Setting the Record Straight on Pollard
Kenneth Lasson, Esq. - Special to the Baltimore Jewish Times - July 19, 2002
Edwin Black's cover story in this week's Jewish Times reaches the right conclusion - that Jonathan Pollard was the victim of gross misconduct by government prosecutors and clearly deserves a rehearing on his sentence - but it contains enough factual inaccuracies and skewed innuendoes to require clarification.
While the piece comes across as comprehensive and definitive, like much modern journalism it tends to sacrifice truth to opinion for the sake of an angle. Here, the slant is that Mr. Pollard's plight is more the result of "legal technicalities and foolhardy bravura than political intrigue."
Mr. Black is entitled to his opinion, but let's get the facts straight:
The article suggests that the focus of Pollard's life imprisonment now rests on two men: his first lawyer, Richard A. Hibey, whose ineffective counsel failed either to challenge the prosecutors' breach of a plea agreement under which the government would not seek the harshest penalty or to file a routine appeal of the sentence and Pollard himself, whose alleged self-righteous and hot-tempered personality and "provocative conduct while in federal custody" ensured that he would remain behind bars for a very long time.
While many lawyers and law professors agree that Hibey miserably mishandled the case, the charge against Pollard is based essentially on unfounded assumptions generated by blatant prosecutorial character assassination. Black buys into an easy excuse for Pollard's harsh treatment: "Keeping one's mouth shut and displaying remorse is the first priority when seeking the mercy of the court." In so doing he skews the law in favor of prosecutorial animus.
Regardless of Pollard's personal peccadillos, or the extent of his alleged dual loyalties, or the degree of his remorse - all of which are highly speculative matters very much open to differing opinion - none of his actions justify the government's conduct against him, which federal Judge Stephen F. Williams labeled "a fundamental miscarriage of justice."
Black's focus upon Pollard's personality tends to camouflage and mitigate the behavior of the Justice Department's chief prosecutor, Joseph DiGenova, whose charge that Pollard himself breached the plea agreement is accepted whole cloth. DiGenova claimed that before
sentencing Pollard granted unauthorized interviews to Wolf Blitzer, then the Washington correspondent for the Jerusalem Post. "[T]he Pollards tried to outsmart mercy. They decided to rally the American Jewish community and massage public opinion. Pollard presented himself as a highly motivated Jew determined to help Israel in the face of an intransigent American intelligence community that was endangering the Jewish state."
This, concludes Black, "outraged" the prosecutors, who told the judge that the Blitzer interviews had been unauthorized - as if Blitzer had somehow snuck into the heavily-guarded federal prison without permission.
Only some thirty paragraphs later does Mr. Black imply that the interviews may indeed have been authorized.
In fact, the Pollards had duly applied to the director of Naval Intelligence for permission to grant the interviews (precisely as required by the plea agreement), and they had been fully approved.
Perhaps Black's most misleading conclusion is that "[T]hough Pollard has sought to downplay the consequences to the U.S. of his actions, his crime was lasting and devastating to the intelligence community." Black claims to have obtained a copy of a declaration by former Secretary of
Defense Caspar Weinberger, which "indicates that Pollard indeed compromised the most sensitive aspect of American intelligence, providing Israel with the highest level of secret information."
The Weinberger Declaration describes "more than 1000 . . . secret and sensitive messages and cables . . . delivered to Pollard's Israeli handlers" and suggests that they "even could have ended up in Moscow, perhaps as a bargaining chip at a time when Israel was trying to free Soviet
Jews." Black goes on to cite "informed sources" who claim that Pollard's disclosure of a "global listening profile" was "the crux of a secret exchange in [the] courtroom just moments before the outraged judge finally pronounced a life sentence. Some estimate the loss cost America
billions of dollars and many years in completely restructuring the country's worldwide eavesdropping operation." [
J4JP Note: This charge is not only false, it is patently absurd. Jonathan Pollard was never indicted for compromising codes, agents, or war plans. He did not have the training or the security clearances necessary to access cryptological information. See The Facts Page]
Weinberger's allegations, repeated by Black as unassailable truths, were and remain very provocative - but there is good reason to believe that they were all wrong.
In fact, no damage to U.S. intelligence has ever been proven. According to Angelo Codevilla, a respected professor of international relations at Boston University, the negative impact of Pollard's disclosures was negligible. Codevilla was in a position to know: he had been a naval and foreign service officer and a senior staff member on the Senate Intelligence Committee. Although Codevilla has been widely quoted on the Pollard case - that those who were found to have committed the crimes Pollard was secretly accused of were given lighter sentences than Pollard, and that Pollard "was sentenced on the basis of things whispered in the ear of a compliant judge" - he is not mentioned in Black's article.
Codevilla has also said that Weinberger lied to the judge about Pollard's role because he (Weinberger) had long advocated Saddam Hussein's development of missile and non-conventional weapons capability, and was angered that Pollard's disclosures had helped Israel destroy Iraq's nuclear reactor.
But Weinberger's declaration was never subjected to challenge in court - a gross violation of fundamental principles of American criminal justice.
Outside of presidential clemency, Pollard's only legal hope now is a habeas corpus action launched by his new pro bono attorneys. Their argument, that the government's breach of the plea agreement was flagrant and dwarfs anything Pollard himself may have done before and
during his incarceration, has substantial merit.
Although Black's article makes an impressive effort to tie together an exceedingly complicated series of events and jurisprudence, its twists and turns too often miss the forest for the trees and, taken in perspective, are unfair to the Pollards.
Kenneth Lasson, a law professor at the University of Baltimore, has written extensively on the Pollard case. He has also authored two amicus briefs on behalf of various distinguished American law professors who likewise advocate Pollard's release.