WABC Special - Interview of Attorney Eliot Lauer
J4JP Release - July 18, 2001 - May be Reprinted
Transcript of Interview as aired on WABC June 23, 2001
The John Batchelor & Paul Alexander Show
Welcome back. This is John - and Paul - and we're discussing tonight at
length the Jonathan Pollard case. Jonathan Pollard was convicted of one count of passing classified information to an ally in the 1980's and remains in jail in 2001, the 21st century.
Paul: And on the line with us for the last hour has been his wife, Esther Pollard, in Canada. Joining us now is Eliot Lauer, Esq., of Park Avenue, I believe.
John: Eliot, are you there?
Elliot Lauer: Yes I am.
John: Thank you very much for joining us tonight. We are a cast of characters here, Eliot. We welcome you to the show. We've come to the point where we need a lawyer. Paul wants to address the court case in the '80's, and then I want to talk about the court case in the 21st century.
Paul: I think what to me is very interesting is what happened from the time the American Government found out that Jonathan Pollard had done this to the time that he showed up for prison. There's a plot there that, as a reporter, doesn't make much sense to me. Can you walk the audience through that and try to help them understand what happened?
Elliot Lauer: Well, let me try to address it from a lawyer's perspective. Jonathan was arrested at a point in the process. He decided that he would co-operate with the United States. Over a period of many months he was extensively debriefed which, of course, involves polygraph examinations to ensure the integrity of the process. And in the course of this lengthy debriefing process, he reached an agreement with the United States government which provided, among other things, that he would plead guilty to
one count - conspiracy to commit espionage of providing classified information to Israel. It was quite clear: he was never charged with ever intending to harm the United States; and there was never any express or implied aspect of the charge with any intent to harm the United States.
Paul: And how long did this process take, from the point when he was arrested to the point where he ended up at the prison door?
Lauer: It took, I think, about eight to ten months. I don't remember the exact dates. As you may know, we did not represent Jonathan until May of 2000.
Paul: And why was there no trial?
Lauer: Well, in espionage cases it's quite common for the government to avoid a trial by reaching a plea agreement, which it did in this case. And Jonathan thought that, in consideration for his co-operation and in consideration for enabling the government to avoid a trial, that the government would honor the plea agreement that they reached.
The agreement that was reached in 1986, the year following Jonathan's arrest, and
throughout this time Jonathan was essentially in solitary confinement in the federal prison system - the agreement that was reached provided that the government would not seek a life sentence; second, that the government would bring Jonathan's co-operation to the attention of the court in a serious manner; and three, that in addressing the appropriateness of sentence. the government would only focus on the nature of the crime and any harm that the government would claim had been caused the United States. They would not raise issues dealing with politics, or character or anything of the sort.
Paul: So you're saying that in the plea agreement itself - let's underscore that - there is an agreement not to give him a life sentence?
Lauer: The way it is worded - and there's no disagreement about this, and the United States Court of Appeals for the District of Columbia has clearly acknowledged this - that the wording of the plea agreement which provided that the government would/could seek a substantial sentence meant - and everyone agrees, including Joe diGenova, the former chief prosecutor - that the government agreed that it would not
seek a life sentence.
Paul: How did he end up with a life sentence, then?
Lauer: He ended up with a life sentence because, among other things - and I believe Mrs. Pollard referred to the supplemental declaration of Caspar Weinberger, which I will address in a moment - among other things, after reaching the plea agreement with Jonathan, the government engaged in an orchestrated campaign to achieve a life sentence by using every means available other than using the "L" word.
And let me give you one cogent example. The day before the sentence, Caspar Weinberger, then Secretary of Defense, put in a supplemental declaration. This is a three-page document, it is a public record. And in this supplemental declaration - this is to distinguish it from the 46-page declaration he had put in earlier, 20 pages of which remain confidential - but in this supplemental declaration the day before sentence, Caspar Weinberger, referring to three convicted spies - Pelton, Whitworth and Walker, all of whom had been convicted of spying for Russia, then an enemy of the United States, each of whom had received a life sentence, Caspar Weinberger said the following: Quote: "It is difficult for me, even in the so-called 'Year of the Spy', to conceive of a greater harm to national security than that caused by the defendant," referring to Mr. Pollard. So, in effect, what Weinberger was saying to Judge Robinson is that Walker, Whitworth and Pelton each received life sentences; and in this 'year of the spy' Pollard, the man whom you will sentence tomorrow, on March 4, he did more harm. A fortiori, as we lawyers would say, if each of them got life sentence what should Pollard get?
