Justice4JP - November 24, 2009
To mark Jonathan Pollard's 25th year in American captivity - which is also his 25th year of abandonment and betrayal by the government of Israel - J4JP will be reviewing some of the best-written, most informative, and most interesting articles, essays and information written about the case over the last two and a half decades. This is article number 13 in the series, excerpted from a book published in 1997.
The excerpt was taken from the book "Crazy Rhythm And All That Jazz" by Leonard Garment, Esq. [Random House Publishers, 1997]. It clearly reveals how Jonathan Pollard got left holding the bag after Israel tried to finesse the Americans, claiming no knowledge of the operation, and insisting that other Israeli operatives were not involved. The Americans were infuriated by these blatant lies filed in a false affidavit. They took out their anger on Pollard, the most vulnerable and only convenient target. At the time, the Americans also issued an indictment against Aviam Sella (one of Jonathan's handlers) to show their displeasure at being lied to. To this day Sella cannot travel to the US lest he be arrested. Other than that restriction, the indictment has never been acted upon.
Recently Israel's State Comptroller, Judge Micha Lindenstrauss, issued an official report on the Pollard case - a blatant whitewash of the failure of successive governments of Israel to secure Jonathan Pollard's release. Lindenstrauss' report concluded that, in spite of a complete absence of any kind of documentation, every government of Israel has done everything it possibly can to secure Pollard's release. The excerpt from Leonard Garment's book below puts the lie to this absurd and insulting report. How so?
One of the most damning indictments against Israel to this very day is that the government has never attempted to set this matter straight with the Americans. The false affidavit filed by Aviam Sella more than 2 decades ago, on the instruction of the Israeli Government, stands on record. The issue of the documents, including the return of the master-list of documents - has also never been resolved and this remains a tremendous sore point with the Americans.
For more than 2 decades, Jonathan Pollard has repeatedly and ceaselessly implored the Government of Israel to resolve these outstanding issues with the Americans, once and for all. He has repeatedly outlined to Israeli officials a simple and easy way to resolve these issues. All of his repeated appeals have fallen on deaf ears. This unfinished business continues to exert strong negative influence on the fate of Jonathan Pollard.
The Leonard Garment excerpt follows below.
[Book excerpt: pages 369-374]
From the book by Leonard Garment - Random House Publishers/Time Books - 1997
In and among the cases and crises, events kept returning me to the issue of the Mideast. One day late in 1985 I was at lunch at the restaurant downstairs in my office building when my secretary called me to the phone, "A bunch of Israeli officials are here," she said, "and they want to see you right away."
Had I forgotten to return the rented car in Tel Aviv? I went upstairs and found what looked like half the Israeli foreign affairs apparatus pacing the firm's reception area. When they stopped circling I made out Meir Rosenne, Israel's ambassador to the United States; Eliakim Rubenstein, Rosenne's deputy chief of mission; former ambassador and cabinet minister without portfolio (i.e. chief troubleshooter) Moshe Arens; Hanan Bar-On, a senior official in the Israeli foreign ministry, and two strangers. One was small and dumpy - probably a bureaucrat. The other was natty and self-important - undoubtedly a lawyer.
In my office I learned that the subject of this visit was the spy Jonathan Pollard, whose case had erupted a couple of weeks before. What I knew of the story came from media accounts: Pollard, an employee of Naval Intelligence and a Jew, had been charged with supplying large amounts of classified information to Israel.
Arens started bluntly, "We need some off-the-record advice." The Jerusalem-based members of my group of visitors had just arrived in Washington and was headed for an emergency meeting with George Shultz. What guidance would I give? How bad was the US government atmosphere? The American Jewish Atmosphere? What tack should they take with Shultz?
Arens asserted that Pollard's operation had not been authorized by senior Israeli officials. I got a similar assurance form Ram Caspi, the man who looked like a lawyer and turned out to be one. I trusted Arens, but not Caspi, who was clearly the Jerusalem version of the Washington insider. I learned later that he was reputed to be Shimon Peres' closest political advisor; I could see that he was a tricky blusterer, wrong on most of the technical issues we discussed.
The other stranger, when I asked his name, said smilingly, "Call me Avraham." He turned out to be Avraham Shalom, chief of Shin Bet, Israel's hard-fisted domestic counterpart to the Mossad. Shalom was later relieved of duty for his role in the beating to death of two Palestinian terrorists in Israeli custody.
Since I had no facts, I gave general advice: The reaction was bad, especially among Jews. More facts had to be known. More detailed expressions of regret and acts of repair were needed. Most important, I said: no cover-up. Don't try to bamboozle Shultz. He'll find out, and he will be unforgiving.
