The Spy in The Iron Mask: Should Pollard be Pardoned?

Edward Jay Epstein - January 2001

Jonathan Pollard, the former U.S. naval intelligence analyst, has been in prison now for fifteen years. For almost half this time, he has been sealed away in solitary confinement in a dungeon 3 stories below ground level.

His guilt is not in doubt. He acted as an agent for the Israeli intelligence service while serving as a civilian analyst in a U.S. counter-terrorist unit in the early nineteen-eighties. He checked 7 brief-cases of documents out of a a Pentagon library, brought them to a safe house to be photographed by his Israeli case officers and then returned them. It was classic espionage. Foregoing a trial, he agreed to plead guilty of passing classified information to Israel. In return, the government entered into a plea agreement under which it promised not to seek life imprisonment and Pollard would cooperate in identifying the documents he had delivered to Israel. Even though the Justice Department stipulated that he had cooperated (which was verified by the library records), the Judge sentenced Pollard to life imprisonment. The reason the judge decided to disregarded the plea bargain deal was that Reagan's secretary of defense Caspar Weinberger, submitted a secret memorandum to the court which neither Pollard or his lawyers ever saw. The plea bargain had left Pollard without the right to know what secret accusation had been leveled against it, or answer it. The appellate court upheld the star-chamber-like conviction by a 2 to 1 decision (with the dissenting judge concluding that the government's breach of the plea agreement was "a complete and gross miscarriage of justice.") So, without a trial where he could at least confront his accusers, intervention, Pollard was locked away in a basement cell, becoming America's man in the iron mask.

That he committed espionage does not explain this draconian treatment. Espionage, after all, does not occur in a vacuum. It is, by its very nature, a conspiracy involving both a principal, who receives the secret data, and an agent, who is in a position to intercept it. The principal, in this case, was an American ally, the government of Israel. Acting through a Washington-based unit of its service, it provided Pollard with a shopping list of documents--many of the kind which, up until the flow was cut off, it had previously received from its liaison with the CIA; it provided Pollard with case officers to photocopy them so they could be returned; and it payed him. If there was great damage done to US security, it was because of the way the principal made use (or misuse) of the secret information it had acquired. Even though the FBI quickly established the identity of the Israeli case officers, no legal action was taken against them. Nor was any action taken against the government of Israel. Such actions against an ally were apparently considered impolitic by the Reagan administration. Instead, after getting Pollard to admit his role through an unkept deal, it sealed him away in solitary.

When it comes the Game of Nations. As secret-stealing is sometimes called, it is not easy to claim the moral high ground. During this period, the US also conducted espionage operation against a number of allies, including Israel. The CIA was, for example, systematically spying on Israel in the late nineteen-seventies. It was summarized in a 47-page CIA report on Israeli intelligence, entitled "Israel: Foreign Intelligence and Security Services." It was classified "SECRET," "NOFORN", which meant it was not releasable to foreign nationals, "NOCONTRACT", which meant it was not releasable to contract employees or consultants, and "ORCON", which meant that it could not be shown to anyone else unless its originator, the CIA`s counterintelligence staff, okayed it. One reason for this high level of classification is the CIA had obtained much of the information, as the document itself discloses, from " covert assets of the Central Intelligence Agency" (p.46). "Covert assets" is CIA speak for spies. Specifically, it had acquired secret data on the sources and methods of Israel's two intelligence services including its primary targets, "false-flag" recruitments, surreptitious entry into embassies and the identity of top personnel. Such information could only have been provided by "covert assets" in the Israeli government who had access to the sensitive intelligence secrets. The CIA inadvertently permitted these purloined Israeli secrets to fall into the hands of its enemies when it left this document in the American embassy in Teheran.

The US, to be sure, may have had amply national security grounds to justify such espionage against an ally. But, by the same token, so may an ally have had national security grounds for using espionage to acquire secrets that US intelligence had intercepted from Iraq and Syria. For example, one target of Pollard espionage was the data that the US had obtained about Saddam Hussein's biological warfare capability. So two allies were illicitly attempting to obtain each other's intelligence secrets during a tense period in the Middle East. The only difference is that the US continues to keep one of the pawns involved in this game permanently incarcerated--as if he were a lone conspirator.

The passions surrounding this case now seem detached from reason. Consider, for example, the passion expressed by Pollard's prosecutor, Joseph diGenova when asked this December about the possibility of a Christmas pardon for Pollard. He told the New York Times "It is absolutely indefensible from either a legal or humanitarian standpoint to grant clemency to him" from his life sentence. Yet, diGenova himself had made the (unkept) deal not to ask for a life sentence for a life sentence--a deal which he would presumably not have brokered if he deemed it indefensible from both--a legal or humanitarian standpoint. Nor do diGenova, or other Pollard-haters, vent their passion against the principle behind the agent, or call for its permant punishment, which would be politically unacceptable (at least outside of the Buchanen camp). Pollard is their designated substitute.

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