Parole for Pollard?
"..President Bush ...granted a pardon to (Charles Winters), who broke the law to supply aircraft to Jews fighting in Israel's 1948 war of independence.......Winters died in 1984."
Milwaukee Journal Sentinel, Dec. 24, 2008, page 12A.
The outgoing President could generate even more gratitude from Israelis and pro-Israel Americans by commuting the sentence of a living man who also broke American law to help Israel: Jonathan Pollard.
Pollard was a civilian analyst for the Naval Investigate Service (now known as NCIS), who plead guilty in 1986 to one count of passing classified information to a foreign country, Israel. Although the Justice Department (pursuant to a plea agreement) asked for only a "substantial number of years" in prison, the judge followed the recommendation of then Secretary of Defense Caspar Weinberger and imposed a life sentence. Although Pollard has been eligible for parole since 1995, he has not yet applied for parole. He will be entitled to mandatory parole in 2015 if he complies with all prison rules till then. (1)
Pollard's offenses are actually much more serious than the one count to which he pleaded. He stole about a million classified documents, including a manual of US electronic surveillance codes. He passed information to South Africa, and tried to sell other info to Pakistan, among other countries. He earned tens of thousands of dollars from Israel alone for his perfidy. After his arrest, he also violated an agreement not to discuss classified information without Navy clearance in several interviews.
At first the Government of Israel denied that Pollard was spying for the Jewish state, then said he was doing so for a rogue operation. (Pollard's Israeli handler, Aviem Sella, was subsequently put in charge of an air force base; some rogue!) Later Prime Minister Benyamin Netanyahu admitted that Pollard did spy for Israel, and asked President Bill Clinton to release him in connection with the Wye River negotiations. When CIA Director George Tenet threatened to resign in protest if Clinton did so, the matter was dropped. Since then, both the Government of Israel and American Zionists have urged President George W Bush to pardon Pollard or at least commute his sentence to time served.
On the other hand, six former Secretaries of Defense who served after Weinberger, including Vice President Dick Cheney, have urged that Pollard remain in prison. I do not believe that Bush would go against Chaney on this issue, so further pressure in this direction is useless. Perhaps the Winters posthumous pardon was a gesture to the pro-Israel community to compensate (however insufficiently) for Bush's refusal to spring Jonathan Pollard.
Although Pollard spied for a friend, Israel, he got the same sentence as Aldrich Ames, John Walker and Robert Hanssen, all of whom worked for the Soviet Union. Morton Sobell, who also spied for the Soviets during World War II (when the USSR was allied with the US), was sentenced to 30 years in 1951, but was released in 1969. Unlike Pollard, Sobell did not have a plea agreement, and admitted his guilt only in September of this year.
In my judgment, the Pollard case is more similar iln severity to the Sobell case than to the Ames/Walker/Hanssen cases. Although Pollard harmed both the US and fellow Jews (who may have suffered discrimination in getting security clearances after his capture), I believe that he has suffered enough for his crimes, nearly a quarter-century of imprisonment. He poses no threat today: he will never again be entrusted with secrets, and any secrets he may still remember and might reveal are nearly 25 years old.
But why has he not applied for parole? Perhaps he is sure that it will be denied, perhaps he is holding out for a pardon or some other form of vindication.
I say to Jonathan Pollard: forget the pardon, forget the vindication. You have earned neither. With Cheney against a commutation, Bush won't grant it. If you don't like prison, apply for parole now!
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(1) Wikipedia biography of Jonathan Pollard.
Milwaukee Journal Sentinel, Dec. 24, 2008, page 12A.
The outgoing President could generate even more gratitude from Israelis and pro-Israel Americans by commuting the sentence of a living man who also broke American law to help Israel: Jonathan Pollard.
Pollard was a civilian analyst for the Naval Investigate Service (now known as NCIS), who plead guilty in 1986 to one count of passing classified information to a foreign country, Israel. Although the Justice Department (pursuant to a plea agreement) asked for only a "substantial number of years" in prison, the judge followed the recommendation of then Secretary of Defense Caspar Weinberger and imposed a life sentence. Although Pollard has been eligible for parole since 1995, he has not yet applied for parole. He will be entitled to mandatory parole in 2015 if he complies with all prison rules till then. (1)
Pollard's offenses are actually much more serious than the one count to which he pleaded. He stole about a million classified documents, including a manual of US electronic surveillance codes. He passed information to South Africa, and tried to sell other info to Pakistan, among other countries. He earned tens of thousands of dollars from Israel alone for his perfidy. After his arrest, he also violated an agreement not to discuss classified information without Navy clearance in several interviews.
