Shocking Revelations in Pollard Case
Michael Stein - Hamodia - June 13, 2003
A conversation with Eliot Lauer, Esq., Jonathan Pollard's lead lawyer, confirms that new developments may benefit his client. Summary and analysis follow.
The case for the release of Jonathan Pollard has taken on a new twist with the recent publication of an article by noted author and former Justice Department attorney, John Loftus, in which he claims that Pollard's severe punishment can be attributed to heretofore unknown information, and for which he was deliberately framed.
In a comprehensive article that was published in Moment Magazine, Mr. Loftus contends that the real reason for Pollard's severe punishment was due to the widely-accepted assumption within intelligence circles that Pollard was inadvertently responsible for the capture and murder of all American spies in the former Soviet Union over the period of a year. This presumably happened because Pollard leaked this information to the Israelis, whose intelligence apparatus was compromised by the presence of a Russian mole. This mole allegedly passed on the information to the Russians, who then proceeded to rid themselves of all American spies.
However, in his article, Loftus asserts that in reality the Russians received their information directly from their agents planted within the FBI and CIA. These double agents, blue-blooded Americans so called WASP's had no qualms in betraying their colleagues to the Russians in exchange for huge sums of money.
Loftus identifies these traitors as Aldrich Ames and Robert Philip Hanssen, who were apprehended years after the Pollard case. Pollard was actually framed by the Russians, maintains Loftus, with help from Ames and Hanssen, in an attempt to safeguard and deflect attention from the Soviet moles that had penetrated the American security services. The revelations and new evidence, which Loftus avers are based on reliable intelligence sources, have exposed a gaping hole in the case against Jonathan Pollard. Where there seemed to be certainty that Pollard had committed terrible crimes against the U.S., there now seem to be more questions than answers.
"The argument that Pollard is not guilty of what he was accused comes as no surprise to those who have dealt with the case recently," Rabbi Pesach Lerner told Hamodia. Rabbi Pesach Lerner, executive vice president of the National Council of Young Israel, and one of the leaders in the fight for the release of Pollard, actually visited Pollard in prison as recently as this past Monday, June 2, 2002, in Butner, North Carolina.
"For the past three years Pollard's lawyers have put together a serious case, and have proven that there have been many miscarriages of justice in his case," says Rabbi Lerner. "The legal case has gone very far, and they have a serious case to present, but the government is fighting not to allow the case to be heard. The feeling is that if a court would hear the case, the judge would be forced to vacate the sentence and free Jonathan. We believe that if the courts will hear the case, Jonathan would be out in a very short time."
Pollard's Attorney's View
Hamodia contacted the lead attorney for Jonathan Pollard, Eliot Lauer, who, together with his partner, Jacques Semmelman, of the law firm of Curtis, Mallet-Prevost, Colt & Mosle LLP, has been aggressively seeking justice for Pollard and working diligently to gain his release.
Mr. Lauer sees the new information as a positive development that reflects well on his client and ties in nicely with what he has been saying for the past few years. "Obviously I am encouraged every time someone takes a serious interest in the injustice that was done to Pollard," Mr. Lauer told Hamodia. "I certainly agree with the theme of the Loftus article, but I do not have personal access to his sources, so I cannot comment on the details."
Lauer and Semmelman were retained in May of 2000 by Jonathan Pollard. After reviewing the public file, they contacted the Department of Justice and requested permission to see the sealed file (which no one representing Pollard has seen since his sentencing on March 4, 1987).
"I was told I had to go through a process to obtain security clearance, and I indeed obtained top-security clearance from the Department of Justice," says Lauer. The secret file with the evidence presented against Pollard is estimated to consist of 25-40 pages, according to people involved with the case. Most of it is portions of a 46-page declaration by then-Secretary of Defense Caspar Weinberger about the harm said to have been caused to the United States by Pollard's actions.
Pollard himself wrote a comment on the Weinberger document, as did his defense attorney at the sentencing, Richard Hibey, and the government replied to Pollard's comment. All of this is classified. During the sentencing hearing, the court had a conference that was not transcribed and was deemed classified, and that portion is also sealed and not available to the public.
"We argued that the government should let us have access to the file," says Lauer. "We argued that charges that were raised against Pollard, with the passage of time, could be positively proven not in fact to connect to Pollard. We argued that if we were shown the charges against Pollard we would be able to show that what was attributed to him was in fact not done by him."
At the time, in Fall, 2000, Lauer and Semmelman were actively involved with the process of getting then-President Clinton to commute Pollard's sentence. "We indeed argued that we needed to know what Pollard was charged with in order to lobby for his release. For example, the reporter Seymour Hirsch claimed that intelligence sources had disclosed to him that Pollard caused irreparable damage to the United States. We argued that we couldn't possibly defend him without knowing what he was charged with, but to no avail. The government did everything not to allow us access to the so-called secret' file."
Access to the file doesn't mean getting a copy of it. It means being able to see the file in a special vault, in the Department of Justice, without being permitted to copy it or to remove it from the room. But at least Pollard's lawyers would be able to see what he was charged with and know what they were dealing with.