John: Eliot, you've seen cases before, you've quoted cases, you've studied cases to prepare for the Pollard case. Haunting question remains: Why is Jonathan Pollard being treated differently?
Lauer: I think Jonathan is being treated harshly. I can't comment on whether he is being treated differently; there are others in the criminal justice system who may also be suffering from unfair treatment. But he is being treated in an unduly harsh manner - clearly in a manner that is inconsistent with the sentences that were given out to others who were convicted of the same or similar offense.
I believe - and this is speculation on my part - but I think that what we are experiencing is an institutional intransigence based on the presentations that were made in 1987. And I think that the prosecutor's office at that time went beyond the limit - they breached the plea agreement and they were overly zealous in a way that was inappropriate.
John: But why?
Lauer: (pause) I don't know why. I can deal in "what"; I can deal in the fact that they did breach; I can deal in the fact that the court was persuaded by arguments that were entirely inappropriate...
John: That's what I mean by "different"... Eliot, you've been wonderful about the law and we're going to continue with you after the break. We're going to continue to blast away, because this is ABC and this is politics. This is venom. This is Cap Weinberger's venom. This is a man who is no longer in charge of anything. It is 16 years later, he is the chairman of the Forbes board, he flies in and out of here on a Forbes jet all the time. Cap Weinberger could address this mistake in his career right now.
Paul: And John, when we come back I want to know more about that secret document that people have not read.
(Commercial break then program resumes.)
John: This is John and Paul and Eliot and exactly what is the distinction that we
can't quite get at.
Paul: I think the rabbi just said it: Jonathan Pollard is being treated differently because he is a Jew.
Rabbi Potasnik: And John, before the break you mentioned Dreyfus. The common link between the two cases is a false charge of treason. Dreyfus was charged with treason, and he wasn't guilty of treason; and Jonathan was not charged with treason, and he's being falsely accused of treason.
John: Eliot, we're going to return to you.
Elliot Lauer: Let me try to bring it back to the case, itself, because there is a connection. Jonathan was arrested for providing classified information to Israel. Essentially, the gist of what Jonathan gave Israel was information that, previous to the bombing by Israel of the Osirak reactor in Iraq, had been given to Israel by the United States. The United States government and, undoubtedly, some of the pro-Arabists in the foreign policy sphere of the government, were incensed that Israel had bombed the reactor without seeking the consent of the United States. They then embarked on a policy of cutting Israel off from a significant amount of intelligence information on
terrorist activity, Arab troop movements and the like. Jonathan's basic activity, which was at the core of his crime, was providing this information to Israel.
When Jonathan pleaded guilty and entered into his plea agreement, I think the general tenor at the time of the plea agreement was this was clearly an offense that wouldn't come close to life in prison.
I believe what may have happened, here, is that Caspar Weinberger and those in the government at the time who were embarrassed by the entire affair, embarrassed that this information had been provided to Israel, felt that they had to make an example out of Jonathan. And that perhaps in any other context, if Jonathan had provided similar information to Canada or France, or another ally of the United States, he would have been treated in the manner that those who indeed have been convicted of those offenses - and there were dozens of less celebrated situations where individuals provided classified information, secret information and have received sentences
ranging from a few months to a few years.
I think they wanted to make an example of Jonathan; I think there was an element of embarrassment and anger, and here's what I think happened: they went out of their way and they oversold the case to the judge.
Weinberger's original declaration, the 46-page declaration that was put in November or December of 1986 - 25 pages of which remain classified - I believe- exaggerated the harm that Caspar Weinberger and the prosecutors claimed to the court had been committed by Jonathan.
Paul: Eliot, explain to me why those 25 pages are classified.
Lauer: I can't tell you why they're classified today. I can tell you that at the time, the court security officer felt that the information referred to by Weinberger in the declaration was either secret, top secret or confidential.
Paul: And it pertained to national security?
Lauer: It would have involved some element of national security - either intelligence-gathering systems or technology that, at the time, was considered sensitive.
John: To your knowledge, who has read those 25 pages through the years?