At first the Government of Israel denied that Pollard was spying for the Jewish state, then said he was doing so for a rogue operation. (Pollard's Israeli handler, Aviem Sella, was subsequently put in charge of an air force base; some rogue!) Later Prime Minister Benyamin Netanyahu admitted that Pollard did spy for Israel, and asked President Bill Clinton to release him in connection with the Wye River negotiations. When CIA Director George Tenet threatened to resign in protest if Clinton did so, the matter was dropped. Since then, both the Government of Israel and American Zionists have urged President George W Bush to pardon Pollard or at least commute his sentence to time served.
On the other hand, six former Secretaries of Defense who served after Weinberger, including Vice President Dick Cheney, have urged that Pollard remain in prison. I do not believe that Bush would go against Chaney on this issue, so further pressure in this direction is useless. Perhaps the Winters posthumous pardon was a gesture to the pro-Israel community to compensate (however insufficiently) for Bush's refusal to spring Jonathan Pollard.
Although Pollard spied for a friend, Israel, he got the same sentence as Aldrich Ames, John Walker and Robert Hanssen, all of whom worked for the Soviet Union. Morton Sobell, who also spied for the Soviets during World War II (when the USSR was allied with the US), was sentenced to 30 years in 1951, but was released in 1969. Unlike Pollard, Sobell did not have a plea agreement, and admitted his guilt only in September of this year.
In my judgment, the Pollard case is more similar iln severity to the Sobell case than to the Ames/Walker/Hanssen cases. Although Pollard harmed both the US and fellow Jews (who may have suffered discrimination in getting security clearances after his capture), I believe that he has suffered enough for his crimes, nearly a quarter-century of imprisonment. He poses no threat today: he will never again be entrusted with secrets, and any secrets he may still remember and might reveal are nearly 25 years old.
But why has he not applied for parole? Perhaps he is sure that it will be denied, perhaps he is holding out for a pardon or some other form of vindication.
I say to Jonathan Pollard: forget the pardon, forget the vindication. You have earned neither. With Cheney against a commutation, Bush won't grant it. If you don't like prison, apply for parole now!
------------------------------------------------------------------------------------------
(1) Wikipedia biography of Jonathan Pollard.
Labels: Pollard
posted by Gerald S Glazer at 1:58 PM
2 Comments:
Wikipedia, not always very accurate, missed a few facts.
Ivan
Monday, December 22, 2008
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NEWS ANALYSIS
WorldNetDaily Exclusive
Did U.S. give WMD to Saddam Hussein?
Case of Jonathan Pollard raises troubling questions
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Posted: December 21, 2008
8:36 pm Eastern
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WorldNetDaily
Jonathan Pollard
The federal medium security prison in Butner, N.C., is a grim, long, low building surrounded by a high wire fence. It is where, since 1993, Jonathan Pollard has served a life sentence for spying for Israel.
Seven years prior to his transfer to Butner, Pollard was held briefly in a Washington, D.C., jail following his arrest and then was confined for more than a year in Springfield, Mo., in a ward for the criminally insane. He then spent six years in solitary confinement, three stories underground, cut off from the world.
Since his arrest Nov. 21, 1985, Pollard has consistently expressed remorse, but the hostility against him is still manifested by those who describe him as a traitor who acted not on behalf of Israel, but for money – a charge he vigorously denies.
I arrive at Butner Wednesday, Oct. 24, with Pollard's pro bono attorney, Eliot Lauer, a highly respected litigator specializing in white-collar crime and Securities and Exchange Commission civil suits at Curtis, Mallet-Prevost, Colt & Mosle, a prestigious New York law firm founded in 1838 with offices all over the world.
Visitors are greeted on entering the prison lobby by a flashing, colored sign that says, "WELCOME TO BUTNER. HAVE A NICE DAY."
(Story continues below)
Nick appears, a slight, pleasant man with rosy cheeks, who is to monitor our visit. He is from Naval Intelligence, where Pollard worked when he engaged in espionage for the Israelis. The three of us are led by an officer down a long, immaculate hallway lined on one side with Ansel Adams photograph prints.
Nick leads us through secured doors until we reach the cheerful, brightly lit cafeteria, with low, child-sized plastic blue tables and uncomfortable red plastic chairs.
Pollard appears. Now in his early 50s, he has a neatly trimmed graying beard and closely cropped hair, a change from his previous incarnation when he let his hair grow long.
He wears a small yarmulke and a khaki prison jump suit, and has the built of a wrestler. He quickly zeroes in on the background of one piece of information that the Israelis were particularly anxious to have.
