"I have a strong sense we've already won," I told Jonathan when sitting with him in prison a day before his hearing in US Appeals Court. Jonathan and I discussed it and came to the conclusion that my inner sense of victory was really a message from Above to reassure us that whatever would happen in the earthly court, Heaven will be the true judge.
Knowing how the American courts have failed Jonathan for the last 20 years, I went off to Washington hoping that this time things might be different. They were.
The last time we were in court (09/02/03) there was a semblance of neutrality. This time even the appearance of impartiality was absent. If I had not known better, I would have been certain that the hearing was taking place in an Israeli court, where mockery, arrogance, derision, sarcasm and open contempt are standard tools of the trade for judges in the High Court.
What stands out in my mind is the performance of Jonathan's pro bono attorneys, Eliot Lauer and Jacques Semmelman. Jonathan and I had expected that they would - as always - be superb in their performance, but they outshone our best expectations. In spite of what can only be viewed as open contempt from the bench, Lauer and Semmelman never missed a beat, never lost focus, and rose to the challenge with true professionalism and grace.
Lauer and Semmelman were given about 10 minutes a piece to present oral arguments for two motions. They chose to save 2 minutes a piece for rebuttal. Lauer presented the motion asking for access to Jonathan's own sentencing file, which the Government allows opponents of the case to see, but blocks from his security-cleared attorneys. Semmelman presented the motion asking for an evidentiary hearing in support of Jonathan's motion for resentencing.
In the 8 minutes that remained Lauer and Semmelman faced a dismissive bench that acted more like the prosecution than impartial judges. Excruciating care was taken by the bench to dismiss any attempt by the attorneys to actually address the merits of the case. In the process, the attorneys might very well have been knocked off kilter by the bench rolling its eyes heavenward and using a derisive and mocking tone. But they were not.
No matter how many times they were provoked, or their responses mocked, or treated with contempt, Lauer and Semmelman responded professionally with grace and outstanding litigation skill. Their performance was indicative of the way the best professionals behave when they know that they have the truth and sincerely want to impart it. Their demeanor and their performance was Kiddush HaShem of the highest order.
If the judges had any awareness that the case they were discussing actually concerned a human being, they certainly gave no indication of it. Any doubt about the attitude of the court was removed by the senior judge's parting shot. He indicated that since he expects there to be "disarray" in the courtroom following the conclusion of this hearing, he was taking the unusual step of declaring a brief recess to clear the court of those attending the Pollard hearing. The judge's suggestion that Pollard attendees would act out was gratuitous and insulting. A final kick at the Pollard can.
Jonathan and I are proud of the skillful and professional performance of Lauer and Semmelman, and once again deeply disappointed in a court procedure that has all the earmarks of a mockery of justice. It makes us wonder how President Bush can continue to point to America as a beacon of democracy and justice for all.
Worse, it leaves us haunted by the words of Dennis Ross, former American Special Envoy to the Middle East. In his new book, "The Missing Peace" Ross makes it clear that Jonathan's sentence is disproportionate and that he deserves to be set free unconditionally. Nevertheless, states Ross, Jonathan is far too valuable to the US (as a bargaining chip to elicit unilateral concessions from Israel) to ever release him as a simple matter of justice.
How long will justice for Jonathan Pollard continue to take a back seat to politics?