10 injustices Pollard's release will never fix
Irwin Cotler - Times of Israel - August 9, 2015
The official announcement that Jonathan Pollard will be paroled as of Nov. 21, having served 30 years for transmitting classified American documents to the Israeli government, is a welcome - if much-belated - development. The fact of his prospective release, however, must not be allowed to overshadow the injustices of his life sentence - and 30-year prison term. Here's why:
1. The life sentence was unprecedented
Pollard's sentence of life imprisonment in 1985 was then - and remains today - unprecedented, excessive, grossly disproportionate and unfair, and amounts to a denial of equality before the law. No other American who has pleaded guilty to spying for a US ally has ever been sentenced to life. In such cases, the usual sentence is no more than eight years, with actual time served averaging two to four years or less.
2. The plea bargain was breached
Second, beyond being unjust in itself, the sentence breached the plea bargain according to which prosecutors had agreed not to seek life imprisonment in return for Pollard's guilty plea, his co-operation with authorities, and the waiving of his right to trial by jury. The plea also saved the government the problems of conducting a trial involving highly sensitive information, and at which Pollard might well have been acquitted of the more serious charges. Indeed, Judge Stephen F. Williams of the US Court of Appeals for the D.C. Circuit later described this breach as a "complete and gross miscarriage of justice."
3. Caspar Weinberger's secret declaration
Pollard's sentence was imposed as a result of the submission - after the plea bargain and again in violation of it - of a prejudicial, ex parte affidavit to the sentencing judge by then-Secretary of Defence Caspar Weinberger. Pollard never saw the Weinberger Declaration, nor was he able to challenge it. In his submission, Weinberger claimed that Pollard had compromised American national security, was guilty of "treason," and should never be released. However, in a 2002 interview, Weinberger admitted that, in retrospect, the Pollard matter was "comparatively minor." Nevertheless, the secret Weinberger Declaration has continued to underpin the falsity of the allegations against Pollard, and to undermine the validity of his case and defence, whether in seeking appellate review, or clemency or parole.
4. Weinberger hated Israel
Senior US officials who served with Weinberger have since accused him of harbouring an intense bias against Israel that unjustly impacted Pollard's punishment and sentence. For example, Robert C. "Bud" McFarlane, who served as US National Security Advisor in the Reagan administration, and worked closely with Secretary Weinberger, wrote in 2012 that "the affidavit filed by former Secretary of Defence Caspar Weinberger was surely inspired in large part by his deeply held animus toward the State of Israel." Dr. Lawrence J. Korb, who served as Assistant Secretary of Defence under Weinberger during the period that included Pollard's arrest, wrote in 2010 that "I can say with confidence that the severity of Pollard's sentence is the result of an almost visceral dislike of Israel on the part of my boss at the time, Secretary of Defence Casper Weinberger."
5. The charge was never treason...
Pollard has repeatedly and misleadingly been accused of treason - by the media, as well as by officials of the departments of Defence, State, and Justice - despite never having been charged with it, and often by reliance on the secret - and discredited - Weinberger declaration. Indeed, as recently as Pollard's parole hearing in July 2014, the prosecution falsely asserted - and the Parole Commission accepted without review - that Pollard's actions were "the greatest compromise of US security to that date."
6. ...and Eastern Europe intel was never breached
Sixth, false accusations have likewise been made by US government agencies that Pollard compromised intelligence operations in Eastern Europe and was consequently implicated in the deaths of American informants. Yet, these accusations were never part of his indictment, and no evidence for them has ever been adduced. In fact, the architect of these treasonable acts, and the source of the disinformation against Pollard, was none other than senior CIA official Aldrich Ames, who pleaded guilty to them in 1994.
7. The intel Pollard divulged was limited
The declassification in 2012 of a 1987 CIA damage assessment concerning Pollard confirms, in the words of Lawrence Korb, that "Pollard did not divulge the most sensitive US national security programs" and "provided intelligence only on the Soviet Union's activities in the Middle East." (The document also reveals that, whereas the sentencing judge overturned the plea agreement because Pollard had spoken to the media in supposed violation of the agreement's terms, the interview had in fact been authorized by the government.)
8. He had ineffective counsel
Pollard was deprived early on of his right to effective legal counsel, as his attorney at the time of sentencing neglected to file a notice of intent to appeal following the prejudicial sentencing hearing. Pollard was therefore precluded from appealing his life sentence.
9. Top officials support his release
Virtually everyone who held a senior government position and dealt with the ramifications of what Pollard did at the time supports his release. They include former Secretary of State George Shultz, FBI director and subsequent CIA director William Webster, and respective chairmen of the senate intelligence and house intelligence committees, David Durenberger and Lee Hamilton. Indeed, Sen. Durenberger has expressed his "surprise at the sentence given Jonathan Pollard compared to others" and argued that "the harshness of Pollard's sentence was uncalled-for."
10. A deeply flawed parole process
Finally, many of these injustices were compounded at the time of Pollard's unsuccessful 2014 parole application. In particular, secret evidence from the Weinberger affidavit was invoked by the prosecution and relied upon by the Parole Commission, despite the fact that neither Pollard's attorneys - who had security clearance - nor the members of the Commission themselves were permitted to view the document on security grounds. In the words of Pollard's lawyers, the 2014 hearing was "a disingenuous and deeply flawed parole process that reached an unsound conclusion based on discredited 28-year old statements buried in a secret file, and in complete disregard of compelling contrary evidence."
Ultimately, it must be remembered that Pollard fully honored the very plea agreement that the government violated; he fully cooperated with authorities; he has expressed remorse for his actions; he has been a model prisoner for 30 years; he is now aging and in deteriorating health; and most egregiously, he has repeatedly been falsely accused of a crime he did not commit - treason - and unjustly sentenced to life in prison for the crime he did commit.
As such, while Pollard's release on parole this fall will end his long-standing wrongful imprisonment, it will not in itself rectify the litany of wrongs to which he has been subjected. In the interest of justice, the injustice of Pollard's excessively unfair and severe treatment must be acknowledged and denounced.
Addendum: Justice4JP adds an 11th injustice greater than all the rest:
11. Parole is not freedom.
After serving 30 years in prison, for an offense that has a median sentence of 2 to 4 years, Jonathan Pollard is not being set free. He is being paroled. Parole means that he has the balance of a 45 year life sentence hanging over his head. Confined to USA for another 15 years on parole with very limiting conditions, Pollard is subject to re-arrest and re-imprisonment at any time for any reason for the next decade and a half. See JPost Editorial for details.
The author, Irwin Cotler, is a former minister of justice and attorney general of Canada, and emeritus professor of law at McGill University.
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