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Jonathan Pollard
Jonathan Jay Pollard (born
August 7, 1954) is a former civilian intelligence analyst who pleaded
guilty and was convicted on one count of spying for Israel, and in 1986
received a life sentence with a recommendation against parole.
Background
In 1985, Pollard's superiors at the Navy Field Operational Intelligence
Office (NFOIO) in Washington, D.C. grew suspicious of Pollard's conduct.
Stacks of classified documents unrelated to his work were repeatedly
found in his office. The Federal Bureau of Investigation (FBI) was soon
called in to investigate, and they arrested Pollard in November 1985.
Any hopes of keeping the scandal under wraps were dashed when Pollard
attempted to flee arrest by requesting asylum at the Israeli embassy, as
originally ordered by his Israeli handlers from the Lekem (his
controller was Rafi Eitan, former head of Lekem.) The Israeli embassy
nevertheless refused to grant Pollard and his wife asylum, and Pollard
was subsequently apprehended by the FBI.
Israel paid Pollard tens of thousands of dollars for his spying, but he
claims not to have been motivated by money. Exactly what information he
gave to Israel has still not been officially revealed. Press reports
cited a secret 46-page memorandum, provided to the judge by Secretary of
Defense Caspar Weinberger, describe Pollard's spying as including, among
other things, obtaining and copying the latest version of Radio-Signal
Notations, a 10-volume manual detailing America's global electronic
surveillance network. Parts of this memorandum were leaked to the press,
but Pollard's attorneys were denied access and this may have affected
their ability to conduct his defense. In a 2002 letter to IMRA, U.S.
District Court Judge George N. Leighton wrote:
"At the time Mr. Pollard was sentenced in March of 1987, the court
placed under seal approximately forty pages of material filed in the
court's docket. These included portions of a declaration by
then-Secretary of Defense Caspar Weinberger, and portions of
pre-sentencing memoranda submitted to the court by the government as
well as by the defense. The materials were sealed because the government
said they contained classified information, some of which could affect
national security if disclosed inappropriately.... Mr. Pollard and his
attorney at the time were permitted to read the sealed pages before
sentencing. However, despite the provision in the protective order for
future access, no attorney representing Mr. Pollard has been permitted
to see these pages since 1987. While this denial of access has severely
hampered the efforts of Mr. Pollard's new attorneys to secure justice
for their client, it has proved convenient for his adversaries. For
years, adversaries have exploited the sealed pages to generate political
opposition to relief for Mr. Pollard by spreading, in the press, rumors
and outright falsehoods. Since the accusations floated in the media are
nowhere to be found in the open court file, they would either be
substantiated in the sealed pages, or not at all. As no one representing
Mr. Pollard has been allowed access to the sealed pages, Mr. Pollard's
adversaries have had unbridled license to spread falsehoods with
virtually no risk of contradiction... 'The government's conduct in this
case is highly disturbing."
Pollard had, in the meantime, begun plea discussions with the
government. He sought to plead guilty both to minimize his chances of
receiving a life sentence and to enable Anne Pollard to plead as well,
which the government was otherwise unwilling to let her do. The
government, however, was prepared to offer Pollard a plea agreement only
after Pollard consented to assist the government in its damage
assessment and submitted to polygraph examinations and interviews with
FBI agents and Department of Justice attorneys. [**6] Accordingly, over
a period of several months, Pollard cooperated with the government
investigation, and in late May of 1986, the government offered him a
plea agreement, which he accepted.
By the terms of that agreement, Pollard was bound to plead guilty to one
count of conspiracy to deliver national defense information to a foreign
government (18 U.S.C. § 794(c)), which carried a maximum prison term of
life, and to cooperate fully with the government's ongoing
investigation. He promised not to disseminate any information concerning
his crimes without submitting to pre-clearance by the Director of Naval
Intelligence. His agreement further provided that failure by Anne
Pollard to adhere to the terms of her agreement entitled the government
to void his agreement, and her agreement contained a mirror-image
provision.
In return for Pollard's plea, the government promised not to charge him
with additional crimes, entered into a plea agreement with Anne Pollard,
and made several specific representations that are very much at issue in
this case. The critical provisions are paragraphs 4(a) and 4(b) of the
agreement, in which the government "agreed as follows":
(a) When [Pollard] appears [**7] before the Court for sentencing for the
offense to which he has agreed to plead guilty, the Government will
bring to the Court's attention [*1017] the nature, extent and value of
his cooperation and testimony. Because of the classified nature of the
information Mr. Pollard has provided to the Government, it is understood
that particular representations concerning his cooperation may have to
be made to the Court in camera. In general, however, the Government has
agreed to represent that the information Mr. Pollard has provided is of
considerable value to the Government's damage assessment analysis, its
investigation of this criminal case, and the enforcement of the
espionage laws.