But surely, I thought, experienced diplomats could figure this out without my help. So I made a practical offer. "Why don't I call Abe Sofaer and ask if he will see you before your meeting with Shultz? [Justice4JP Note: Sofaer played a key role in orchestrating Israel's abandonment of Jonathan Pollard.] That way you'll get guidance from somebody who knows something". Sofaer was a former federal judge whom I had recommended to Shultz for the post of legal adviser to the State Department; he had come to function as the Secretary's trusted private counsel.
Sofaer came right over. Should I stay? I asked. No, he said. And that, I thought was the end of that.
Soon a communiqué from the two countries suggested that all would be well.
Then in May 1986, the Justice Department disclosed that Pollard had revealed the name of his Israeli contact in the US - who had apparently played, contrary to Israeli representations, a major role in the affair. The Los Angeles Times quoted one American official: "The Israelis lied to us." The Israeli that Pollard had named was an Air Force Colonel, Aviam Sella. [Justice4JP Note: in fact, Pollard's CIA interrogators had Aviam Sella's name from another source. The interrogators verified this information by hooking Pollard up to a polygraph machine and all they said to him was, "Aviam Sella!" - the machine lit up.]
In a country filled with exceptional soldiers, Sella was particularly exceptional. He had planned and led the Israeli bombing raid that destroyed the Iraqi nuclear reactor at Osirak. He did the same in the air battle that took place after Syria emplaced surface to air missile sites in Lebanon. Sella was now scheduled to take command of a major air base in the Negev and was among the handful of officers thought to be on track for the eventual command of the Israeli Air Force, the spine of the country's defense.
Sella, it turned out, had been in the United States taking an advanced computer course at New York University when a mutual friend had introduced him to Pollard. Pollard said he wanted to supply classified information to Israel. Sella passed Pollard's proposal to Rafi Eitan, head of Israel's scientific intelligence unit, [LaKaM] who authorized the transfer of documents.
It later became clear why the Israelis had tried to keep Sella's name out of the investigation: US intelligence experts would have known that if an officer of his importance was involved in the operation, it would never have taken place without high-level approval.
The United States threatened to indict Sella but offered to await a formal proffer of evidence from him. The Israelis decided that Sella needed American counsel. His Israeli counsel, Chaim Zadok, a former Minister of Justice and also Sella's father-in-law, retained me. I flew to Tel Aviv.
Zadok met me at Ben-Gurion Airport and took me to his comfortable home in Tel Aviv for lunch. Aviam Sella was there; and so was his brother Menachem, a law partner of Zadok's, and a co-counsel in Sella's case. As I'd somehow suspected, Aviam was a Central Casting Sabra: dark, slender, and handsome, with the lines and shadows of intense combat concentration visibly etched under his tan. He seemed helpful, friendly, modest, crisply responsive, and more or less at ease, except for his acute annoyance that the tensions of the pending legal hassle had sent him back to smoking. We chatted about Israeli security, US politics, mutual friends and my earlier experiences in Israel. By the time we were finished, we were comfortable with each other.
After lunch, when we began to discuss the case, the atmosphere stiffened perceptibly. Zadok conceded Pollard's initial contacts with Sella and Sella's transmitting Pollard's offer to Eitan, but insisted that all of Sella's other contacts with Pollard were casual, social and coincidental. The legal task, Zadok thought, was to work this version of events into a formal proffer to the Justice Department, one convincing enough to persuade Justice to drop the probe of Sella or grant him immunity.
At the Tel Aviv Hilton, I was summoned to a large meeting - composed mostly of security officials and presided over by one of Peres' political advisers- to discuss the case. They spoke Hebrew. I pointed out that I did not speak Hebrew. They continued speaking Hebrew. I left. Back in my room, I read a John Le Carre Novel, A Perfect Spy. I realized that I had problems with my own spy dilemma. The Justice Department's version of events was detailed, logical, and accompanied by corroboration. The conflicts between it and the Zadok version were stark. I could play it safe and assume a messenger's role. I could wade in and learn what had happened; but then if I concealed what I knew, I risked committing an obstruction of justice. So I settled on a course that made sense to me as an American, a friend of Israel, and - as the reader knows by now - a fairly nervous person. I had worked closely with most of the persons who would be involved in disposing of the case - Meese; Shultz, the State Department Legal adviser, Abraham Sofaer [Justice4JP: Not one to get hung up on matters of principle or integrity, Sofaer, years later, was disciplined by the Legal Profession and threatened with being disbarred for conflict of interest when he surreptitiously took on Libya as a client in a terrorist case, in spite of his involvement in the case of the US govt. against Libya!]; the US Ambassador to Israel, Tom Pickering, and almost all of the Israeli political leadership. So I would learn what I could, then try to use the political process, rather than the legal means, to achieve a comprehensive solution. Zadok agreed.
The next afternoon, Aviam and Menachem Sella spent most of the day in my room. Later halfway through dinner, Menachem excused himself to go home saying, "He's all yours." This was the first time I had been left alone with Sella, who then told me most of what actually happened. After dinner I returned to my room and wrote out, in red ink on yellow paper, everything I remembered of Aviam's account.
