Pressure Builds for Pollard's Release
*See Justice4JP Comment below.
Debbie Maimon - Yated Ne'eman - December 11, 2003
As Jonathan Pollard, 49, begins his 19th year of incarceration, the poignancy of his plight following the failure of his latest bid to have his life sentence vacated, has ramped up efforts on both sides of the ocean to secure his release*.
Grassroots activism on his behalf in recent months has spiked in Israel, while in America, a wave of sympathy after his latest setback in court has returned the case to the spotlight.
Troubling reports regarding cruel and abusive treatment of Pollard prior to his appearance in a Washington, D.C. court have sparked an outcry from Pollard supporters, and focused public attention on what is increasingly seen as an ugly stain on the American judicial process.
At the prestigious Agudath Israel Convention two weeks ago, Agudath's Executive Vice President Rabbi Shmuel Bloom spoke about the importance of pidyon shvuyim, redeeming the imprisoned, and asked for prayers on behalf of Yehonatan ben Malka.
Rabbi Bloom's words echoed a strongly worded message signed by 40 American roshei yeshivos from across the spectrum of the Torah community, in a full-page ad published first published in Yated, October 15, 1993, and re-issued several times since then.
That open letter to the public issued a call to action, stating that it is "incumbent upon every Jew to make efforts to free Jonathan Pollard from his imprisonment. Those who can should write letters to the government, and whoever can intercede on his behalf should do so."
In Israel, government members from opposite sides of the political spectrum, including Labor, Likud and NRP, demonstrated unprecedented solidarity by joining together last week to call on the Israeli government to take action to bring about Pollard's freedom.
The group slammed past Israeli governments for doing nothing on his behalf and called on the current leadership to break that conspiracy of silence. Castigating Pollard's treatment in the United States as "vindictive and harsh in the extreme," they entreated the U.S. government "to pardon him on a humanitarian basis, and to send him home to Israel."
"When Jonathan was held in Washington recently, he was cut off from all contact with his wife and friends on the outside, kept in inhumane conditions, and treated very harshly," a spokesman for the group told the Knesset. "Why? For what reason? The man is serving his time, at least let him appeal his American sentence, at least let him have his day in court!"
"The United States has pressed its case relentlessly against Jonathan Pollardbecause [he] provided Israel with vital security information-which did not do any damage to American security. But America the Great was insulted, and we can understand that, but what is the price of the insult, a life sentence?"
Hogan Hid Behind Technicalities
In an interview with Yated, Pollard's attorney, Mr. Eliot Lauer, called the decision of District Court Judge Hogan to refuse Pollard's request for re-sentencing "surprising and unfortunate," explaining that the government had refused to address the merits of the case. Instead, the government hid behind technicalities, saying that Pollard had waited too long to protest the injustice of his case on constitutional grounds.
Attorneys Eliot Lauer and Jacques Semmelman, who have taken the case pro bono, are appealing that decision to the District of Columbia's appeals court, a process that could take several months. Lauer, who says he is optimistic, believes that a close look at the merits of the case would tip the scales easily in Jonathan Pollard's favor.
"The Pollard case is like an egg with a crack in it. Expose the crack and apply some pressure and the whole shell will crumble," he said.
Pollard is arguing that he was stripped of his rights to due process of the law, after the government broke its plea agreement with him. In that agreement he was promised that in return for his cooperation in debriefings, the government would not seek a life sentence for turning secret documents over to Israel.
He ended up with a life sentence, nonetheless, explained Lauer, because after reaching the plea agreement with Pollard, "the government engaged in an orchestrated campaign to achieve a life sentence by using every means available."
Catastrophic Breach Of Duty
Unfortunately, Pollard's lawyer at the time, Richard Hibey, did not challenge the life sentence by asking for an evidentiary hearing that would require the government to prove its charges. Hibey also dropped the ball in another way, with even more devastating consequences: He never filed a notice of appeal, thus causing Pollard to forfeit forever all opportunity to do so.
"Filing an appeal within the allotted time is as elementary as administering anesthesia before surgery," Lauer explained. Just as a doctor who failed to do this procedure would be guilty of the grossest malpractice, an attorney who allows the time limit to elapse in such a case without appealing, has unconscionably breached his client's constitutional right to effective counsel.