In 1981, Israel, using information supplied by American intelligence, bombed Saddam Hussein's Osirak nuclear facility without consulting the U.S. Pollard found out while working as an analyst for Naval Intelligence that the U.S. had an agreement with Israel that the two counties would share intelligence. But after the attack at Osirak, the U.S. started to secretly punish Israel by stopping the flow of intelligence.
Without knowing this, the Israelis approached American military intelligence regarding something going on in Samarra they thought was suspicious.
According to Pollard, he learned that Casper Weinberger, then-secretary of defense, had "assured them that nothing was going on." When Pollard discovered, before he volunteered to spy for Israel, that there was, in fact, a chemical weapons plant under construction there, he asked his superiors at Naval Intelligence why the U.S. had not informed Israel. One of them quipped that "Jews are sensitive about gas."
Pollard learned as well that Bechtel – the American construction giant for which Weinberger had served as general counsel and for which then-Secretary of State George Shultz had served as CEO – was facilitating the construction of the plant through a number of different companies. The firms were camouflaging it as a "dual-use facility that could be explained away as a fertilizer plant."
"How much fertilizer does Iraq need?" Pollard speculates with irony.
According to Pollard, the plant cost "hundreds of millions of dollars to build" and required waivers from the Department of Defense and the State Department.
It was at this point that Pollard decided he had no choice but to spy for Israel. As a Jew, he was haunted by the Holocaust and concluded that what he had learned meant Israel was faced with an "existential threat" about which it knew nothing.
Israel did not know that the U.S. was providing Saddam Hussein with weapons of mass destruction, even though he had pledged to annihilate Israel. The weapons were deemed necessary for Saddam to use against Iran, the home of the Islamic revolution.
When Pollard's handlers asked him to provide them with the information to confirm that what Weinberger had told them was true, he produced the "irrefutable evidence" – there was, in fact, a large chemical weapons facility.
Examining the photographs, one of them said, "This is the stuff that doesn't exist." Pollard's handler then observed that "sometimes it's better to deal with a reliable enemy than an unreliable friend."
Not knowing where it stood with the U.S., Israel flew RF-4 reconnaissance planes to confirm what Pollard had shown them, losing one plane.
In addition to the information, Pollard also supplied Israel with the U.S. handbook on communications intelligence, a reference manual of radio-signal notations. The prosecution would argue this was a major breach of security, based on Weinberger's affidavit to the court, but later were forced to acknowledge it was part of the legal flow of information to Israel.
The court records show that when challenged, the U.S. government grudgingly acknowledged that one third of the compendium had nonetheless been officially denied to Israel. Citing "national security" considerations, the government also declined to provide the court with the list of foreign intelligence agencies that had received the entire document.
Silenced in solitary
But there well may have been other reasons why the Reagan administration wanted Pollard silenced in solitary and then at Butner.
Pollard had an official assignment with regard to Iran and Israel. His job, he explains, was to "write an assessment of what air defense systems were available on the open market so that Israel would make the equipment available to Iran."
This was the method used to circumvent the arms embargo against Iran. Israel would sell the equipment to Iran at a premium, with profits from the sales going, though a series of conduits, to the Contras fighting in Nicaragua. The result was that he was indirectly providing Iran with the tools it needed to protect its strategic Kharg Island, where its oil pumping facilities were located. Iraq had been pounding the site, using strategic intelligence provided to Saddam by the CIA and the Pentagon.
Pollard says he also had knowledge of the Raptor-Hawk missiles that were shipped from Israel to Iran by way of Portugal.
"Bill Casey wanted me out of the country," he asserts. "To understand my case," Pollard sums up, "it has everything to do with Iran-Contra."
Targeting Arafat
Pollard also supplied Israel with the exact location of Arafat's headquarters in Tunisia and with information about Libya's radar capabilities, enabling Israel to bomb it without detection as its Lockheed Martin F-16s flew towards their target. Arafat escaped, but a number of his aides were killed.
Moreover, Israel was using American aircraft that the U.S. had made possible for them to buy with American military aid, to hit targets the U.S. did not want attacked.
Pollard also insists he never sold the information to Israel and that he didn't spy for any other country. The suspicions that he sold information to Pakistan come from what he said to the FBI when he was first arrested. Pollard's Israeli handlers had told him to say that he was a spy for Pakistan, so that Israel would not be implicated.
And when he delivered the first information that the Israelis had requested, he turned down the $10,000 they had offered him. It was only after he had made several deliveries to them that his handlers explained that they had to pay him a salary, as he was now an official Israeli agent of LAKAM, the science and technology spy agency.
LAKAM, as Pollard describes it, was, in actuality, a "black bag operation that "supposedly got the nuclear trigger" for Israel." It was an official intelligence agency operated under the auspices of the Ministry of Defense.