Lauer: To my knowledge, after March 4, 1987, which was the day that Jonathan
was sentenced to life in prison, no-one representing Jonathan had seen those
documents.. No-one, to my knowledge, has seen those documents.
I can say that we obtained top-security clearance for the express purpose of
seeing the 35 pages. The Department of Justice gave me the clearance, gave
my partner Jacques Semmelman similar clearance. We then said to the
government, we now have the clearance; we would like to come to the vault in
the Department of Justice in Washington and review these documents.
As you can imagine, this is a confidential setting; we can't take notes, we
can't discuss it. All we want to do is come see documents that were at the
core of the sentence and which no-one representing Jonathan has seen in
14 years. This was the summer of 2000. We were denied access. We filed a
motion with the district court. We argued it before the district court. The district court denied our motion. We have filed a Motion for Reconsideration, pointing out certain things that we felt the court needed to focus on...
John: Eliot, have any senators seen the file?
Lauer: No-one has said directly to me that they have seen the file. I know
that Congressman Anthony Weiner has been working diligently, personally to
see the file.
Rabbi Potasnik: Eliot, in any other cases that you've studied, have there been declarations by Secretary of Defense?
Lauer: There may be some precedent for it, but it's quite unusual for the Secretary of Defense to directly interject in a criminal case of this sort.
I would ask you and all your listeners, and people who have taken an interest in this very unfair situation, to ask the government one basic question: Why does the government, the Department of Justice, continue to refuse access to security-cleared lawyers representing Jonathan from seeing, in confidence, these 30 pages?
Paul: How many actual pages are we talking about here?
Lauer: We're talking about 30 to 35 pages. I have what we call the unredacted version of the Weinberger declaration, so I can count the pages that are blank...
John: This is John Batchelor, Paul Alexander, and we are joined by Rabbi Joe
Potasnik, and on the line with us is Eliot Lauer representing Jonathan Pollard as recently in the court of Norma Holloway Johnson for the application to see those pages. And the government was represented by Ronald Walutes for the U.S. Attorney's office. And that was the previous administration, that's Janet Reno's Justice Department.
Ronald Walutes is not a political appointee; he is what they call a career attorney, if that's correct. And I've read this document about why they turned you down. Norma Holloway Johnson, now retiring from the United States district - she's the famous judge in the impeachment proceedings in Washington. Can you say for our audience, in a way that makes sense to them what was their argument and Judge Johnson's response?
Lauer: Well, they (the government) had two arguments and so far the judge has accepted those arguments. One was that we did not need to know the information; and the other was that it would pose a grave threat to national security for us to see the documents.
John: What do you mean by "need"? Do that again for us, Eliot, so everybody gets it. This is WABC and Eliot Lauer, an extremely expensively-educated man is about to help you understand the word "need".
Lauer: In order to gain access to top secret or secret information, two things must be shown:
a) that the person seeking access is eligible to get access - and I am; and
b) that you have a demonstrated need-to-know.
We, of course, qualified as eligible when we went through the elaborate security
clearance process conducted by the Department of Justice.
John: You and Jacques Semmelman...
Lauer: He's my partner at Curtis, Mallet-Prevost, and we did this precisely
and exclusively - and known to the Justice Department - for the purpose of
getting access to these very materials.
Paul: Apparently "need to know" is a legal term, right?
Lauer: Yes. It is part of the statute that governs access to confidential material: you need to know. We argued, of course we need to know.
John: Of course you need to know! How could you not need to know? I mean, isn't this document at the core of the judge's sentencing Jonathan to life?
Lauer: It is ground zero.
John: Eliot, we're going to take another break, and when we come back, we're going to pummel you with these obvious questions. This is the Jonathan Pollard case, and you do not need a law degree to answer some of these questions.
Those of you at home who are sitting at your computer, go to d-r-e-y-f-u-s, the case from the French Empire, 1894; an innocent man, accused of treason, convicted, jailed and rescued by Emile Zola, who is probably the bookish equivalent of WABC in "J'Accuse".
But we'll do it in plain old English, Eliot: We accuse the Justice Department of being "fudge" artists, of fudging justice.
This is John - and Paul - and Rabbi Joe - and Eliot. We'll be back with you.
