During the years of my involvement in the campaign to free Jonathan Pollard, I often took part in discussions as to whether anti-Semitism was a factor in Pollard's life sentence, and if it was, whether it was wise to level such a charge. Prominent individuals at the highest levels of the campaign were usually very reluctant to raise the issue, fearing that it would anger the U.S. government.
But now, with Pollard starting his 17th year in prison, it is clear that nothing has or will be gained by continuing to tiptoe around the role of anti-Semitism in the case. Smoking guns in discrimination cases are a rarity. But with the retrospective of 16 years and a dispassionate examination of the government's actions during that period, a most troubling reality must be acknowledged. With the passage of time, there are now many similarities between the Pollard case and the notorious Dreyfus Affair.
Of course, unlike Alfred Dreyfus, the French general staff officer convicted of treason in 1894 and later exonerated, Pollard was guilty. He broke the law, acknowledged his guilt, and on numerous occasions expressed remorse for his actions. But Pollard has long paid his due for the charged of conspiracy to disclose classified information to Israel with intent that it be used to Israel's advantage.
Pollard is innocent of the accusations made by then Secretary of Defense Caspar Weinberger that are the basis for Pollard's life sentence and his continuing imprisonment. Pollard was not charged with intending to injure, or even of having any reason to believe that the information he transmitted to Israel could harm, the United States. Nevertheless, Weinberger submitted an 11th hour memorandum to the sentencing judge urging the court to impose a punishment that would "reflect the magnitude of the treason committed."
Since treason is defined as aiding an enemy of the United States during wartime, the treason charge was as flagrantly false in the Pollard case as it was in the Dreyfus Affair. Dreyfus spent five years on Devil's Island for a crime he did not commit. At least 10 of the 16 years Pollard has served are attributable to crimes he did not commit and, in fact, was never charged with.
The charges against Dreyfus were supported by contrived evidence presented to the military court by France's minister of war. Dreyfus never had a chance to refute those charges. Similarly, Pollard's various counsel throughout the appeals process have all been denied access to classified portions of the Weinberger memorandum. In the latest example of this Kafkaesque situation, a U.S. District Court judge, responding to a new legal motion made by Pollard, ruled that Pollard's attorney had "no need to know" the contents of Weinberger's classified submission.
Evidence surfaced during Dreyfus' incarceration that another officer was guilty of the crime. While the French army essentially ignored these revelations, it added to the public controversy surrounding the case and was a factor in the pardon Dreyfus ultimately received. In the Pollard case, there was a similar phenomenon, but without the resulting public uproar.
When Aldrich Ames was arrested in 1994 — on charges of espionage for the former Soviet Union — we learned that in the mid-1980s, at least 12 U.S. operatives in the FSU were killed after their identities were compromised. This obvious Soviet penetration created a panic within the intelligence community. On the heels of this intelligence debacle, the arrest of Pollard in November of 1985 provided an easy way out of a vexing mystery and a ready vehicle for Pollard-bashing. The contrived accusations went something like this: Unnamed intelligence sources would leak to the media — especially when there was any talk of Pollard's possible release — that they suspected that some of the information Pollard gave to Israel might have been obtained by the Soviets. An analysis by the Soviets of this information could have compromised U.S. sources and methods, possibly leading to the exposure of Western operatives.
Even Pollard's harshest critics acknowledged he did not intend and was not aware of any alleged transfer of information beyond Israel. And they admitted that they had no evidence to substantiate their speculation. Certainly, this convoluted guesswork should have ended with Ames's confession that it was he who, just a few months before Pollard's arrest, transmitted to the Soviets the names of virtually every Western operative in the Soviet Union known to him. But those who want to exact a pound of flesh from Pollard refuse to allow facts to get in their way.
Where was the unforgiving anger of the U.S. intelligence community when others during this time, convicted of passing classified information to Egypt, Saudi Arabia and the Soviets, were given far lesser sentences?
It is all too apparent that those who obsessively seek massive punishment for Pollard want to send an unmistakable warning to the American Jewish community, in general, and to Jews who work in government, in particular. When officials say it would weaken deterrence to release Pollard, even now, what they really mean is that with so many Jews working at all levels of every federal agency and department, they must be sure Jews will not be tempted to do what Pollard did.
Giving Pollard a sentence in the 10-year range would have sent a clear message that if you spy for Israel, not only will you not get off with a slap on the wrist, but you will actually receive a disproportionately high sentence. But this sinister design is being carried to a reprehensible extreme, flaunting a fundamental principle of the American judicial system that people who commit similar crimes ought to receive reasonably similar punishments. The five years that Dreyfus spent on Devil's Island will forever constitute a black stain on France's Third Republic. History will be equally harsh not only with those directly involved in the imposition and preservation of Pollard's life sentence, but with all who failed to speak out against such a shameful and inexcusable abuse of core American values.
David Kirshenbaum, an attorney in Israel formerly active in the effort to free Jonathan Pollard, has written and lectured extensively about the case.