LAKAM was a competitor of the Mossad, and the two agencies, which ought to have cooperated, were fiercely combative. LAKAM severely embarrassed Mossad with the quality of information provided by Pollard, engendering Mossad's animosity towards LAKAM and Pollard. Regarded as a rogue agency by Mossad, it succeeded in shutting LAKAM down in 1988 after the Pollard scandal.
The Israeli government, at the time, asserted that the Pollard operation was an unauthorized deviation from its policy of not conducting espionage against the U.S., an assertion Israel would eventually withdraw when it recognized Pollard as its agent.
LAKAM was headed by Rafi Eitan, one of Israel's most brutal operatives, who kept pressing Pollard for more and more information after he had gotten what he had initially wanted. Pollard says Eitan placed him in unnecessary danger, because Eitan had become "addicted." Acknowledging his responsibility for Pollard's activities, Eitan resigned before LAKAM was disbanded.
Pollard and his ex-wife, Anne, who had tried to save him at the last moment by removing documents from their apartment, were both indicted under 18 USC 794(c) of the 1917 Espionage Act on one count of conspiring to pass classified information to "the advantage of a foreign nation," in this case, Israel.
No treason
Specifically, Pollard was not indicted for treason under 794(b), which involves giving classified information to "the enemy of the United States in time of war," or under 794(c) "for the "intent or reason to believe" that the information "is to be used to the injury of the United States."
What Pollard did was to violate the Espionage Act in the least harmful manner, since he passed information to an ally of the U.S., Israel, that had a right to the information under an existing treaty. Pollard contends the U.S., itself, breached the treaty, placing its ally Israel in serious danger.
Pollard admitted his guilt and acknowledged that what he did was wrong. On the advice of his attorney, Richard Hibey, he entered into a plea deal. In return for giving up his right to a trial and to remain silent, Pollard agreed to plead guilty to a single count of conspiracy to commit espionage.
He also agreed to cooperate fully with the government, which he did over a period of 15 months, during which time he willingly underwent polygraph tests to confirm the veracity of the information he provided. In exchange, the government promised not to ask the court for a sentence of life in prison, the maximum sentence it could have imposed for Pollard's offense.
Yet the government placed the admission in a section titled "Factors Compelling Substantial Sentence," thereby denigrating the cooperation without any factual or legal basis. This, according to Pollard's current attorneys, was a breach of the plea agreement. The agreement required the government to bring to the sentencing court's attention the nature and extent of the cooperation. The attorneys regarded it as an extreme violation of the requirement that the government act in "good faith."
When Pollard appeared before Judge Aubrey Robinson III, the judge asked if he was prepared to enter a guilty plea, advising him that, irrespective of the plea agreement, the judge could still sentence him to life in prison. Pollard responded in the affirmative. There was, at that time, no reason to believe that would be the case. But soon after accepting the plea deal, Pollard found everything was falling apart.
Iran-Contra players
Joseph diGenova, the U.S. attorney for the District of Columbia, submitted a Victim's Impact Statement, or VIS, to show Robinson the extent of the harm that Pollard had done to the U.S., the purported victim of the crime. The damage, the statement alleged, was the harm done to relations with other Middle Eastern countries, which "skewered the balance of power in the Middle East."
Pollard also, the document alleged, deprived the U.S. of "the quid pro quo routinely received during authorized and official intelligence exchanges with Israel." The VIS alleged Pollard, by virtue of his actions, had "significantly damaged office morale and caused considerable emotional distress." It also pointed to the "thousands of pages" delivered to Israel.
DiGenova had Secretary of Defense Weinberger provide a memorandum to the court, explaining why Pollard's actions merited life in prison. Pollard's defense counsel argued that even the sealed portions of the Weinberger Declaration did not allege that any agents died, or were even compromised or "that it had to replace or relocate intelligence equipment, that it had to alter communication signals, or that it has lost other sources of information, or that our technology has been compromised."
Indeed, the memo only discussed the possibility that "sources may be compromised in the future, thus requiring countermeasures."
DiGenova's boss was Attorney General Ed Meese, a longtime Ronald Reagan confidant from California when Reagan was governor, just as Weinberger had been. And Meese was up to his ears in Iran-Contra. His involvement was as a "counselor" and "friend" to the president, not technically as the nation's chief law enforcement officer, since what Meese advised Reagan raised serious questions of illegality.
