Rosh HaShana 5762 - Why is Jonathan Pollard Still in Prison?
Larry Dub, Esq. - Viewpoint Magazine (NCYI) - September 2001
As the year 5761 is winding down and Jews around the world are preparing to usher in Rosh HaShana 5762, a nagging question resurfaces in our collective consciousness: why is Jonathan Pollard still in prison?
Jonathan Pollard did not spy against the United States. He was never indicted for intent to harm the United States nor for treason, though he has been falsely accused of both. Jonathan Pollard warned Israel that Saddam Hussein was planning to scorch the Jewish State. This vital information was being withheld from Israel by the U.S., Israel's closest ally. Thanks to Jonathan, Israel was ready with gas masks and sealed rooms when Iraq attacked her during the Gulf War.
In warning Israel, Jonathan broke the law. He deserved to be punished. But the punishment has to fit the crime. The usual sentence for spying for an ally is 2-4 years. Jonathan is about to complete his 16th year of a life sentence, with virtually no possibility of parole. He received his life sentence without benefit of trial, as the result of a plea bargain which the U.S. violated.
Jonathan received a sentence far harsher than most of those who have spied for an enemy nation. For example, 20th century spies Michael Walker, Clayton Lonetree, and Richard Miller who spied for the Soviet Union and did inestimable damage to US national security are all free men today. Only Jonathan Pollard, a Jew who spied for the Jewish State remains in prison with no end in sight.
The case of Michael Schwartz highlights the disparity in sentencing between Jew and non-Jew and between Israel and other U.S. allies. Schwartz, a non Jew who spied for Saudi Arabia, was arrested, confessed and indicted. But before he ever stood trial a quick deal was worked out in order to appease America's Saudi ally. His punishment? Loss of his Navy job, rank and pension. Whereas Jonathan Pollard got life for his activities on behalf of a U.S. ally, Schwartz did not get single day in prison.
An article by J.J. Goldberg, the Editor of the (NY) Forward, ("Crime and Punishment" - The LA Jewish Journal - April 3, 1998) cites high level Washington sources indicating that the Joint Chiefs of Staff acted through Caspar Weinberger to secure a life sentence for Jonathan Pollard that has nothing to do with Jonathan's guilt or innocence and everything to do with sending a message to intimidate Israel and the American Jewish community:
"High-ranking sources say that it was the Joint Chiefs of Staff who urged the judge, through then-Defense Secretary Caspar Weinberger, to ignore the plea agreement and throw the book at Pollard.... They wanted to send a message ...Pollard is still in jail, these sources say, not because his crime merits his lengthy sentence -- it doesn't -- but because too many American Jews still haven't gotten the message."
Perhaps this explains why both the American Justice system and the clemency process have been repeatedly subverted in the Pollard case and why in spite of the implausibility of the sustained, unsubstantiated accusations against him, Jonathan remains in prison nearly 16 years later.
What can be done to bring resolution to a case that seems impervious to due process and truth? In 1998 a political solution was sought and found - but ultimately never implemented. That solution remains viable to this day. But few people know about it.
Most Americans and Israelis know that on the heels of the Pollard crisis at the Wye River Summit in 1998, former President Clinton promised former Prime Minister Netanyahu that he would review the Pollard issue. What very few people know is that President Clinton had in fact committed the United States to freeing Jonathan Pollard both prior to the Wye summit and then again as an integral part of the Wye accords. The U.S. commitment still stands to this day and remains to be executed. Israel has fulfilled its part of the deal. If the US-Israel special relationship is to remain credible then the U.S. must live up to its end of the agreement.
In order to understand why America still owes Jonathan Pollard to Israel, it is necessary to understand the sequence of events, before, during and after the Wye River Summit. According to a variety of eyewitness participants, including most importantly Mr. Netanyahu himself, this is what happened:
In September, 1998, just before the mid-term Congressional elections, President Clinton (who at the time was facing impeachment hearings and in need of a foreign policy PR victory) asked Israeli Prime Minister Binyamin Netanyahu to attend a three-way summit with the Palestinians at Wye River, Maryland. Clinton knew that a successful summit at Wye just before the Congressional elections would be good not only for his image, but would also reap great political benefits for the Democrats in their bid to regain control of Congress. As an inducement to Netanyahu, Clinton promised to release Jonathan Pollard within the context of the summit.