I pursued my political grail. Each day I conferred with Abe Sofaer by phone and with Ambassador Pickering in person. Sofaer and Pickering told me what they thought was needed to work out a political settlement. One potential formula would be an admission, even an oblique one, without naming names, that there had been high-level Israeli knowledge of the goings-on.
I spent a couple of hours with Defense Minister Rabin in his Tel Aviv apartment. We had coffee and nostalgia; then I delivered my spiel. Rabin, his voice a familiar, hoarsely impatient grumble, acknowledged that the conflicting versions were a problem. Then he offered me one of his shrugs. He knew nothing of any high-level Israeli authorization to Sella to deal with Pollard. How about some more coffee? The same scene, with the same dialogue, took place at Moshe Arens home. More coffee.
At least with Prime Minister Peres, late that night, I got some food. Mrs. Peres in a housecoat, greeted me at the door and put out a huge cake, coffee and brandy before she left the room. Peres followed my narration with professional attentiveness but could not help. Halfway through the brandy, he began a monologue comparing Russian, Israeli, and American literature; the name Isaac Babel stands out in my alcohol-blurred memory. As for my proposed settlement, he thought it was not realistic, but there was no harm in my trying. I said I would send him a memo expanding on the idea and a draft statement he might issue.
I didn't try to see General Ariel Sharon, which was a big mistake: Rafi Eitan was Sharon's protégé.
When I got home to Washington, I conferred with Attorney General Meese, then sent Peres the draft statement I had promised. The note dropped into a deep well, and I never even heard a splash.
In June 1986, Zadok and company arrived in Washington with a new proffer for Justice and State. I met with Zadok in the bar of the Mayflower Hotel to take a look at the current model. It was identical to the draft I had read and rejected in Israel. I protested once more, but Zadok remained adamant; he was almost certainly bound by official instructions. "Enough," he said. "We'll be in touch with you over the weekend."
The meeting with State and Justice would take place on Monday and by then we had to come up with an explanation for the inexplicable. Working alone, I modified Zadok's proffer. Little was untouched.
We finally had our meeting on Sunday at my home. The Israeli contingent that grimly trooped in consisted mostly of friends: Ambassador Rosenne, Elie Rubenstein, Hanoch Bar-On. Zadok was there and Ram Caspi may also have been; if he was, he stayed in the background this time. I handed around my suggested draft of the proffer. I was overruled; the Zadok draft would stand. I said I would not present it: It was demonstrably false, and the US prosecutors could prove it.
The argument grew more heated. How, said the Israelis, did I know the "facts" in my version of the proffer? What made me sure? I took out the handwritten memorandum of my dinner conversation with Sella in Tel Aviv and read it aloud. They reacted memorably:
THEM: Give us that paper.
ME: You must be kidding.
THEM: You have no right to it.
ME: These are my personal notes.
Zadok asked me to leave the room for a few minutes. When he brought me back in they announced a solution:
THEM: You are discharged as Aviam's counsel. Now give us the paper.
ME: I have a lawyer's lien on it. I also have photocopies in my office. If you don't stop this, you're getting out of here.
After a while, peace was restored. Zadok said he would go to work on a new draft. Suzi brought in the second meal of the day for the group. At the beginning of the meeting they all stopped talking when Suzi came in. They knew she was a journalist. But stereotypes die hard; after all, she was wearing an apron. By the end of the day, she was typing and fiddling with Zadok's rewrite in our study upstairs.
The "new" draft, though, was just a transparent gloss on the old one. I arranged to postpone the proffer meeting with Justice and State, saying that we just weren't ready. At a pro forma meeting the Israelis said they had to go back to Israel to consult on specific issues of fact and to get wider authority to proffer security sensitive details. We then celebrated the absence of catastrophe with a lavish lunch. The Israelis, manifestly relieved, went home.
In due course, Zadok and I made up. But the settlement never materialized. I withdrew from the case, waving any fees. Actually "withdrew" is not an accurate term; throughout the proceedings, I realized, I had never functioned as Sella's attorney. I was hired to be a prop in a political contest entirely directed by political players. A proffer was eventually made. Sella was indicted. Under US pressure, Israel canceled his base command. [Justice4JP: Sella's promotion to commander of Tel Nof Air Base was announced just prior to Jonathan Pollard's sentencing. This enraged the American prosecutors who retaliated against Pollard.] He remained in Israel, his indictment is still outstanding.
There was a time when I worked for Pollard's release, there is little doubt that his life sentence was excessive and obtained by dubious prosecutorial tactics....
THE AUTHOR, LEONARD GARMENT, a noted attorney and an accomplished musician (jazz saxophonist), was acting Special Counsel to U.S. President Richard Nixon for the last two years of his presidency.