The government took a two-pronged approach to prevent Pollard's lawyers from seeing the file.
"The government rejected our request, on the basis that I did not have the right [level of security] clearance, and that I could not demonstrate the need to know'", says Lauer. (In order to gain access to material that is classified as secret, the appropriate level of security clearance is needed. In addition, there also has to be a proven need to know'. The material that pertains to Pollard is classified as SCI - Sensitive Compartmentalized Information.)
Pollard's lawyers filed suit in November, 2000, in the federal court in the District of Columbia and asked that the court order the government to give them access to the files. "The case that Pollard's lawyers, Lauer and Semmelman, have put together was so persuasive, that even the American Civil Liberties Union (ACLU), which is a liberal organization, signed on the legal brief that was handed to the courts," says Rabbi Lerner. The ACLU submitted an amicus curiae friend of the court brief in support of Pollard's lawyers getting access to the files.
The government argued that there was no proven need for them to see the material. As Lauer and Semmelman were attempting to get President Clinton to commute the sentence at the time, the government argued that the president could look at the material himself to decide if he wants to release Pollard. "I argued that I need the information to be able to deal with the issue seriously and lobby for Pollard. The judge, Norma Holloway Johnson, denied our motion on Jan. 12, 2001," says Lauer.
The judge accepted the government's arguments. She ruled that Pollard's lawyers couldn't access the files because they didn't have the appropriate security clearance to view these top-secret documents, and that they did not have a need to know the classified information.
Pollard's lawyers went back to the judge and asked her to at least let them view the information that is not top secret. There are 85 redactions in the file (material that was erased throughout the files sometimes entire pages), but some are more sensitive than others. "We asked to be allowed to see the material that is not classified as SCI, but a lesser classification," says Lauer.
The judge turned them down again and denied them access even to the material that was classified as lesser than SCI on August 3, 2001, on the grounds that there was no proven need, and that they didn't have the security clearance to view classified documents.
However, in an interesting turn of events, on the very same day, August 3, 2001, a letter arrived from the Department of Justice stating that Pollard's lawyers' clearance can apply to all classified material, including the top secret SCI classified material.
When asked if the government attorneys lied when they argued that Pollard's lawyers didn't have the security clearance, Lauer responded simply: "The government lawyers clearly misrepresented the facts."
Current Status: Stonewalled
Congressman Anthony Weiner (Democrat Queens, N.Y.) has been very involved in the Pollard issue, and has written many letters on his behalf. "It usually takes a year until Weiner gets a proper response," complains Lauer. Despite that, Weiner has still not given up.
In one of his letters, Weiner wrote to Attorney General John Ashcroft asking whether anyone had access to the secret file. In April, 2002, a response arrived from the Department of Justice, stating that during an eight-year period the file was accessed 25 times. Whether 25 different individuals saw the file during that period once or the same person or people saw it 25 times, the fact remains that the file was accessed.
"It is hard to imagine how someone else could have a need to see the files more than Pollard's lawyers," wonders Lauer. "If the government is prepared to let anyone that is opposed to leniency for Pollard view the files, why not allow us, too?"
Currently, Judge Hogan is assigned to the case, and Pollard's lawyers have asked that the original denial of access be overturned because it was based on the government's untrue argument that they lacked the proper security clearance.
In December, 2002, another motion was filed, requesting a status conference. "We demanded that the government answer to the judge about the misrepresentation that was made to the court arguing that I don't have security clearance," says Lauer. "Was it done purposefully and knowingly or was it an honest mistake?" That motion is still pending.
Understanding the Scope of the Charges
In his article, Loftus quotes from American intelligence sources that accuse Pollard of providing the Israelis with information about American spies in Russia. Loftus claims that is the reason for the government's anger at Pollard. But Lauer doesn't agree.
"I do not believe that is the case," says Lauer. "Pollard was never even charged with disclosing agents. He was only charged with a conspiracy to commit espionage, but not even with an intent to harm the U.S."
Official records confirm that Pollard was never publicly accused of disclosing American agents. Rather, Weinberger charged Pollard with undermining American foreign policy in the Middle East by providing Israel with information about Arab troop movements or aerial maps of Iraqi chemical weapons facilities.
Weinberger felt that Pollard's actions caused embarrassment to the United States, which was then nurturing and promoting a pro-Saddam stance. In the aftermath of the Iranian hostage crisis, the Americans were interested in supporting a secular, relatively moderate' government in neighboring Iraq, and Pollard allegedly undermined that course. Contrary to the widespread belief that Pollard provided Israel with the information that led to the bombing of the nuclear reactor in Iraq, Lauer claims that Pollard's spying began only after the bombing.
"It was common knowledge that the French were building a nuclear reactor for the Iraqis. Pollard came in after that," says Lauer.
According to Lauer, the sequence of events was as follows: After Israel bombed Iraq's reactor in 1981, then-President Reagan joined the chorus of worldwide condemnation of Israel. But the attempts of the United States to soothe Iraq and perhaps other moderate' Arab nations extended beyond words. As punishment for this action, the United States withheld crucial satellite information from Israel, information Israel was supposed to receive under the terms of previous agreements.