Understanding the value of Jonathan Pollard for his own re-election bid, and needing him as a sweetener to sell any kind of "peace" deal to the Israeli people, Netanyahu ignored the entreaties of Republican friends like Newt Gingrich who implored him not to hand a PR victory to the Democrats, and agreed to attend the summit.
Once the Summit was underway, Clinton "forgot" his promise to free Pollard. Netanyahu knew he had been "had" but there was little he could do about it at that point.
Talks at Wye soon broke down over the release of Palestinian murderers with Jewish blood on their hands and over Israel's request for the extradition of Ghazi Jabali, the Chief of Police in Gaza who was wanted for his role in planning and executing terrorist attacks in Israel. To break the stalemate the Palestinians suggested Jonathan Pollard as the solution. They proposed that Pollard be "sold" to Netanyahu once again: the US would give Jonathan to Israel in return for Israel's freeing hundreds of Palestinian terrorists, and immunity for Ghazi Jabali.
The US and Israel agreed to the Palestinian plan to swap Pollard for terrorists and murderers. President Clinton personally worked out the details in a late-night private session with a Palestinian and an Israeli representative. According to the deal, Prime Minister Netanyahu was to receive a side letter from President Clinton the next morning (one of approximately 30 side letters the Americans had promised) guaranteeing Pollard's release for November 11, 1998, one week after the US House elections.
The Pollard negotiation was the deal-maker at Wye which allowed the summit to be successfully wrapped up and a signing ceremony to be planned for the next morning in Washington, on Friday October 23, 1998.
Only hours before the signing ceremony, P.M. Netanyahu received all of the American side-letters that had been promised to him except one - the one guaranteeing the release of Jonathan Pollard. Netanyahu threatened not to attend the signing ceremony unless he got the Pollard side letter. Clinton said, "Trust me." Netanyahu, knowing he was about to be double-crossed by Clinton over Pollard for the second time, refused.
Netanyahu demanded that in the absence of a side letter of guarantee, Pollard should be freed into his custody immediately, or no signing ceremony. Arik Sharon, now Prime Minister of Israel, supported Netanyahu and they threatened to leave Wye without signing the Accords.
In order to take the pressure off President Clinton, CIA chief George Tenet quickly leaked the news of Pollard's imminent release to the media in a deliberate - and ultimately successful - attempt to torpedo the deal. He sent emissaries to Capitol Hill to hold emergency meetings with leading Senators and Congressmen to enlist their support in publicly denouncing Pollard's release. Many lies were told by the CIA emissaries about Jonathan Pollard to convince the American legislators to act swiftly and in unison. Believing the lies, the legislators complied and began an unprecedented series of public actions to prevent the release of Jonathan Pollard.
Meanwhile at Wye, under heavy pressure and still fearful that Netanyahu would not back down, Clinton quickly negotiated a private fall-back position with Netanyahu: Clinton would publicly promise to do a "speedy review" of the Pollard Case and he would use that review to free Pollard a few months later, parallel to the release of the 750 Palestinian terrorists who were part of the price Israel had agreed to pay for Pollard.
Under heavy public pressure and betrayed by his own Minister of Defense, Yitzhak Mordecai, who closed ranks with Clinton, Netanyahu folded and accepted this private deal. The signing ceremony was held in Washington as scheduled.
Netanyahu's capitulation at Wye and the lopsided deal he brought home from the summit, now that Pollard was no longer publicly perceived to be a part of it, would shortly cost him his premiership. This in turn would jeopardize the private deal that Netanyahu had made with Clinton because it required the next Prime Minister to ensure that Pollard's release was delivered as promised by the U.S.