Even though almost thirteen years elapsed before Hibey's lapse of duty was challenged, that is no reason for justice not to be applied-in this case throwing out the old sentence-now that the facts are in the open, Lauer said.
In addition to refusing to address Pollard's arguments on its own merits, Hogan also turned down a request by Pollard's attorneys to gain access to the infamous secret memo by then-Secretary of Defense Caspar Weinberger that it is widely believed to have sealed Pollard's fate.
It was on the basis of that damning memo-whose unclassified portion falsely accused Pollard of treason without substantiating the charges-that he was sentenced to life imprisonment.
In his decision, Judge Hogan told Pollard's attorneys that he was refusing them access to the secret memo because they did not "need to know" its contents. But a newly discovered fact conveyed in a letter from a Justice Department official has exposed the absurdity of that argument and greatly strengthened Pollard's case, Lauer said.
The letter shows that in the past seven years, 25 people from the Justice Department have been granted access to the same records that the government is refusing to show to Pollard's attorneys, who have top security clearance.
"At the same time the government is arguing that the file is not relevant, their own attorneys are being afforded access to that very file in order to prepare a case against clemency for Pollard," Lauer told Yated.
"The inequity of the situation is beyond dispute," he said, adding that the disparity in access is so clearcut, he is confident the decision will be overturned on appeal.
Ashcroft Holds The Key
Pollard's attorney stressed the importance of "all men and women of conscience" who are bothered by the unfairness of the government's decision, to contact their congressmen and senators and ask them to "exert moral persuasion" on US. Secretary General John Ashcroft, who holds the key to the memo.
As the Justice Department's highest official, Ashcroft has the power to issue instructions to grant Pollard's counsel access to the incriminating documents.
Three years ago, NY Senator Charles Schumer became one of the first publicly elected individuals to gain access to the secret evidence. In an interview with the Jerusalem Post, Schumer stated categorically, "there is nothing in that file to justify a life sentence." (Dr. Aaron Lerner, "Finally, the Truth About the Pollard Affair," Jerusalem Post, Jun.20, 00)
Since then, Congressman Anthony Weiner, NY.-D, has seen the file and has echoed Schumer's declaration that the file contains nothing that would warrant the harsh sentence imposed on Pollard.
Schumer's findings fueled a rash of editorials in leading newspapers, calling for the release of the Weinberger memo. A Washington Post article by columnist Milton Viorst said : "I have no sympathy for Pollard... [but] surely no American should have to spend a life in prison on the basis of secret proceedings.... Why not release the Weinberger memo now?" ("A Second Look at the Pollard Case," June 4, 1995)
And in Jan., 1999, another editorial in the Washington Post noted: "The uncomfortable fact remains that [Pollard] has not been able to test in court the official assertions that put him behind bars...in secret proceedings of which he was not a part. Cannot a way be found to pierce some of the secrecy and provide the public with a better means of judging whether fairness was achieved in this case?"
A Tale Of Torment
In a recent letter to Israeli Foreign Minister Silvan Shalom, Pollard reminded the Israeli official that the abusive treatment he suffered in Arlington Prison in September was not his first-or worst-experience of mistreatment in an American prison. He reminded Shalom of what he had told him years earlier about the shocking and brutal treatment he endured in his early years in prison as part of his life sentence.
"I was given "shock treatment" with an electric cattle prod and left quivering in convulsions, unable to speak or move for hours afterwards. I was many times held incommunicado for months on end, deprived of my clothes and glasses, and repeatedly chained to a shower stall and forced to endure freezing cold showers for hours on end.
"You and all of your minister friends were deeply shocked at how I was being treated in prison and vowed that my incarceration would not continue. That was 5 years ago, Silvan. Where have you been since then?
Apparently, Jonathan Pollard has learned not to put his trust in men.
When Judge Hogan finally issued his decision to reject Pollard's appeal for re-sentencing, some of Pollard's friends were afraid of the demoralizing effect the news would have on him, Rabbi Pesach Lerner, executive vice president of the National Council of Young Israel, reported.
"So when he called that day, we braced ourselves for the job of picking up the pieces. But when we asked him how he was and he said, 'I'm okay. I'm worried about all of you.'
"Jonathan told us he knew that we were counting on a breakthrough with this hearing, but that he also knew from the signals he was getting all along that it was futile."