(b) Notwithstanding Mr. Pollard's cooperation, at the time of sentencing
the Government will recommend that the Court impose a sentence of a
substantial period of incarceration and a monetary fine. The Government
retains full right of allocution at all times concerning the facts and
circumstances of the offenses committed by Mr. Pollard, and will be free
to correct any misstatements of fact at the time of sentencing,
including representations of the defendant and his counsel in regard to
the nature and extent [**8] of Mr. Pollard's cooperation. Moreover, Mr.
Pollard understands that, while the Court may take his cooperation into
account in determining whether or not to impose a sentence of life
imprisonment, this agreement cannot and does not limit the court's
discretion to impose the maximum sentence.
On June 4, 1986 Jonathan Pollard pled guilty to one count of conspiracy
to deliver national defense information to a foreign government. Before
sentencing, and in violation of the plea agreement, Pollard and his wife
Anne gave defiant media interviews in which they defended their spying,
and attempted to rally American Jews to their cause. In a 60 Minutes
interview, Anne said, "I feel my husband and I did what we were expected
to do, and what our moral obligation was as Jews, what our moral
obligation was as human beings, and I have no regrets about that."
Before sentencing, as noted above, Secretary of Defense Caspar
Weinberger delivered a 46-page classified memorandum to the sentencing
judge, the contents of which were not shown to Pollard's attorneys. On
the day before sentencing, Weinberger delivered a supplemental four-page
memorandum to the judge. Pollard and his attorneys were only shown the
supplemental memorandum briefly before sentencing. Pollard claims that,
in the memorandum, Weinberger accused him of treason and suggested a
lifetime prison sentence. However, the United States Constitution
provides that "Treason against the United States, shall consist only in
levying war against them, or in adhering to their Enemies, giving them
Aid and Comfort." Art. III, Sec. 3, cl. 1. As Pollard did not levy war
against the U.S., and since Israel was and is a U.S. ally, Pollard's
supporters argue that he was not guilty of treason.
Pollard was sentenced to life in prison on one count of espionage for an
ally. Pollard and his supporters protested that this was a sentence
unprecedented for such a charge, and was in violation of his plea
agreement. Pollard's attorney then failed to file his appeal within the
mandated ten-day period after sentencing. In 1987, Pollard began his
life sentence, which he is still serving. Pollard's wife, Anne, was
sentenced to five years in prison but was released after three and a
half years due to health problems.
In United States of America v. Jonathan Jay Pollard 747 F. Supp. 797;
1990 U.S. Dist. LEXIS 11844 filed a motion to withdraw the plea among
other things. The motion was denied. Several parts of the plea agreement
are mentioned in the appeal, United States of America v. Jonathan Jay
Pollard 295 U.S. App. D.C. 7; 959 F.2d 1011; 1992 U.S. App. LEXIS 4695.
The appeal was also denied. Several years later, with a different
attorney, Pollard filed a Habeas Corpus petition. A panel of the U.S.
Court of Appeals for the District of Columbia Circuit ruled two-to-one
to deny Pollard's petition, primarily due to the failure of Pollard's
original attorneys to file his appeal in a timely manner. The dissenting
judge, Judge Stephen Williams, called the majority's holding "'a
fundamental miscarriage of justice."
The Israeli government has paid all of Pollard's legal fees and he was
awarded Israeli citizenship in 1998.[4] The Israeli government has
repeatedly asked for his release, and Israeli leaders often raise the
Pollard case in discussions with U.S. officials, including with
Presidents Bill Clinton and George W. Bush. In 1998, Israel admitted in
a statement from then-Prime Minister Benjamin Netanyahu that Pollard had
been an Israeli spy. "One of the first things we said at [the 1998 Wye
River conference]," recalled Netanyahu in an interview, "was that if we
signed an agreement with Arafat, I expected a pardon for Pollard."[5]
However, President Clinton declined to release Pollard.