Chapter 31 of the official Final Report of the Independent Counsel for Iran/Conta Matters discloses Meese's direct involvement: "Meese knew of the 1985 HAWK transactions, in which the National Security Council staff and the CIA were directly involved without a presidential covert-action finding authorizing their involvement, raised serious legal questions. The president was potentially exposed to charges of illegal conduct if he was knowledgeable of the shipment and had not reported it to Congress, under the requirement of the Arms Export Control Act (AECA) and in the absence of a Finding. …When Meese got answers in his inquiry that did not support his defense of the president, he apparently ignored them, as he did with Secretary of State George P. Shultz's revelation on November 22 that the President had told him that he had known of the Hawk shipment in advance."
Meese clearly knew that Pollard had known about the HAWK missile transaction. That his U.S. attorney in Washington was recruiting Weinberger to denounce Pollard was no accident. This was a high profile case in which Reagan had taken an interest. He was furious with the Israelis about the Pollard affair and had summoned them to a meeting to explain themselves.
The Israelis implausibly continued to deny any knowledge of Pollard, claiming it was a "rogue operation," which only inflamed American sentiments further. In an attempt to pacify the Americans, then-Prime Minister Shimon Peres committed himself immediately to return all of the documents that were then used as evidence against Pollard
Weinberger, himself, had much to hide in Iran-Contra. He participated in the transfer of U.S. TOW anti-tank missiles to Iran, and following the disclosure of his role, he resigned as secretary of defense. Independent Counsel Lawrence Walsh placed Weinberger under indictment in 1992 after his resignation on five counts of obstruction of justice, perjury and making false statements in connection with congressional and Independent Counsel investigations of Iran-Contra.
The court dropped the obstruction count and one count charging a false statement made in a second indictment, leaving four counts. Before the January 1993 trial date, President George H.W. Bush pardoned Weinberger, denying any personal knowledge of Iran-Contra himself.
The U.S. District judge that presided over the case was Thomas Hogan. According to Special Prosecutor Lawrence Walsh, Judge Hogan kept delaying the Weinberger trial until the fall of 1992, when Bush lost the election and pardoned Weinberger. In 2003, the Pollard case was assigned to Judge Hogan, who was called upon to decide the claim that his trial lawyer, Richard Hibey, was ineffective for having failed to challenge the Weinberger Declaration. Judge Hogan denied all relief.
Determined to go after Pollard, Weinberger first submitted the 46-page pre-sentencing declaration, setting forth the government's views regarding damage allegedly caused by Pollard's actions, including predictions of the possible harm that might arise as a result of his conduct. Both Pollard and Hibey examined the declaration. Pollard and Hibey submitted their own memorandum, and the government replied.
However, portions of the government's submissions, some 35-40 pages distributed among five documents – including Weinberger's specific projections of possible harm and the sentencing transcript – were redacted from public view based on the government's assertion that the portions contained classified information.
On March 3, 1987 – the day before sentencing – Weinberger submitted a four-page Supplemental Declaration in which he now accused Pollard of having caused as much or greater harm to national security that any other spy in the "year of the spy" –a well-understood reference to the recent espionage cases of John Walker (head of the infamous Walker Spy Ring,) Jerry Whitworth, (a member of the Walker Spy Ring,) and Ronald Pelton. Each had spied for the Soviet Union, and each had been sentenced to life in prison just a few months earlier.
In addition, Weinberger's Supplemental Declaration falsely accused Pollard of "treason," a crime for which he had not been charged and which he had not committed. Treason, a capital offense, entails aiding an enemy of the U.S. in time of war. (Over four years later, an attorney for the government would admit in court that the government's use of the word "treason" at sentencing was "regrettable." However, the damage had been done). By comparing Pollard to Walker, Whitworth and Pelton, each of whom had been sentenced to life, and asking for a sentence commensurate with the harm done, Weinberger was unambiguously asking for life in prison. This was a material breach of the plea agreement
Based on what Judge Robinson considered a breach of the plea agreement by Pollard, and by virtue of Weinberger's two declarations, Robinson sentenced Pollard to life in prison. He made the decision even though the average sentence for others who had committed the same offense – passing classified information to another country without intending to harm the U.S. – was in the neighborhood of four to five years.
But Pollard's lawyer failed to file the one-page Notice of Appeal of the sentence, which he could have done by walking down the hall to the appropriate office.
Pollard's current lawyer, Eliot Lauer, points out that since the government was in substantial violation of the plea agreement, there was no question but that the sentence would have had to be set aside and that a new sentencing hearing would have been ordered.
Lauer, who, with his colleague Jacques Semmelman became Pollard's lawyers on a pro bono basis after the sentencing, says he cannot fathom why the notice of appeal was not filed, particularly since Hibey was an experienced criminal attorney. Hibey served as an assistant U.S. attorney and appeared as counsel of record for a number of high profile cases.