" 'I knew [Judge] Hogan wasn't going to help me,' " he said. 'Only G-d can get me out of prison. Getting a slap in the face from this judge just drove the lesson home stronger. So if we've learned that lesson, maybe G-d will say, 'Now that you really, truly know it's up to Me alone, it's time to go free.'"
The above article is well-written and well-researched, and the information it provides is invaluable. It does, however, have one weakness, which may have more to do with editorial political correctness than with any misperception on the part of the author. That is, the impression it conveys about increased efforts and concern for Jonathan Pollard simply does not jibe with reality.
Unfortunately, the optimism the article reflects and the reliance it places on token signs of renewed interest and initiative, falsely reassures the public, while letting Israel and the American Jewish leaders off the hook. Meanwhile Jonathan continues to languish in prison with no end in sight.
Jonathan has already served many more times longer in prison than anyone ever convicted of a similar offense in the US - indeed far more time than even those who spied for enemy states who committed far more serious crimes. He is not in good health and with every additional day in prison, his life hangs in the balance.
J4JP cautions against waiting on the American courts or counting on legal appeals. The system cannot be relied upon to do what the Almighty expects us to do - act intensively with all of the means at our disposal to secure justice for one of our own. Appeals may or may not be successful in a justice system which has, for 18 years, consistently subverted justice for Jonathan Pollard. More to the point, the appeals process is very lengthy and will take many more years - time that Jonathan just doesn't have.
While it is constructive and appropriate that Agudath Yisrael has - after 18 years - finally issued a call to the public to pray for Jonathan, this is hardly sufficient or impressive. The Agudah is a vigorous organization with its own lobby office in Washington. Those initiatives that the Agudah regards as important receive full attention in Washington via the lobby office - more than just a call to prayer. The fact that the Agudah lobby office has consistently ignored the Pollard issue and continues to ignore it, in spite of the organization's declared support for Jonathan, speaks volumes.
As for the 1993 full page ad cited above, which was signed by all the Gedolim (great rabbis) calling all Jews to action for Jonathan, the Agudah has NEVER reprinted the ad as implied, and has never put the full weight of the organization behind it. The only organization that has repeatedly reprinted the ad (in its own internal publication which has a limited audience) is the National Council of Young Israel.
It should also be noted that ever since Jonathan's legal cases were summarily dismissed in November 2003, Israel and the American Jewish Leaders have NOT taken a new position, have NOT implemented any new initiatives and have NOT demonstrated any augmentation of their pitiful level of support and advocacy for Jonathan whatsoever.
In fact, not a single Jewish leader or organization has even protested the brutal treatment that Jonathan was recently subjected to in Washington. Since then no Jewish official/leader/organization has even bothered to contact Jonathan or his wife to find out how Jonathan is and what their needs are.
Statements made by elected officials many years ago as quoted in the article above are important in that they underscore the injustice that Jonathan has been subjected to. Nevertheless, it should be clear that in all the years since they were issued there has been no initiative by any elected official to act on them.
Even the most minimal initiative has not been taken by any of the Jewish leaders, regardless of their level of religious observance. For example, at the opposite end of the religious spectrum, the Conference of Presidents promised months ago to issue a new public statement on the case expressing its concern for the lack of due process that Jonathan has been subjected to. But now, as in the past, the Conference has not kept its word.
If prayers were all that the Jewish People were capable of, perhaps that is all that the Almighty would expect of us. However, when we as a People are able to pour time money and effort into secular goals such as school vouchers, presidential elections and other political ends, the Almighty expects no less of us in fulfilling the holy mitzvah of pidyan shvuyim, the redemption of a captive.
In the waning months of the year 2000, the Government of Israel and American Jewish leaders threw themselves into an intensive campaign to secure presidential clemency for Marc Rich, a billionaire fugitive from the law, who had never spent a day in prison. They were able to do in a matter of weeks for Rich, everything that they have never done for Jonathan Pollard in the nearly 2 decades he has been in prison.
If Jewish leaders were to apply themselves to securing the release of Jonathan Pollard with the same zeal and competence which they have amply demonstrated in the case of Rich, and as they demonstrate in fundraising and in pursuing so many other vested interests, Jonathan Pollard could be home in Israel, this year, in time to light Chanukah candles.