Jonathan Pollard, who pleaded guilty to spying for Israel, caught a glimpse of freedom this month for the first time since he entered a federal prison in 1987 to begin serving a life term. On the order of U.S. District Judge Thomas Hogan, Pollard was taken to Washington, where he heard his lawyers argue that his sentence was an injustice.
The courtroom was filled with Pollard's supporters. Most wore the knitted kippot that identifies the Orthodox Jews who are the backbone of the Israeli settlers' movement in the occupied West Bank and Gaza. Some years ago Pollard made a decision, after heated disputes within his circle of family and lawyers, to embrace both Orthodoxy and the settlers. Those who oppose reconsidering his sentence claim that only the movement's indefatigable, high-pitched endorsement has kept his case alive.
My own position on Pollard has a different source. I am a secular Jew, totally out of sympathy with the settlers' movement, which I consider the principal obstacle to Israeli-Palestinian peace. I believe Pollard remains in prison as the result of a miscarriage of justice. Whatever I think of his ideology, it is no reason to keep him locked up.
Let's stipulate from the start: Pollard was guilty of a crime in transmitting secrets to Israel. He pleaded guilty to "conspiracy to commit espionage," and in its formal filings, the U.S. government specified only that he damaged relations with the Arab world. Not even his strongest supporters claim that he should have been spared a prison term.
Yet it is fair to note that American law, which during the Cold War treated spies for the Soviet Union harshly, imposed sentences of only two to eight years for espionage in behalf of such friendly countries as South Africa, the Philippines, Egypt and Ghana. In 1996, the government even waived prosecution of a U.S. naval officer who spied for Saudi Arabia. Pollard is the only American ever given a life term for spying for a friendly state.
But that is not the heart of the injustice. After Pollard's arrest in 1986, he was persuaded by prosecutors to accept a plea bargain, which both sides signed. Pollard agreed to admit his guilt and cooperate fully with the government in unraveling the crime. In return, the government agreed to ask for a reduced sentence for Pollard's wife, who was implicated. But it also promised to refrain from asking the judge to sentence Pollard to life.
The prosecution never claimed that Pollard violated his part of the bargain. It kept its own promise to ask the judge to go lightly on Pollard's wife, but he nonetheless gave her the maximum term of five years as an accessory. Dutifully, the prosecutors did not recommend a life term for Pollard, but then something strange happened. Secretary of Defense Caspar Weinberger delivered to the judge a 46-page memorandum that called for a punishment that reflected "the magnitude of the treason committed."
In fact, Pollard was not charged with treason, which the Constitution defines as betraying the country to the enemy in wartime. In the judgment of legal experts, in addition to this damaging misstatement the memo effectively urged a life term for Pollard. The judge complied.
Did the Weinberger memo deliberately violate the plea bargain? The experts say the prosecutors had to know of it in advance. But even if they did not, Pollard's plea bargain was not with some prosecutors but with the U.S. government. Though Weinberger held office in a different branch, he was still acting in the government's behalf.
More important, the Weinberger memo has never been made public in its entirety, even to Pollard's appeals lawyers, which means the judge imposed the sentence based on secret data. Such secrecy is at best a distortion, if not an outright violation, of the Constitution's guarantee of an open trial. Since the sentencing, the government has leaked reports to the press on the crime's alleged magnitude, but none has been verified. The intelligence establishment is said to be fiercely opposed to any clemency for Pollard, but it has not publicly articulated its reasons. Even today, the Weinberger memo is secret, depriving not only Pollard and his lawyers but the American people of an official explanation for the sentence.
Judge Hogan, in opening his court to Pollard's lawyers, conveyed his own concern about the propriety of the sentence rendered by another judge. Much of the hearing concerned the Weinberger memo.
Pollard's lawyers said the prosecution had finally promised to let them examine it on the condition that they obtain top-secret FBI clearances. But when they did, the prosecution raised the bar, refusing access on the ground that they had no "need to know."
I sat in the courtroom listening to the government's case, which seemed to contain the elements of a "Catch-22." A government attorney said the memo remained top secret because it contained data that were still vital to national security. But he added that the data were irrelevant to Pollard's defense because they were more than 16 years old, thus out of date.
At the same time, he admitted that since 1993, government attorneys, asserting a "need to know," had on 25 occasions examined the memo in connection with Pollard's pleadings. Given these circumstances, Pollard's lawyers asked, how irrelevant can it be? Whoever has studied the Pollard case keeps wondering what the government is hiding. None say Pollard is innocent; most concede that, in the end, Pollard might even deserve the life term. But under the American system, the secrecy surrounding the sentence is surely inadmissible. Hogan's forthcoming ruling may soon get to the bottom of the mystery.