Damage to the United States - Legal Text
January 16, 2000
Justice4JP Prefacing Note:
This is Part One of a series of selected legal texts excerpted from the Pollard Memoranda in Aid of Sentencing.
The following legal document, written in 1987, was part of a court submission in aid of sentencing. The document makes a compelling case about the Government's failure to produce a single shred of evidence of any damage done to the United States as a result of the activities of Jonathan Pollard.
The government based its damage claims on potential worst-case scenarios that might occur at some future date, and not on any hard evidence. In the 13 years that have since elapsed, none of these worst-case scenarios ever occurred, and the government has yet to demonstrate a single example of any harm done to US national security.
The author of this document, Richard Hibey, was Jonathan Pollard's first attorney. He is the only attorney who was permitted to see the full classified record of the Pollard case - some of it only briefly. After Hibey, the US Government never again allowed access to the classified record of the case - even to Pollard's attorneys who held all of the necessary security clearances. Consequently, Jonathan Pollard has never been permitted to challenge these documents in a court of law - a gross violation of his constitutional right to due process.
The full text of "Damage to the United States" [US Govt. redacted] follows:
Damage to the United States
Excerpted from: Criminal No. 86-0207 [Redacted]
Jonathan J. Pollard 2nd Memorandum In Aid of Sentencing
Submitted February 27, 1987
A. Introduction
Perhaps the critical issue in the court's determination of an appropriate sentence for Mr. Pollard is the extent to which his conduct damaged the interests of the United States. In recognition of the importance of the damage issue, the United States has not only devoted a section of its public sentencing memorandum to a discussion of the alleged damage caused by him, but it also has filed a supplement to the memorandum elaborating on its contentions and has submitted an affidavit by the Secretary of Defense purportedly detailing the damage assessment.While it is proper, indeed, obligatory, that he United States set forth its views regarding damage inflicted by Mr. Pollard's conduct, Mr. Pollard expected that the opinions expressed would be succinct , objective and relevant. Instead the United States has filed a blizzard of contentions notable for the emphasis on the phrases "may have," "could have," and "possibly has."
The damage assessment [1] in this case fails to establish the facts of injury in such a way as to justify the substantial incarceration for Mr. Pollard. As presented, it is an overstated polemic of the evidence one expects to find in a case of espionage. Instead of concentrating on the actual damage to US national interests, the United States has engaged in unbridled speculation on the potential damage. While this speculation would be germane if Mr. Pollard had only been apprehended yesterday, over 15 months have elapsed since his arrest.. During that time, the United States has debriefed him extensively, conducted exhaustive reviews of the documents delivered by him to the Israelis, and had the opportunity to observe any material alteration in the relationships between it and the Government of Israel, allied nations and friendly Arab nations. The United States should have developed a concrete assessment of the damage by now, thereby obviating the need for any speculation. The United States' reliance on speculation therefore underscores the tenuousness of its claims. [Justice4JP Note: how much more so is this the case now that 15 years - not just 15 months - have elapsed !]
B. There Was No Disclosure to the Enemy
In the first place, no injury is demonstrated in the same way as in the case of unauthorized disclosures to a hostile nation. This point comes home only when a comparison is made between which the Government asserted to be the injury to our national security in such celebrated cases as Walker, Pelton, and Morison. In each of these prosecutions, the injury to the United States was painfully clear: the Soviets received the classified materials.[2] The result was that sources of information were compromised, secret methods of collection were exposed, and locations of equipment and personnel revealed. Since the US intelligence effort is directed primarily at the Soviet Union, these repercussions meant basically that the States had to start over to reestablish a collection network. Accordingly, the United States was required to establish communication links, methods and channels, to replace lost equipment and personnel, to find new intercept sites, and to develop new technology to circumvent Soviet defenses or interference.
The Government has argued that the sheer volume* of information provided has made this one of the worst espionage cases in US history . *[Justice4JP Note: See Facts Page - points #20 and #21.] Again, this pandering fails to recognize the most salient of all facts in the case: the enemy was not the recipient of the information. Volume per se is irrelevant if it is not reflective of injury. As an example, in US v. Morison, United States District Court for the District of Maryland, the defendant was convicted and sentenced to 3 years in jail for having supplied Jane's Defense Weekly with a satellite photograph of a Soviet ship under construction. Mr. Pollard participated in the damage assessment for the Morison case.... [Section redacted by US Govt. for security reasons]... Thus the volume of the compromised information meant nothing; it was the Soviet's possession of it that created the injury to our national security.
