ACLU Calls For Release of Secret Pollard Memo
M. Langsam - Ha'Modia - January 5, 2001
In over 15 years of incarceration, Jonathan Pollard has not been permitted to challenge the contents of a secret memo that doomed him to life imprisonment. Now the government's decision to continue withholding access to that classified document has become the subject of a forceful challenge from a new quarter, the American Civil Liberties Union.
The ACLU's interest in the case stems from its traditional lobbying for the people's right to examine what lies behind government claims of "national security" when those claims are used - as in the Pollard case - to justify the violation of an individual's constitutional rights.
The conviction that the government's insistence on keeping the memo out of the hands of Pollard attorney Eliot Lauer - who has obtained the required top-security clearance - is indefensible and has prompted the ACLU to file a friend-of-the-court brief, arguing for the disclosure of the documents to Lauer.
The secret memo consists of devastating secret testimony written by former Defense Secretary Caspar Weinberger and submitted to the judge presiding in the Pollard case one day prior to sentencing. This late-hour move left Pollard no time to acquaint himself with the charges and respond to them.
Largely on the basis of the Weinberger memo, which accused Pollard of treason - a charge of which he was never indicted in court - the U.S. government broke its plea-bargain pledges to Pollard, especially its agreement not to seek life imprisonment.
The ACLU brief cites the patent unfairness of the government's refusal to accede to the requests of Pollard's lawyer in that it, contravenes the right of a defendant (a) to have access to the evidence used to deprive him of his liberty and (b) to have the assistance of counsel who is equipped with the requisite information to provide a fair defense.
The brief labels the rationale that Mr. Pollard's new counsel does not have a "need to know" the classified information "unworthy of respect."
"Mr. Pollard's new attorney urgently needs access to this classified information so that he can represent his client effectively [in Pollard's bid to seek executive clemency before President Clinton leaves office]," the brief asserts.
The ACLU document goes on to accuse the government of "an abdication of a fundamental duty" in its pursuit of national security, namely, the "equal duty to see that justice is done to a defendant whom it has chosen to prosecute," and its duty to ensure that the defendant's civil liberties are not trampled upon.
"Few weapons in the arsenal of freedom are [as indispensable] as the power to compel a government to disclose the evidence on which it seeks to forfeit the liberty of its citizens," the ACLU brief attests.
The government's attempt to withhold classified information from Pollard's security-cleared counsel thus jeopardizes every American's right to fair representation in the judicial arena, the organization says.
Vital Freedoms At Stake
Among a growing body of elected officials who have advocated Pollard's release - or at the very least, a complete judicial review of his case - New York Senator Seymour Lachman has now strongly endorsed the ACLU amicus curiae brief, and has urged many of his colleagues to do the same.
"Vital principles of American Constitutional freedoms are at stake in Mr. Lauer's request for access to the secret file against Pollard," Lachman warned.
Lachman has voiced his belief that with the withholding of evidence critical to Pollard's defense, "one of the lynchpins of the American system of justice is in jeopardy."
It was the failure of Pollard's first attorney to adequately respond to the secret memo's charges against his client that formed the basis of Pollard's recent motion for re-sentencing. That failure, compounded with, the U.S. government's violation of its plea bargain agreements - especially the agreement not to seek a life sentence against Pollard - was an unlawful violation of Pollard's constitutional rights, the motion asserted.
Earlier, in a letter addressed to President Clinton, Senator Lachman called for the release of the Weinberger memo, questioning why the president would continue to rely on what Weinberger, "who himself was under investigation," wrote in his secret memorandum to Pollard's judges.
The Wheels of Injustice Grind On
In jail since 1985, Pollard in 1987 was sentenced to a life sentence in federal prison, longer than anyone else ever convicted in an American court of a similar crime.
It bears recalling that information Pollard transmitted to Israel caused the United States no harm and dealt only with countries hostile to Israel and with information America was obligated to share with Israel according to a 1983 Treaty of Understanding.
Pollard's information alerted the Israeli government about critical threats to its security coming from Iraqi chemical manufacturing plants; terrorist schemes against Israel; satellite pictures of hostile neighboring countries such as Lebanon, Syria and Libya; and technical information about Soviet armaments sold to these same countries. This information helped Israel to protect itself against the attacks of Iraqi Scuds during the 1991 Gulf War.
For this Pollard was branded by Caspar Weinberger "the worst spy in U.S. history" and remains subject to relentless efforts by the State Department to keep him jailed for life. He is still being treated as a dangerous criminal whose release today, we are asked to believe, would seriously jeopardize the nation's security.
It is high time, assert a growing chorus of voices across the nation, that the documents aimed at keeping a repentant, ailing Pollard behind bars for life be scrutinized, allowing the defendant his first chance - after 15 years of imprisonment - to defend himself. Let not past injustice be compounded immeasurably by continued prejudice and unusually cruel punishment.
ACLU Amicus Brief
The Court Case 2000 Page