After the signing of the Wye Accords, when Clinton had all that he wanted from the Israeli leader, the White House media spin falsely accused Netanyahu of having injected Pollard into the summit at the last moment. However, eye-witnesses to the Pollard deal at Wye, including the Israeli and the Palestinian who had negotiated the deal with Clinton, and the former Israeli Cabinet Secretary, Dani Naveh (currently Minister without Portfolio), all later contradicted the White House version of events and affirmed that President Clinton had committed the United States to the release of Jonathan Pollard as an integral part of the Wye Accords.
When Netanyahu returned to Israel after Wye, he created a firestorm of publicity by releasing 200 Palestinian common criminals from Israeli prisons. The Palestinians were outraged because they insisted that these common criminals were not the prisoners that they had bargained for at Wye. The Americans also angrily protested. Netanyahu reminded Washington that the Wye Accords do not specify exactly which prisoners Israel must release. Critics wondered why the Prime Minister would so deliberately antagonize the Americans this way.
Only those close to Prime Minister Netanyahu understood that this was Netanyahu's private, pointed reminder to Bill Clinton that if he were thinking of double-crossing him over Pollard yet a third time, he should think again. No Pollard, no release for the Palestinian murderers and terrorists. Unfortunately for Jonathan Pollard, Netanyahu's government fell before he was able to act on this.
In a meeting with Netanyahu right after his electoral defeat in the Spring of 1999, Jonathan Pollard's wife, Esther, received assurances from Netanyahu that the new prime minister, Ehud Barak, had been fully briefed about what had been agreed to at Wye and about the fall-back position; that is to say, Israel had yet to free the 750 terrorists with blood on their hands and was still supposed to receive Pollard home in what would be publicly presented as a parallel "gesture" from President Clinton.
Not long after Barak took office, the 750 Palestinian murderers and terrorists walked out of prison as free men. Jonathan Pollard remained in his American jail cell.
In an attempt to justify Clinton's reneging at Wye, a story was leaked to the press that George Tenet, a Clinton appointee, had threatened to resign as head of the CIA if Pollard were released. It became popular to cite the opposition of the American Intelligence community as the reason Clinton did not honor the U.S. commitment at Wye to free Pollard. This was soon exposed as the lame excuse it was when, in the fall of 1999, Clinton freed a group of unrepentant FALN terrorists in an apparent attempt to improve his wife's popularity with New York State's Hispanic community in her election bid for the Senate. To this day the same lame excuse continues to be used to justify the President's failure to honor America's commitment to Israel.
[A little more about the FALN clemency: in September of 1999, Clinton ignored a solid wall of opposition from the Justice, Intelligence and Defense departments and Congress, invoked his powers of executive clemency and set the FALN terrorists free. In doing so, he unequivocally put the lie to the notion that any government agency might tie his hands or influence his decision in matters of clemency. CIA chief Tenet's threat to resign was clearly an excuse, not the reason that Pollard was not set free.]
More than two years elapsed after Wye. President Clinton's "speedy review" of the Pollard case never occurred . Jonathan Pollard remained in prison while the US continued to extract Israeli concessions for his release. Those who still believed the myth that the American Intelligence Community was tying the hands of President Clinton also clung to the belief he would finally honor America's promise to release Jonathan Pollard at the end of his term, when he could do so without fear of political reprisal.
But when he left office in January 2001, Jonathan Pollard was not included among those to whom Clinton granted clemency:
On his last day in office, Clinton granted clemency to 140 people. Intense lobbying on the part of the Government of Israel and American Jewish leaders also produced a full pardon for a wealthy Jew, a criminal fugitive from justice who never stood trial, much less spent time in prison.
- in spite of the American commitment to free Pollard as an integral part if the Wye Accords
- in spite of the appeals of the Jewish community; and
- in spite of the demonstrable injustices of the Pollard case which include:
- a grossly disproportionate sentence
- a plea agreement violated by the US (honored by Pollard)
- the use of secret evidence
- a false charge of treason
- ineffective assistance of counsel
- a lack of due process
- a sentencing procedure infected by false allegations and lies
The deep involvement of many American Jewish leaders and the Government of Israel in that tainted pardon has become a source of embarrassment and shame for the Jewish community. They lobbied more convincingly to obtain a pardon for a criminal fugitive than they did for Jonathan Pollard, an Israeli agent in deteriorating health, who has done 16 years of hard time in some of the harshest conditions of the American penal system.
