Yated Update: Still Working To Free Jonathan Pollard
Debbie Maimon - Yated Ne'eman [front page] - March 30, 2005
"Knowing how the American courts have failed Jonathan Pollard for the last 20 years, I went off to Washington hoping that this time things might be different. They were."
In a report on what took place at that long-awaited March 15 hearing in the U.S. Court of Appeals, Mrs. Esther Pollard, wife of Jonathan Pollard who is serving a life sentence for passing classified information to Israel, told of her deep disappointment.
"The last time we were in court - in September 2003 - there was a semblance of neutrality. This time even the appearance of impartiality was absent," she said.
She cited the mockery, sarcasm and open contempt displayed by one of the three judges on the bench and his dismissive attitude toward Pollard's attorneys, Eliot Lauer and Jacques Semmelman.
The two lawyers who took on the Pollard case pro bono almost five years ago are convinced that justice for Pollard requires the vacating of his life sentence. Lauer has said 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 contends 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 to put him behind bars for life 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."
To make matters worse, Pollard's attorney, 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 without appealing, has unconscionably breached his client's constitutional right to effective counsel.
"I was appalled at the quality of the legal representation Jonathan received," Semmelman said in an interview, explaining what led him to take on the case. "It became apparent to us that Jonathan Pollard was sentenced to life not because of what he did, but because of what was done to him."
Judge Scorns Pollard Plea
Judge Sentelle dismissed the argument that Pollard's constitutional rights to effective counsel were violated. He praised Hibey as an "outstanding" attorney and declared that labeling his handling of the Pollard case as "ineffective" would cast aspersions on "ninety nine per cent of all lawyers."
"The problem with Mr. Pollard is that he thinks he is unique," Judge David Sentelle said. "He is not unique." Ignoring the merits of the Pollard case as if they were entirely irrelevant, Sentelle said that re-opening the case would "open the floodgates" for scores of other inmates serving life sentences.
Pollard's life sentence, in fact, is not only "unique" but bizarre, when compared to the average prison sentence meted out to individuals convicted of espionage against the United States. This comparison holds true even in cases where the spying was intended to harm the United States-a charge never made in the Pollard case.
Below are some of the unique features of the Pollard case which Judge Sentelle would like to dismiss, summed up in a WorldNet Daily article:
Sentelle's hostile questioning and cynical posturing dominated the March 15 hearing. He insisted that the court "does not have the authority" to allow Pollard's attorneys access to a secret file that was used to sentence him to life imprisonment twenty years ago.
- Jonathan Pollard is the only person in the history of the United States to receive a life sentence for spying for an ally.
- Pollard is in his 20th year of a life sentence for an offense which carries a median sentence of 2 to 4 years.
- Pollard received his life sentence as the result of a plea bargain which he honored and the Government violated.
- Pollard was deprived of his legal right to appeal his life sentence, because of utterly inadequate counsel. His first attorney failed to file a simple "notice of intent" to appeal within the allotted time.
Pollard's is the only espionage case in which then-Secretary of Defense Casper Weinberger personally intervened to influence the court.
- Weinberger delivered a memorandum to the sentencing judgesomething almost unprecedented falsely accusing Jonathan of treason" a crime he was never accused of nor indicted for - and called for the maximum sentence of life.
- Since Pollard was sentenced in 1987, neither he nor his security-cleared attorneys have ever been permitted to access the Weinberger document to challenge its contents in a court of law.
The Secret File That Put Him Behind Bars
Pollard's attorneys, who have top-security clearance, have long sought access to this file, believing it contains lies and misinformation that if exposed, would clear the way for Pollard's release.
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 that "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, 2000)
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?"
Since then, Congressman Anthony Wiener, 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.
Weiner wrote: "There has been a shameful public campaign to exaggerate the crimes he committed. Officials in the intelligence community who have no direct knowledge of the case have spread blatantly false information about Pollard's actions. I have seen the secret documents and am bound by law not to describe the material or even characterize it.
"What I can say is, when you read or see someone explaining that the crime was much worse than the public record indicated, remember the adage - those who know aren't talking and those that are talking don't know."
Rudolph Giuliani, who was the third-highest ranking official in the Justice Department under Ronald Reagan, and who handled thousands of pardon requests, was one of the very few who saw Pollard's documents.
On August 14, 1999, speaking at New York City Hall, when asked about Pollard's case, he said, "I think that given comparative sentences, his sentence - this I happen to know because I have seen the documents - his sentence is way beyond the sentence served by other people that have been convicted of the same offense."
His Real Crime
Pollard, while working a U.S. Navy intelligence analyst, passed classified material to Israel between June 1984 and 1985. He provided information he thought Israel, as an ally, was entitled to-which in fact, it was.
Pollard's information warned Israel of deadly threats to its existence: the buildup of unconventional weapons of war by Iraq, Egypt, Syria and other Arab states for use against Israel.
He warned Israel about Saddam Hussein who, covertly aided by the United States at the time, had secretly amassed an arsenal of chemical and biological weapons.
Pollard was well aware that according to a 1983 Memorandum of Understanding between the United States and Israel, Israel was supposed to have access to U.S. intelligence information vital to Israel's security.
But due to an unofficial blackout on intelligence information to Israel imposed by pro-Arab American officials in the State Department, information about Saddam Hussein and WMD in Iraq and neighboring Arab States was being deliberately withheld from Israel.
The U.S. government claimed that Pollard damaged U.S. relations with its Arab allies and especially, with the bombing of Iraq's nuclear reactor at Osirak, "altered the balance of power" in the Middle East.
At bottom, however, the real grievance was that by disclosing urgently needed intelligence information to Israel, Pollard had upset the "quid pro quo" strategy whereby the United States could manipulate Israel by using "bargaining chips."
In return for secret information Israel badly needed, the White House was able to force concessions from Israel in negotiations with the Palestinians.
Pollard was never indicted for harming the United States. He was never indicted for compromising codes, agents and war plans. He was never charged with treason. As his lawyer, Eliot Lauer explains, "He was only charged with a conspiracy to commit espionage, but not even with an intent to harm the United States."
The Pollard case has become an aberrant symbol of injustice in a country that is a beacon of freedom and civil liberty for the rest of the world. Government lies and judicial collusion are keeping Jonathan Pollard in prison, many say. It is time for this travesty to end.
Pollard's ultimate fate in court will tell us whether or not the nation which is devoted to bringing freedom to other parts of the world is also capable of freeing itself.