Except for a marginal few, almost all of us in the Jewish community who have urged the release of Jonathan Pollard have also recognized that he committed a serious crime and deserved harsh punishment. Indeed, as Jews, we are particularly sensitive to anything adversely affecting the national security of the country that has been so hospitable to us and made for the safety of Jews around the world. Glitches along the way — and there have been — should never be permitted to detract from the basic reality that the United States has been extraordinarily good to the Jews. What is deeply troubling, however, and what we have said on several occasions, is that Pollard seems to have been singled out for especially harsh treatment because he is a Jew who took it upon himself to spy for the Jewish State. And that seems to have brought about a mindset that resulted in a Draconian life sentence being imposed in the first place and the continuation of a blatantly unfair refusal to rectify the prior injustice. An editorial the other day in The New York Times epitomizes the attitude that so troubles us.
In "For Restraint on Pardons," the Times took President Clinton to task for his pardoning Dan Rostenkowski, a former congressional leader who pleaded guilty to mail fraud charges in 1996, characterizing it as "a misuse of the presidential pardoning power in order to pay back a loyal political lieutenant." The Times also went on to lecture the President on other cases he is considering.
The Times observes that
The president's power to pardon anyone charged with crimes against the United States is absolute. But Mr. Clinton ought to avoid any more reckless eleventh-hour subversions of the rule of law. While Michael Milken, Jonathan Pollard and some of the figures involved in the Whitewater scandals are reported to be under consideration, none of them deserve a presidential pardon.
Although presidents routinely grant pardons to reverse what they consider flawed outcomes in the judicial process, most celebrated pardons serve a broader political and societal interest. But a pardon for Susan McDougal, Webster Hubbell or others involved in the Whitewater scandal would be a self-indulgent gesture on Mr. Clinton's part and would serve no higher purpose.
For years, the White House has been caught in a political cross-fire in the case of Jonathan Pollard, the naval intelligence analyst convicted of betraying classified material to Israel. The Israeli government has been among those advocating for clemency, making the case all the more delicate. But we share the Central Intelligence Agency's concern that pardoning Mr. Pollard would signal undue leniency on national security.
Note the ever so careful ground shifting from the President's absolute power to pardon to "reckless ... subversions of the rule of law" and lumping Pollard together with those about whose convictions, contrary to the case with Pollard, no one claims any injustice or unfairness. The Times then moves from the notion of presidents routinely using the pardon power "to reverse what they consider flawed outcomes in the judicial process" to that of "celebrated" pardons serving some "broader" or "higher" purpose.
The stage became set for considering Pollard not as someone whose life sentence should be considered in terms of possibly representing a "flawed outcome," but in terms of what it would signal about our nation's policy on national security.
As if underscoring its journalistic gymnastic, the Times then goes on to say the following about another case:
Mr. Clinton has said that he is considering clemency in the case of Leonard Peltier, the prominent Native American activist convicted of killing two F.B.I. agents in 1975. A politically motivated pardon would be inappropriate. Neither the passage of time nor a political agenda can be invoked to minimize the cold-blooded killing of federal agents. But troubling questions have been raised about the fairness of Mr. Peltier's trial and whether he actually did the shooting or simply abetted it. The case warrants vigorous review by the Justice Department to determine whether presidential action is needed.
So, for Mr. Peltier, the Times introduces the plight of the American Indian as a possible political dimension to the murders but then immediately, with cloying righteousness, dismisses it as a reason for a pardon and casually reverts back to the "flawed outcome" standard.
Finally, the Times gets to the Milken case and brings everything together. Milken, of course, was the so-called "junk bond" king who pleaded guilty in 1990 to securities fraud. Here, in part, is what the Times had to say about his case:
Many mistakenly believe that crimes that subvert the integrity of financial markets are not all that serious. That is the unfortunate message the White House would be sending if it pardoned Mr. Milken. He suffered no injustice needing reversal.
Presumably, for the Times, even if a pardon for Milken would send the wrong signal, one should be forthcoming if "he suffered [an] injustice needing reversal." Yet for Pollard only the wrong signal issue counts. And this framework offered by the Times approximates the way most official Washington has approached the Pollard matter.
In recent years, the pages of The Jewish Press have countless times been the vehicle for presenting, in great detail, the glaring injustice Jonathan Pollard has suffered at the hands of our justice system. And no purpose would be served to go through that sad tale again. We only express the hope that in his final days in the White House, the President should do the right thing. As a former Attorney General, he is well aware that fundamental rules of fairness were not followed by the Justice Department and were not redressed by the courts. He can either issue a pardon or instruct Attorney General Reno not to oppose a new effort by Pollard's lawyers to secure judicial review of his case. It is not generally known, but it was the refusal of the Justice Department to accept the late filing of an appeal that thwarted appellate review of his life sentence years ago.
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