Following the Commercial break, a taped comment by Joseph diGenova, chief federal prosecutor in the Pollard case is played. The taped comment was made in 1987 following the sentencing of Jonathan Pollard.
diGenova: The sentence imposed today by Chief Justice Aubrey Robinson of a life imprisonment on Jonathan Jay Pollard and a five-year sentence on his wife, Anne Henderson Pollard, reflects in a manner better than I can the degree of damage which was done to the national security of the United States...The Judge was not ignorant of the facts in the case. The sentence which he imposed reflects the severity which he viewed to have been caused to the national security of this country.
Tape concludes and program resumes.
Paul: Welcome back; John and Paul and Joe, the three amigos here with
Eliot Lauer representing Jonathan Pollard who is in life imprisonment in a
federal penitentiary under unacceptable conditions. Listening on the line in Canada is his wife, Esther. And Eliot. Those were the words of Joseph diGenova, and that was back in the '80's, when he was a young media star. Now he's an older media star.
Rabbi Potasnik: People are listening to Eliot. I think it's important to know - it just shows you the extent of Eliot's commitment and Jacques' commitment, the firm's commitment - they have taken on this case pro bono; they are receiving absolutely no financial gain from this case. They truly believe.
John: Alright Eliot; have you ever spoken with Joe diGenova?
Lauer: We've corresponded with Joe recently; we haven't talked with him a lot. But I would like to comment on something because you played a tape of Joe diGenova right after the sentencing. diGenova was the Chief Prosecutor and he was boldly proclaiming that the judge was "not ignorant of the facts." I think the truth is that the judge was ignorant of the facts, and what he thought were the facts were gross exaggerations. Let me give you one cogent example.
John: Alright Eliot. Before you do that, I want to go back over that. Now, that was from the 1987-88 period, when Joseph diGenova was an assistant U.S. attorney in the district in Washington where the prosecution was held. This is the same man you see all the time on MSNBC with Geraldo; this is the same man, with his wife; and those remarks, the ones we just played for you that's from the ABC file tape where I got it from, Eliot - those remarks are incorrect. He (diGenova) makes incorrect remarks; and that's what Eliot Lauer, representing Jonathan Pollard, is about to help us with.
Lauer: Let me tell you one little story that happened, which was our first direct encounter with Joe diGenova who was the United States attorney and was the chief prosecutor in 1987.
Back in August of 2000, at the first Hillary Clinton-Lazio debate Tim Russert, who was moderating the debate, asked Hillary Clinton a question about Mr. Pollard and referred to him as having been convicted of treason. We immediately wrote Mr. Russert
and we said he was not convicted of treason; he pleaded guilty to one count of espionage, and was never charged with harming the United States.
That Sunday, Russert went on Meet the Press and acknowledged that he had spoken
incorrectly. But in an effort to sort of balance the pros and the cons, said that he had spoken with Mr. diGenova who said that, indeed, Mr. Pollard had "given up the names of agents." And as we saw with this Mr. Hanssen from the FBI, giving up the names of American agents is, indeed, a heinous offense, very serious.
We immediately wrote Joe diGenova, that is Jacques and I, and we said, Mr. diGenova, we have gone through the voluminous file on this case; we have seen all the government allegations. There is not one reference to Mr. Pollard ever giving up names of agents; there is no suggestion that he did it - it is simply not there.
diGenova wrote back a letter, and he said one of the most astonishing things: this is
after Tim Russert quoted him on national TV saying that Pollard had given up
names of agents. diGenova said "That was my professional opinion."
Rabbi Potasnik: So, Eliot, there is this thread that seems to run through the entire matter: Weinberger, diGenova, Jonathan Pollard is being treated differently. Why? I keep coming back to the fact it's because he's a Jew.
(Lauer is silent. Hesitating.)
John: Eliot, your quiet response underlines that question.
Lauer: I would say Jonathan is being unfairly treated , he's being harshly treated.
I think he's being treated unfairly and harshly because he gave classified information to Israel.
Rabbi Potasnik: I'll go the extra step. Eliot is defending this entirely on its legal merits. But, as a rabbi, I must say that there is anti-Semitism here. It becomes more apparent as more is exposed.
John: Thank you, Joe. I agree with you and I'm going to go back to '87 -
that's the second Reagan administration; then there's George H.W. Bush's
administration beginning in '89-'93; then Bill Clinton's administration beginning in '93 and the two administrations. You reviewed how the Justice Department - and there have been a lot of personnel changes since then - has handled Jonathan all these years. Can you generalize about how his case has been treated from administration to administration? Have they all fumbled it, or have there been bright spots? I'm pointing now to Wye River, especially.
