Editorial: Shapiro and Pollard
New US Ambassador Shapiro passes the buck and calls Pollard's fate "an issue for the American legal system."
The Jerusalem Post - August 11, 2011
The first two questions that new US Ambassador Daniel Shapiro was asked by Channel 2 diplomatic correspondent Udi Segal on Israel's highest-rated news show last week were both about the fate of the Israeli agent Jonathan Pollard, who has served over 25 years in jail for espionage.
Despite the importance of the issue to Israelis, it would have been understandable had Shapiro diplomatically declined to address such a sensitive matter. But that's not what he did.
In bypassing the questions, Shapiro passed the buck and called Pollard's fate "an issue for the American legal system."
If only it were so.
Pollard's case is not before the courts. Even though the merits of his case have never been heard in a court of law, all his legal remedies have been exhausted.
The US Constitution grants the president nearly unlimited powers of clemency, specifically for cases like this, where the justice system cannot or will not correct itself.
While the president is free to consult with the justice system or the White House counsel, who receives recommendations from the US pardon attorney, he is under no obligation to do so.
The Office of the Pardon Attorney in the Justice Department was created to assist the president with the sheer volume of work done in investigating and making recommendations for clemency, but the president is neither bound by nor limited by the office's work. He does not require the pardon attorney's or the White House counsel's recommendations, and he does not have to follow any prescribed routine or investigation.
Bill Clinton's tenure is a case study in the unlimited power to grant clemency. Some of the more extreme examples include the pardons Clinton gave international commodities trader and indicted tax evader Marc Rich and to 16 members of FALN, a Puerto Rican nationalist group responsible for 130 bombings in the US in the late 1970s and early 1980s.
Given that the US justice system has not given Pollard a proper forum and no more legal remedies exist, his attorneys filed an appeal for clemency with President Barack Obama in October 2010. Although the formal filing by the attorneys was done via the pardon attorney, it was addressed to the only person who can grant clemency to a prisoner: Obama himself.
In other words, Pollard's case is now formally awaiting the decision of Obama, and no one else. His case is officially before the president and has been since October.
When Prime Minister Binyamin Netanyahu and President Shimon Peres made their official requests for Pollard's release, they made it directly to the president and not to the pardon attorney or the White House counsel.
Netanyahu and Peres await a response from Obama, not from the American legal system.
Similarly, all of the high-ranking American officials from former CIA director James Woolsey, to former secretaries of state George Schultz and Henry Kissinger, to former US attorney-general Michael Mukasey have appealed for clemency for Pollard in the form of commutation of his sentence to time served directly to the president, not the Justice Department.
To sum things up: Jonathan's fate is squarely in the hands of Obama. The legal system is no longer relevant, so anyone who points to it as being responsible for responding to requests for clemency for Pollard is misleading Israelis.
Normally, ambassadors can be excused for missteps because they are functionaries who aren't particularly close to decision-makers. This may have been the case with Shapiro's predecessor, James Cunningham, who blamed the decision not to permit Pollard to attend his father's funeral on the American justice system, even though US officials said Cunningham had been consulted on the matter.
This may also be true regarding Cunningham's predecessor, Richard Jones, who had to apologize for telling an audience at Bar-Ilan University in May 2007: "The fact that he wasn't executed is the mercy that Jonathan Pollard will receive."
But Shapiro is different. His status as the president's most trusted adviser on the Middle East predates Obama's election. As an expert on US-Israel relations, he should know better.
He started off on the wrong foot.
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