretly solicited from him a memo and then failed to give Mr. Pollard the opportunity to view and challenge the document in court.

  • The secrecy and inaccessibility of the Weinberger memorandum is a violation of Jonathan Pollard's constitutional right to due process, a right that must be granted to every American citizen.

  • Caspar Weinberger himself was the beneficiary of a Presidential pardon for alleged violation of national security laws.
An investigation into the Pollard case is necessary, and the President must act now to commute Jonathan Pollard's sentence.

This Administration has been indifferent to the broad-based call for Mr. Pollard's release, which has been endorsed by numerous non-Jewish leaders of note, as well as by the European Parliament, five Prime Ministers of Israel and over 1,000 American rabbis, representing an unprecedented interdenominational demonstration of solidarity; and most recently by the New York City Council, and by Mayor Rudy Giuliani.

Moreover, this case is a litmus test of Hillary Clinton's own stand, as she tests the waters of her own political aspirations, on the issues of judicial equity, fair play and due process. We can only hope that she shares the commitment of concerned Americans to these principles and that her resolve will be borne out by a clear and forthright call now for Jonathan Pollard's immediate release. Mrs. Clinton should add her voice promptly to those of so many political, civic, religious, and human rights leaders, as well as concerned citizens who are calling on the President to recognize the glaring injustice of the sentence imposed on Mr. Pollard.

In light of President Clinton's deeply troubling decision to release the convicted FALN terrorists, he should, without delay, make a decision that truly would serve justice: Jonathan Pollard must be granted freedom now.

Rabbi Dov Fischer, a member of the Board of Directors of the Jewish Community Relations Committee of Los Angeles Federation Council, and Los Angeles Director of the Institute for Public Affairs for the Union of Orthodox Congregations, practices complex civil litigation at the law firm Akin, Gump, Strauss, Hauer and Feld. He is also on the National Executive Board of the Zionist Organization of America.

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