Lauer: Well, I would say Jonathan's case was basically ignored for the
better part of a decade.
He was treated in an unusually harsh manner -almost Kafkaesque - throughout the sentencing process. He did not have effective representation, which allowed the government to blatantly breach its agreement.
After his sentence, I would say the government continued to press the position; but essentially, from 1992 until the Fall of 2000, there was virtually no activity in Jonathan's case.
John: I started out this show by calling this a conspiracy of silence. That's essentially what it is. And now let's go back to the Wye River Plantation. Can you summarize for us what happened in that negotiation between former Prime Minister Netanyahu and former President Clinton?
Lauer: As best I have been told by people who were not there but who spoke
with people who were there, including Minister Scharansky, that's Anatoly or
Natan Scharansky, my clear understanding both from the public domain and
from people who were there is that Prime Minister Netanyahu made it very
clear that he would sign the Wye Agreement - and I believe part of the Wye
Agreement was freeing dangerous Palestinian terrorists and giving up areas of Judea
and Samaria to the Palestinian Authority. And one of the conditions that Prime Minister Netanyahu set was the freeing of Jonathan Pollard.
John: That was a part of the agreement. This is August of '98.
Lauer: Correct. It was part of the agreement. There were 32 or 33 Letters, with specific agreements that the United States was assuring Israel of, in consideration for Israel agreeing to free Palestinian terrorists and to cede additional land to the Palestinian Authority. One of those was to be a letter in which President Clinton guaranteed to free Jonathan Pollard.
John: We have to take a break, Eliot. But when we come back, we want to know what's going on with this, right now. And I want to go back to one thing you said to Joe, that we went through too quickly to suit me; and that is that there is no one consistent person in charge of the Pollard case.
This is being handled by one person who passes it on to the next, and so on. It looks to me like it's not worth the while of men in power to do something for Jonathan, to get involved. That's why we're having you here tonight: you're involved, Joe's involved, Paul and I are now involved. Getting involved means taking risks, Eliot. You're taking a risk coming on WABC tonight. Correct?
Lauer: I think you are doing a great service.
John: Eliot, what is happening in this case right now?
Lauer: Right now we have two motions pending before the court. The first motion is to vacate the sentence, on the ground that the government breached the plea agreement and that Jonathan was deprived of effective assistance of counsel in that his lawyer at the time did not prevent the government's breach, as he should have. One of the most fundamental errors was failure to take a direct appeal from the sentence.
The second motion is, we are asking the court to reconsider her initial decision depriving Jacques and me of having access to the 30 or 35 pages of top secret material.
And third, we are at the same time trying to entreat the Department of Justice, which has access and control of these secret documents, to provide us access in the interests of fairness, in the interests of justice.
Paul: Do you see any change under a Bush, Jr. administration?
Lauer: At this point I have not had any contact at the political level, so I
couldn't comment on that.
John: Are you hopeful that with the new administration the tone will be
Lauer: I am very hopeful that President Bush and Attorney General Ashcroft, two individuals for whom I have great respect, when they are able to look at the merits of this case, will do the right thing.
Paul: Eliot, isn't the bottom line here, whatever happened all those years
ago, here's a man who's served for almost 17 years. He's ill. Isn't it
time to allow him to get out, to seek medical treatment, to try to get his
life back together?
Lauer: Absolutely. Jonathan has served more time - probably more than twice as long - as anyone in the history of this country who has been accused of doing the same thing.
John: Eliot, I want to go back to Tim Russert. Thanks to diGenova's misinformation, Tim Russert said something on national television that is wrong, false, awful. Have you spoken with Mr. Russert about that statement?
Lauer: We have corresponded with him; we have not spoken with him live. In fact we asked him to correct that misinformation, but he did not.
John: He did not? Did he respond to your request?
John: I just want to mention that there was an intern in here on Friday when I was doing prep for this show; and he gave back to me what he'd heard from Tim Russert on that show that morning: he used the word "agents". I looked at him and I said, "Those aren't the facts."
Eliot, you've been wonderful to us, and we're going to have you on again but we've got to get out now. And when we come back, (after the next commercial break) we're going to have Congressman Weiner on. This is WABC, the Jonathan Pollard case.