Pollard worked at Naval Intelligence at the time, and was said to have provided information that was crucial for Israel, including the surveillance techniques used by the Sixth Fleet. The information is believed to have led to the Israeli bombing of the PLO headquarters in Tunisia in 1985.
As far as the public docket reveals, the information that Pollard provided to Israel was not sensitive in the U.S.-Russian context. He did not disclose information that was detrimental to U.S. safety. It was information about Arabs, such as Arab troop movements much of which the United States had promised to provide to Israel in accordance with previous agreements.
"What Pollard did is a crime that deserves to be punished, but it's a qualitatively different crime than treason, or intending to harm the United States and it doesn't deserve the same punishment," says Lauer.
"The penalty for this could be life imprisonment," Lauer noted. "But it is different than espionage to harm and it's far and distant from a conspiracy to commit treason. The spy Walker, for example, gave the Russians war-winning capability; [his information would have] enabled them to better strike at the United States. If you look at the government submissions against Pollard, you won't see anywhere the claim that Pollard gave the names of agents."
Lauer says that the arguments that Loftus presents are encouraging for him and are very much in line with what he and his partner have been claiming for the past three years. "He states that his information comes from good sources. If it is true, his article is astonishing and confirms the hypothesis which we are working on, that there are serious charges in the file that can now be proven to have no connection to Pollard," says Lauer. "Even if he is only fifty percent right, it is so outrageous that the government has not allowed us to see the file until now."
"We are talking about two lawyers," says Lauer. "My partner, Jacques Semmelman, is a former Assistant U.S. Attorney. Both of us have serious and unblemished reputations, but they are not allowing us to see the information. They are fighting tooth and nail and doing everything possible to make sure that we don't see the file."
This article does not intend to glorify or even condone Jonathan Pollard's crime. Anyone who works for an organization like the Navy undertakes to Consider only the interests of the United States. In the absence of the ability to keep these interests paramount, it is irresponsible to join such an organization. [*J4JP notes that Jonathan Pollard was aware that the US was blindsiding Israel, withholding vital information that Israel had a legal right to receive. He did everything he possibly could to have this information released to Israel through regular legal channels, taking his battle all the way up the chain of command as far as the Pentagon. And failed.]
If after joining the Navy, Pollard felt that he couldn't see how the U.S. was ignoring the needs of Israel, perhaps he should have resigned and tried fighting the situation from the outside. There are many ways to work on behalf of Israel, all of them fully legal and morally acceptable, like lobbying, petitioning, organizing grass roots support, pressuring politicians, etc. [*J4JP See note above. Jonathan's fears for Israel were not about "ignoring Israel's needs" but about the threat to her very existence posed by the build-up of nuclear, chemical and biological weapons in neighboring Arab States for use against her - information which the U.S. was illegally embargoing from Israel.] But it is wholly unfair to criticize and second-guess someone else, which is always easier in hindsight. [J4JP: Exactly!]
Having said that, it is time to acknowledge that questioning the fairness of Pollard's sentence is not contradictory to being a loyal U.S. citizen. Pollard is entitled to his day in court, and to a fair and honest hearing. It seems that Pollard was denied exactly that, and the government steamrolled him into a life sentence without due process. His sentence seems to have been based more on speculation and the fanning of rumors, led by Caspar Weinberger. Many Jewish officials were also reticent, presumably fearful that they would also be accused of not being loyal to the United States.
Which brings us to the fundamental question: what is Pollard really charged with? Did his crime justify lifetime imprisonment?
There seems to be reason enough to believe that the damage he caused is not as serious as it was claimed to be, and therefore his sentence is unduly harsh. Leaving a man to rot away in jail without justification is un-American, and fighting for him is the true American way.
Approximately twenty years have passed. In the interim, the world has changed. Communism collapsed, the once-formidable Soviet Union disintegrated, the Cold War is over, even Iraq is no more .
There is no doubt that the landscape has changed tremendously since then and a lot of material that was classified at the time can be unclassified by now. If all the files and incriminating evidence cannot be released, at least the material that could be released should be shown, and his lawyers should have access to it.
"In fact, Congressman Anthony Weiner also wrote a letter asking that the exact classification of each document be provided and when it will be declassified, but we have been stonewalled," Lauer told Hamodia.
It is quite natural to assume that a lot of the material that was previously classified has become obsolete and irrelevant in terms of its worth to the intelligence community. It also seems reasonable for upstanding American citizens to demand an end to the continued withholding of evidence, in order to ensure that justice is finally attained.
If one compares this article, written in the U.S. for an American Jewish readership with an article like the B'Sheva Special Investigation by Ofra Lax, written in Israel for an Israeli audience, it is impossible not to be taken by the obviously worried undertone in this article about possible charges of dual loyalty. The fear of being accused of dual loyalty continues to be prevalent amongst American Jews. That American Jews are still so obviously fearful of calling a spade a spade and crying "foul!" nearly two decades later when the injustice of the Pollard case is so blatant that it screams to the Heavens, speaks volumes.