There were press reports at the time of the Camp David 2000 Summit that
Clinton had offered to pardon and release Pollard as an inducement to
then-Prime Minister Ehud Barak to enter into an agreement with the
Palestinians, but nothing ever came of it. There were also rumors that
Pollard was among the many whom Clinton considered for a Presidential
pardon on his last day in office, January 20, 2001.
The latest Israeli request for Pollard's release made in New York on
September 14, 2005 was again declined by President Bush. A request on
Pollard's behalf that he be designated a Prisoner of Zion was rejected
by the High Court of Justice of Israel on January 16, 2006. Another
appeal for intervention on Pollard's behalf was rejected by the High
Court on June 8, 2006.
Controversy over severity of Pollard's sentence
Pollard's supporters argue that his sentence was excessive: "The median
sentence for the offense Pollard committed - one count of passing
non-injurious classified information to an ally - is two to four
years."[6]. Although Pollard pled guilty as part of a plea bargain, he
was shown no leniency and was given the maximum sentence, comparable to
that of Aldrich Ames, the chief of CIA counterintelligence in Eastern
Europe and the Soviet Union, who was indicted for treason, convicted of
passing critical defense secrets to the Soviet Union during the Cold
War, and was found responsible for the deaths of at least 11 U.S.
agents.
Pollard maintains that he provided only information which, at the time,
he believed was vital to Israeli security and which was being withheld
by The Pentagon, in violation of a 1983 Memorandum of Understanding
between the two countries regarding the sharing of vital security
intelligence. According to Pollard, this included data on Soviet arms
shipments to Syria, Iraqi and Syrian chemical weapons, the Pakistani
atomic bomb project, and Libyan air defense systems ("Territory of
Lies", Wolf Blitzer, NY: Harper & Row, 1989, pp. 166-171).
Since then, however, he has publicly expressed remorse for operating
outside the law:
"Unfortunately, I failed to appreciate the fact that such concerns did
not justify my indifference to the law." (Pollard's public letter of
remorse of June 6, 1991, addressed to his parents but published widely
in newspapers)
and
"I realize that no matter what my motives may have been, I did not have
the right to violate the law. ... I have also made it very clear that I
do not consider myself to be a "hero" and would prefer that people
simply see me as someone who made a terrible mistake and who has paid
dearly for my mistake. Please accept this as my unconditional statement
of heartfelt remorse for my actions." (Pollard's public letter of
remorse of May 26, 1996, addressed to President Bill Clinton).
In recent years, others have argued that Pollard's punishment is too
harsh, including Caspar Weinberger, who had a major influence on his
sentencing in the first place. Jewish and Zionist organizations and
individuals are split over the case, however, with some believing that
he received an excessively harsh sentence as a Jew spying for Israel,
others arguing that any leniency shown him would reflect badly on the
loyalty of American Jews, and most standing in the middle. While Eric
Margolis (external link below) alleges that Pollard's spying may have
led to the capture and execution of CIA spies in the Eastern Bloc after
Israel forwarded Pollard's information to the Soviet Union, John Loftus
(external link below), argues that Pollard did not have access to agent
lists and that Israel would have had no reason to disclose such names to
the Soviet Union, even if it had them. Loftus believes that the exposure
of the CIA agents actually resulted from the ongoing activities of top
CIA official Aldrich Ames, arrested in February 1994, and FBI Special
Agent Robert Hanssen, arrested in February 2001. Their activities only
came to light long after Pollard's conviction.
In July 2005, the U.S. Court of Appeals for the District of Columbia
Circuit rejected Pollard's latest appeal. Pollard had sought a new trial
on the grounds of ineffective assistance of counsel, and he sought to
receive classified documents pertinent to his new lawyers' efforts in
preparing a clemency petition. The Court of Appeals rejected both
arguments, however, and Pollard remains imprisoned. On February 10,
2006, lawyers for Pollard filed an appeal with the United States Supreme
Court to attempt to gain access to the classified documents. The brief
was based on the notion that the separation of powers doctrine is in
fact a flexible doctrine which does not dictate the hermetic sealing off
of the three branches of Government from one another. The Court of
Appeals violated this principle in asserting sua sponte that the
judiciary has no jurisdiction over the classified documents due to the
fact that access was for the ultimate purpose of clemency, an executive
function. In fact, the President's clemency power would be wholly
unaffected by successor counsel's access to the classified documents,
and the classified documents were sealed under protective order, a
judicial tool. The Supreme Court denied this appeal on March 20, 2006.
His story has inspired Eric Rochant for a French movie Les Patriotes
(The Patriots). |