Lauer and Semmelman describe Hibey's failure to file the Notice of Appeal as "mind boggling." By not doing so, he deprived Pollard of any chance of direct appellate review of his life sentence. Any review could only be done thereafter via habeas corpus, which carries a much greater burden of proof than direct review and which was the major reason why Pollard's first habeas corpus petition was denied.
In 2005, an item appeared on the U.S. Prisons website saying "Pollard's life sentence to end in 2015." As Lauer has explained in a communication to the Israeli newspaper Haaretz, "under U.S. law in effect at the time of Mr. Pollard's activities, any prisoner sentenced to life in prison is presumptively entitled to parole on the 30th anniversary of the date of incarceration as the 'projected' release date, which is posted as such on the U.S. Prisons website.
On Nov. 21, 2015, Pollard will be presumptively entitled to parole. However, the U.S. government will still be entitled to oppose it.
Pollard, a self-acknowledged Jewish nationalist, had to sue Israel to give him Israeli citizenship, which finally was granted in 1995 as a result of legal action. In 1998, after years of denial, Israel officially acknowledged Pollard was their agent.
Meanwhile, he pressures the government of Israel to do more to get him released, while his wife and his supporters in Israel agitate for him, condemning what they consider to be betrayal by Jewish state.
When I ask him what he would do if he were released, he says, "I will go home, to Israel."
Secret files
When Lauer and Pollard entered the case, they saw there were sealed documents in the court file. They asked the U.S. Department of Justice to allow them access to present a clemency application to President Clinton, who was about to leave office.
To effectively present the petition, they needed to see the entire court record. After spending months getting the highest security clearance possible, "Top Secret," the Justice Department summarily denied them access, because they had no "need to know." They filed a motion in the U.S. District Court, asking for a modification of the 1986 protective order by which the materials had been placed under seal in 1987.
The government opposed their motion on two grounds: They had no "need to know," inasmuch the materials were (supposedly) of interest to no one, least of all the Clinton administration, and that they been accorded the wrong security clearance. They had received "Top Secret," while the materials were "SCI," Secure Compartmented Information.
Motions then were filed to modify the prior denial of access. The motions were assigned to Judge Hogan, who denied them. On appeal to the D.C. Circuit, Judge Sentelle insisted from the bench that there was no jurisdiction to hear the motions, supposedly because their underlying objective in seeing the court records was to prepare a clemency application. The judge reasoned that this somehow implicated the separation of powers and precluded the court to exercise jurisdiction over the motion. The decision was 2-1 against Pollard, based on a lack of jurisdiction.
Pollard's legal team appealed all the way to the U.S. Supreme Court, which declined to hear the case. Pollard repeatedly was denied his day in court, on a technicality only, from the lower court to the Court of Appeals all the way to the Supreme Court. His lawyers then wrote a lengthy "Executive Summary of the Legal Initiatives for Jonathan Pollard," which they have circulated to "seek the support of members of Congress, other elected officials, and organizational, communal and clerical leaders" in order to martial public opinion.
A letter to President Bush requesting access to the sealed court docket materials so they could prepare a serious clemency application based on the record, remains unanswered.
Bargaining chip
Pollard has been used off and on as a bargaining chip, with his release preconditioned by actions the U.S. wanted from Israel. During the negotiations over the Wye River Memorandum, brokered by the U.S. between Israel and the Palestinian Authority in October 1998, President Clinton playing a critical role. The president approached American ambassador to Israel Martin Indyk and raised the issue of Pollard. Indyk, suspecting that Netanyahu had brought up Pollard with Clinton, reminded Clinton that Rabin had asked for Pollard's release but that Clinton had not given him to Rabin. Clinton responded that what was fair did not matter but whether they could get a deal.
The Wye agreement Clinton was pushing would give the Palestinians autonomy in Gaza and the West Bank in exchange for a pledge by the PLO to renounce terrorism. It also required that there would be no further settlements in the occupied territories. Netanyahu resisted any accommodation with the Palestinians but had indicated a willingness to negotiate the release of 30 Palestinian prisoners.
Clinton asked his chief negotiator, Dennis Ross, whether releasing Pollard would help seal the deal.
"Is it a big political issue in Israel? Will it help Bibi (Netanyahu)?" Clinton asked.
Ross told Clinton that it was a big issue, because Pollard was considered a "soldier for Israel" and there was "an ethos in Israel that you never leave a soldier behind in the field."
But if Clinton wanted Ross' advice, Ross told him, he should not release him now.
"It would be a huge payoff for Bibi; you don't have many like this in your pocket. I would save it for permanent status. You will need it later, don't use it now."