The commitment that the United States made at Wye to free Jonathan Pollard is still in effect, still viable, and has yet to be fulfilled. On February 28, 2001, Minister Dani Naveh, an eyewitness to the Wye deal, made the following remarks in the Knesset Record:
"...The former President of the United States, Bill Clinton, made an explicit commitment to the then-Prime Minister of Israel, Binyamin Netanyahu, to release Jonathan Pollard....
This promise was made prior to the Wye Summit and [again] during the course of the negotiations at Wye... This was not a personal promise made to a particular prime minister... This was a promise made to the State of Israel and to the People of Israel..."
(Dani Naveh, Minister without Portfolio)
As Naveh clearly indicated above, at Wye Mr. Clinton acted in his capacity as President of the United States and the commitments he made as an integral part of the Wye Accords are binding upon successive Administrations until fulfilled. The current Prime Minister of Israel, Arik Sharon, was also an eyewitness to America's promise to free Jonathan Pollard. Both morally and legally Sharon has no right to "forgive" that commitment to free Jonathan Pollard which was paid for in Israeli blood, land, and self-respect.
Since the Wye Summit terrorist Chief of Police, Ghazi Jabali, has remained immune from all charges and to this day continues to plan and promote terrorist attacks against Israeli civilian targets. The ranks of his bloodthirsty "army" is now larger by 750 terrorists - the price Israel paid at Wye for Jonathan Pollard. Jonathan Pollard did not agree to this price. He was not even consulted. Nevertheless, the fact remains that his release was bought and paid for in full by Israel in a currency agreed upon by both Israel and the United States. The United States is honor bound to deliver.
It is now Rosh HaShana 5762. A time of introspection and soul-searching. A time to look at our deeds over the past year and make amends. A time for "tshuva", the Hebrew word for repentance. "Tshuva" has a literal meaning as well. It means "response". It is a time for both the Jewish community and Israel to do "tshuva" for our failure to pursue justice for Jonathan Pollard with the kind of intensity and seriousness that has been demonstrated on behalf of other far less worthy cases. It is time for us to finally "respond" and to do whatever is necessary to free Jonathan Pollard.
It is incumbent on the Jewish community and its leadership to lobby unceasingly for Jonathan Pollard - both on Capitol Hill and in Jerusalem. Their message must be unequivocal: Israel must honor its commitment to Jonathan Pollard by collecting on America's promise to free him.
Jonathan Pollard put it best when he recently said, "My release must be a matter of principle - of justice and of due process and it should reflect the honor and integrity of the US-Israel special relationship. Israel has already paid for my release at Wye, it is time to collect it. Enough is enough." He is right. Now it us up to us to see that the deal is concluded honestly and honorably.
May all of Israel be inscribed in the Book of Life for a happy, healthy, peaceful new year, and may this be the year that we finally exert ourselves as a nation to redeem Jonathan Pollard and remove the stain of his prolonged suffering from the Heavenly record of our people.
P.S. On behalf of Esther and Jonathan Pollard, and my wife Karen and myself, I would like to extend deepest thanks and a hearty "Yashar Koach!" to Viewpoint and to the members and executive of the National Council of Young Israel for their unwavering support of Jonathan Pollard in his struggle for justice. The National Council of Young Israel, led by Rabbi Pesach Lerner, stands alone in America as a model of ahavat Yisrael and as exemplary leaders in the mitzvah of pidyan shvuyim. May you go from strength to strength and may your good deeds be amply blessed in the coming year. Amain! - Larry Dub.
BIO NOTE: Jerusalem-based attorney, Larry Dub, has been associated with the Pollard case since the time of Jonathan Pollard's arrest in 1985. He became Jonathan Pollard's attorney in 1994. He and his partner, Baruch Ben-Yosef, filed a series of suits in the Supreme Court of Israel which resulted in the Government of Israel recognizing Jonathan Pollard as a bona fide Israeli agent and in granting him Israeli citizenship. A former resident of New York, Dub attended the Young Israel of Hillcrest in his youth.