In this case, no such allegation of such damage is made or proof offered. Secretary Weinberger nowhere alleges that , the United States has lost the lives or the utility of any agents, that it has been obligated to replace or relocate intelligence equipment, that it has had to alter communications signals, or that it has lost other sources of information, or that our technology has been compromised. Indeed, the memorandum only discusses the possibility that sources may be compromised in the future, thus requiring countermeasures. The absence of any countermeasures taken in the aftermath of Mr. Pollard's conduct therefore is perhaps the truest barometer of the actual damage, or absence thereof, to the national security. Consequently, the methodology of this damage assessment is seriously flawed for lack of a "clincher". The focus is not in the compromise of the substantive information but rather on the intangible, unproven speculation that we shall be unable to negotiate effectively with the Government of Israel over intelligence-sharing for some time. One may assume that if there were evidence of this, it would be presented in these papers. Certainly, after the passage of 18 months since the Israelis began receiving information from Mr. Pollard, such a development would have surfaced by now - if it in fact has happened; it has not.
C. The Political Impact
The speculation, in the absence of hard evidence, extends to the Secretary's concern about our allies. Again there is no showing of any adverse fallout with our allies from these disclosures. Again, with so many months having passed since the case broke, it is reasonable to expect some evidence of this adversity and not someone's theoretical notion that it could happen.
Even the political assessment is questionable. Is the Israel - Tunis raid different from the US raid on Tripoli? It is not fair or accurate to distinguish the two on the basis of our friendship with Tunis versus our enmity with Libya. Each was a violation of sovereign territory. Each was carried out for the same purpose: to retaliate against terrorists in their known locations. Each was praised by our President as responsible reactions to terrorism. After 15 months, since Mr. Pollard's arrest, our relations with each of those countries has not changed. Therefore the Secretary's policy analysis is less an analysis and more a convenient theory of injury which bears no relation to reality.
D. Israel's Intent in Receiving Classified Information
By the same token, fears about what Israel might do with this Information by sharing it with third countries, are completely unfounded, unless of course the Secretary is willing to state that information that Israel has lawfully received is also subject to improper sharing. If that is the case, the danger here is not peculiar to the compromised information; it extends to all of it - compromised and uncompromised alike.
The heinousness of any espionage must take into account the intent of the recipient of the classified information to harm the United States. There is no evidence in the damage assessment of Israel's intent to injure the United States by reason of its having illegally received classified information from Mr. Pollard. Israel is simply not the enemy - it is not the Soviet Union - it is not a Warsaw Pact nation - it is not China - it is not even India. Israel, as has been pointed out, enjoys a "special relationship" with the United States. It is our staunch steadfast ally. The worst that has been said about our loss in this case is that our negotiating posture in near-term intelligence exchanges might be jeopardized (although after 15 months no evidence of this appears).
There is more psychology at work here than there is injury. Notoriety is the direct result of the much-debated, discussed and analyzed phenomenon of how loyal Jewish-Americans can serve the ideal of supporting the Jewish State without doing violence to their allegiance to the United States. Mr. Pollard failed to maintain that intellectual and spiritual balance that Jewish-American strive to maintain between their love for Israel and their loyalty to the United States. For his actions as a result thereof, he must be accountable to our laws.
E. Relationship Between the United States and Israel
Just as a man who strikes another suffers varying degrees of punishment depending on whether the victim lives or dies, so should Mr. Pollard be sentenced on the basis of the damage he caused to the security of the United States. It is clear that punishment must be imposed in the form of incarceration but that does not mean it should be done without regard to the actual harm suffered by the United States. Accordingly, the one point he asks the court not to lose sight of is that the country to which he passed the information was not the Soviet Union. Instead, the recipient of the information is probably one of the closest, if not the closest ally, of the United States. Since Israel's formal establishment in 1948, the United States has provided substantial assistance to it, in the form of military hardware, financial aid, and intelligence information. Even though the United States has never committed formally to defending Israel from aggression, a cornerstone of US foreign policy for almost forty years has been a self-imposed duty to ensure the survival of the nation. To that end, Israel remains the largest recipient of US military equipment and financial aid, even though it is a diminutive country both in size and population.