In a footnote to his memoir, "The Missing Peace," Ross writes: "I also said I was in favor of his release, believing that he had received a harsher sentence than others who had committed comparable crimes. I preferred not tying his release to any agreement, but if that was what we were going to do, then I favored saving it for permanent status."
Clinton demurred. "I usually agree with you," he said, "but this stalemate has lasted so long that it has created a kind of constipation. Release it and a lot becomes possible. I don't think we should wait, and if Pollard is the key to getting it one now, we should do it."
But when CIA chief George Tenet reportedly threatened to resign if Clinton released Pollard, Clinton, using this as a pretext, changed course. The president, in effect, called Netanyahu's bluff on Ross' advice.
Netanyahu later confirmed that Clinton had in fact offered to released Pollard, as did others at the negotiations, but Clinton continued to deny it. Netanyahu did release 700 Palestinian prisoners and granted Ghazi Jabal immunity from prosecution, but to no avail. In the end, Netanyahu backed down and signed the accord in exchange for a promise by Clinton to review Pollard's case. Later, Malcolm Hoenline, a top U.S. Jewish leader, revealed Tenet told him that he never threatened to resign over the release of Pollard.
And while he serves the hardest time possible, Pollard himself contemplates a statement made by Weinberger shortly before his death. In a 2004 interview, Weinberger said the Pollard issue was "a very minor matter, but made very important. … It was made bigger than its actual importance."
Weinberger took the real reasons for Pollard's life sentence to the grave.
Another point of view different from Wikipedia.
Ivan
The Truth About Jonathan Pollard
by John Loftus
Pollard's life sentence is based on a humongous Washington whopper of a lie.
When American intelligence broke the Soviet wartime code, we learned that the Soviets had infiltrated the American government. The American intelligence community's penchant for secrecy and its refusal to admit that it had been infiltrated was so great that it failed to disclose this to President Harry S. Truman. This is how Daniel Patrick Moynihan described it:
"The Soviets knew we knew they knew we knew. The only one who didn't know was the President of the United States. Our politics was injured for 30 years by this."-Quoted in the New York Times, March 30, 2002
There is a good reason why neither Congress nor the American Jewish leadership supports the release of Jonathan Pollard from prison: They all were told a lie -- a humongous Washington whopper of a lie. The lie was first whispered in the "bubble," the secret intelligence briefing room on Capitol Hill, but it quickly spread.
Just before Pollard's sentencing, Senator Chic Hecht of Nevada, a senior member of the Senate Intelligence Committee, telephoned the leaders of every major Jewish organization to warn them not to support Pollard in any way. Pollard had done something so horrible that it could never be made public. Several senior intelligence sources confirmed the message: No matter how harsh the sentence, Jewish leaders had to keep their mouths shut; don't make a martyr out of Jonathan Pollard.
Washington insiders thought they knew the big, dark secret: secret documents confirming that Pollard's spying had resulted in the loss of lives of U.S. intelligence agents.
Pollard had supposedly given Israel a list of every American spy inside the Soviet Union. On several occasions Soviet agents in New York had posed as Israelis. The CIA reasoned that that was also true in Israel: The Mossad had been infiltrated by one or more Soviet spies. In the trade this is called a "false flag" operation: Your enemy poses as your ally and steals your secrets. In this case, the CIA reasoned in attempting to explain its horrendous losses, Pollard had passed the information to Israel he had stolen, which in turn fell victim to the "false flag" operation. Soviet agents in Israel, posing as Israeli intelligence agents, passed the information to Moscow, which then wiped out American human assets in the Soviet Union.
Pollard hadn't meant for this to happen, but the result of the "false flag" mistake was mass murder. In a matter of months, every spy we had in Russia -- more than 40 agents -- had been captured or killed. At least that was the accusation, but the basis for it had been kept secret from Pollard and his defense counsel.
The public could not be told the horrifying truth: American intelligence had gone blind behind the Iron Curtain -- we had lost all our networks, as the intelligence community publicly admitted more than a decade later. The Soviets could have attacked the United States without warning. Everyone who knew at the time (including me) blamed Pollard.
On March 5, 1987, at 2:22 p.m., the sentencing hearing in U.S. District Court in Washington, D.C., began in Criminal Case No. 86-207, United States of America v. Jonathan Jay Pollard. The prosecutors produced a secret letter and memo from Secretary of Defense Caspar "Cap" Weinberger referring to the "enormous" harm that Pollard had done to our national security. In his memo, Weinberger directly accused Pollard of betraying America's "sources and methods," which is to say, he had betrayed our spies in foreign countries.