The relationship between the United States and Israel is not exclusively that of donor-donee. The United States' commitment to the survival of Israel is not entirely a product of altruism. The United States does have a natural sympathy towards Israel because it is the only stable democracy in the Middle East, and because it is surrounded by hostile enemies with larger populations and resources, whom it nevertheless defeated in three wars. However, Israel has also undertaken operations from which the United States has derived substantial benefit. In past years, Israel has frustrated numerous terrorist activities against US targets and provided information to be used in US intelligence activities or actions against terrorism.
.... [Section redacted by US Govt. for security reasons]...
Israel has also acted on the United States' behalf when direct US involvement would be politically impossible or detrimental to U.S. foreign policy. For instance, when the United States normalized relations with the People's Republic of China in 1978, the PRC insisted that the US diminish its arms sales to Taiwan. The United States ended direct sales to Taiwan, but Israel, with the encouragement of the United States, became the new supplier of US arms. More recently the media has been detailing Israel's covert role as a broker of US arms sales to Iran.
Given this extensive and intimate relationship between Israel and the United States, it should not be surprising that the Israeli and US Governments have entered into formal agreements for the exchange of intelligence information. Secretary Weinberger's affidavit admits that pursuant to these agreements a large quantity of intelligence information, much of it highly classified, is disclosed as a matter of policy to the Israelis. Secretary Weinberger insists however, that the information passed by Mr. Pollard to the Israelis exceeds the scope of the exchange agreements.
F. Criteria for Dissemination of Information to Israel
An inspection of the criteria the Secretary listed in gauging what information could be disseminated to the Israelis shows that, contrary to Secretary Weinberger's claims, the information Mr. Pollard passed to the Israelis does not undisputedly fall outside those criteria. Secretary Weinberger identifies six criteria used in making the determination whether to share the information.
...[A section approximately 4 pages double-spaced has been redacted at this point by the US Govt. The blanked out section begins on page 10 of the original document and the text is resumed midway into page 14. While the text it refers to has been blanked out, footnote number three [3] on page 11 was left in tact. It is included in the footnotes following this article. The text resumes on page 14 as follows]...
Secretary Weinberger repeatedly contends that the information given to the Israelis by Mr. Pollard has damaged US interests in the Middle East. While Mr. Pollard and his counsel lack access to information necessary to refute all of Secretary Weinberger's assertions, some of the assertions are contrary even to established viewpoints in the intelligence community. For instance, Secretary Weinberger insists that a stronger Israel upsets the balance of power in the Middle East and therefore makes armed conflict more likely. I the United States truly believed that, it would not provide Israel with the most sophisticated military equipment and generous foreign aid. Instead, one of the bulwarks of US policy in the Middle East is to ensure that Israel maintains a clear military superiority in the region. As stated in a classified report titled, "The Arab-Israel Military Balance," prepared by the US intelligence community, "the United States sells some of its best and most advanced equipment to Israel on a timely basis, occasionally even before some US forces receive it." Id.at 9. The unqualified support which the United States displays for Israel reflects in part a realization that Israel would not initiate a war simply because it thinks it has a military advantage over its enemies. To the contrary, with the knowledge of military superiority, Israel would not experience the insecurity which fuels war in the Middle East.
...[Another paragraph is redacted and blanked out of the document by the US Govt. here]...
Secretary Weinberger attempts to refute his own employees' analysis of the above-described political reality in the Middle East by pointing to the Tunis raid *[Justice4JP: the reference is to Israel's raid on PLO headquarters in Tunis] as an example of Israeli aggressiveness prompted by a clear military advantage over its enemies. Secretary Weinberger misses one key distinction. The raid on Tunisia was not directed at Tunisia, but was a surgical strike aimed at a terrorist organization. While relations with Tunisia may have been ruffled over the attack (though there was no rupture of ties), it is interesting that President Reagan, architect of US foreign policy, stated immediately after the raid that other nations have the right to strike at terrorists 'if they can pick out the people responsible." World News Digest, October 4, 1985.[4] In addition the strike was not a product of new-found intelligence data supplied by Mr. Pollard, but rather reflected an application of Israel's consistent policy of retaliating for terrorist actions against its nationals. Accordingly, the information which Mr. Pollard supplied undoubtedly furthered the attack, but did not induce it. Indeed, the information most likely minimized the loss of Israeli and Tunisian lives, which would be in the best interests of US policy, by permitting a more accurate attack against PLO headquarters.
G. Damage to Relations with Friendly Arab Countries
Secretary Weinberger's second contention is that US relations with friendly Arab countries have been damaged....[Another paragraph is redacted and blanked out of the document by the US Govt. here]...
The Israelis assuredly realize that disclosure of the extent of the information received from Mr. Pollard will jeopardize the advantage which the information gives them over their present or potential enemies, since it would spur the enemies to take effective countermeasures.
...[Another paragraph is redacted and blanked out of the document by the US Govt.here]...
A related concern of Secretary Weinberger's is that information acquired by Israel through Mr. Pollard's activities could be used against Arab countries in a manner which would damage US foreign policy. Secretary Weinberger again points to the raid against the PLO headquarters in Tunis as evidence of the uses to which the Israelis would put the information and the ensuing damage to US policy. Specifically, Secretary Weinberger contends that US relations with Tunisia have been injured because of the raid. Secretary Weinberger does not indicate, however, whether the damage, if any, which occurred to the bilateral relations was a result of the attack itself or of the United States' failure to condemn it immediately. Again assuming that the raid would have taken place regardless of Mr. Pollard's passing of information to the Israelis, Mr. Pollard may have minimized the damage to US -Tunisia relations by reducing the number of Tunisian fatalities.
Over eighteen months have elapsed since Mr. Pollard began providing information on Arab countries to the Israelis. During that time, Israel has not attacked one Arab country. Israel has had a long-standing policy which predates Mr. Pollard's involvement with them, of targeting terrorist bases located in Lebanon. If the information given by Mr. Pollard had altered the military balance, as Secretary Weinberger contends, Israel would have begun hostilities against Syria, in light of that country's provocative behavior in Lebanon.
Footnotes:
[1] The Weinberger affidavit must be recognized as not having been written by the Secretary of Defense. In the true spirit of overkill that characterized the Government's assessment damage in this case, the attempt to make more out of what is the real injury to the national security is demonstrated by this technique of having the Secretary sign the affidavit rather than the true author(s). In a pending espionage prosecution in the Eastern District of Virginia, in which the undersigned is also counsel, the damage assessments in that case were not signed by the Secretary of Defense. The point is noted here because this Court should not be bulldozed into not considering a challenge to the document just because it was signed by a cabinet minister...
[2] There is nothing in the damage assessment that speaks of damage to our national security in terms of our position vis-a-vis the Soviets. The first occasion where such a claim arises is in the Government's opposition to Mr. Pollard's recently denied Motion for Production of Evidence Favorable to the Accused. Since the allegation was made, and because of its incendiary nature, it is important to focus on it in order to point our that there is simply no basis in the evidence for it.
The only reference in the damage assessment to the Soviet issue regards the danger of a Soviet mole in Israeli intelligence. That issue is treated intra. Unless the Government is sandbagging everyone by bringing in such proof in "rebuttal," the record as it stands merely speculates, without any proof, that somehow our national security vis-a-vis Russia potentially has been damaged. To state this without more, is overkill and exploitive of the situation in which the Government holds every advantage and the defendant has no opportunity for rebuttal.
[3] Secretary Weinberger also laments the possibility that Mr. Pollard could have been a victim of a "false flag operation". A "false flag" is a situation where the offender is duped into believing that he is giving information to a perfectly benevolent recipient when in fact the ultimate recipient is the enemy. It is true that a "false flag" can operate in every espionage; however, it should also be factored into the question of punishment that there was no "false flag" here. Again we reiterate that the court should assess the actual damage, not what it could have done. All the indicia of the "flag" pointed squarely to Israel and nothing in Mr. Pollard's experience belied that. Thus, Mr. Pollard knew then-Colonel now-General Avi Sella to be an Israeli military hero who led the bombing raid on the Iraqi nuclear reactor site in 1981. While residing in New York, Sella's wife was nationally active in the Anti-Defamation League. In addition, Sella provided Mr. Pollard the entree to Yossi Yagur and Erit Erb, who became his first long-term handlers. More significantly, he met at length with Rafael Eitan, the ultimate controller of the operation, the man who "captured" Adolph Eichmann. Throughout the course of his operation, Mr. Pollard questioned these individuals at length to satisfy his curiosity, and to establish their bona fides. Even the best-trained agents could not have known the details or the events on which these individuals were quizzed. The specter of a "false flag" was, in reality, therefore, non-existent.
[4] When questioned by reporters on how the Israelis were certain that they were striking at PLO members rather than Tunisian civilians, President Reagan replied, "I have always had great faith in their intelligence." Id.
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