Weinberger publicly stated that Pollard was the worst spy in American history: "It is difficult for me, even in the so-called year of the spy, to conceive of a greater harm to national security than that caused by the defendant." Despite his plea agreement to the contrary with the government, Pollard was given the maximum sentence, life in prison. Weinberger later said that he wished Pollard had been shot.
A week after the sentencing, the Washington Times reported that the United States had identified Shabtai Kalmanovich as the Soviet spy in Israel who supposedly worked for the Mossad but was actually working for the KGB; he had betrayed American secrets to Moscow. Kalmanovich had been flying under a false flag. Washington insiders winked knowingly at one another: Pollard's contact in Israel had been caught.
Just to make sure that Pollard was blamed, U.S. intelligence sources, several months later, leaked word to the press of the Kalmanovich connection. "A Russian mole has infiltrated the Mossad and is transmitting highly sensitive American intelligence information to the Russians," was the report flashed around the world by United Press International on Dec. 14, 1987. Citing "American intelligence sources," the UPI announced that the "sensitive intelligence material relayed to Israel by Jonathan Pollard had reached the KGB."
But it was all untrue. Every bit of it. Pollard wasn't the serial killer. The Jew didn't do it. It was one of their own WASPs -- Aldrich Ames, a drunken senior CIA official who sold the names of America's agents to the Russians for cash. Pollard was framed for Ames's crime, while Ames kept on drinking and spying for the Soviets for several more years. In fact, Israeli intelligence later suspected that Ames played a direct role in framing Pollard. But no one in America then knew the truth.
Ames was arrested in February 1994, and confessed to selling out American agents in the Soviet Union, but not all of them. It was only logical to assume that Pollard had betrayed the rest of them, as one former CIA official admitted shortly after Ames's arrest. Even one life lost was too many. So Pollard continued to rot in jail. No one dreamed that yet another high-level Washington insider had sold us out to Soviet intelligence. Years passed, and eventually a Russian defector told the truth. A senior FBI official -- Special Agent Robert Hanssen -- had betrayed the rest of our agents. Hanssen was arrested in February 2001, and soon confessed in order to avoid the death penalty. He was sentenced to life in prison without parole.
Would the Americans now admit that they had been conned into blaming Pollard? Beltway bureaucrats do not readily admit to mistakes of this magnitude. Instead, they convinced themselves that Pollard might still be at least partly to blame for the worst debacle in U.S. intelligence history. One desperate analyst from the National Security Council, looking for something to pin on Pollard, had his own theory. Maybe the Russians didn't initially believe that their own spies (Ames and Hanssen) had procured all the names of U.S. agents in the Soviet Union. Maybe Pollard's list tipped the scales.
Such things had happened before. Once again, Washington insiders circled their alphabet agencies to fire back at the critics who dared to suggest that Pollard might have been innocent of the major charge against him.
Meanwhile, deep inside the Navy's intelligence service, a low-level decision was made to re-examine the Pollard case in view of the convictions of Ames and Hanssen. With sickening chagrin, the Navy discovered that the evidence needed to clear Pollard had been under its nose all along.
As my source in Naval intelligence explained, the list of our secret agents inside Russia had been kept in a special safe in a special room with a special "blue stripe" clearance needed for access. When I was a lawyer in the Justice Department and would be sent over to the CIA to do research, I was permitted to use only a blue-striped, CIA-issue legal pad for note-taking. Nothing with a blue stripe could leave the building without being scrutinized by CIA security.
But Jonathan Pollard didn't have "blue stripe" clearance, according to intelligence sources I spoke with. That was the bombshell that would clear him of any possible connection to the deaths of our Russian agents.
Just to make sure, I checked it out, even visiting Pollard in prison to confirm it. Sure enough, there is no way on earth Jonathan Pollard could have entered the file room, let alone the safe where the list was kept.
But the intelligence community's failure to catch this and thereby discredit a critical piece of prosecutorial evidence was, to put it mildly, a bit of an oversight. Some would say it was an obscene blunder. I regard it as an understandable mistake that was overlooked in the avalanche of phony evidence the KGB was planting that pointed to Pollard and away from Ames and Hanssen, whom the Soviets wanted to protect. Both of them had "blue stripe" clearance, as was well documented in several books that have been written on each man and his exploits.
The lack of "blue stripe" clearance was the final proof that Pollard could not possibly have betrayed our Russian agents. It should certainly have gotten him a new hearing. As a former federal prosecutor, I can state that it would be hard to rebut this kind of evidence.
The Justice Department, in one of its briefs, had specifically mentioned the "false flag" theory as grounds to support Pollard's heavy sentence, arguing in part, that spying even for friendly countries can be damaging if information ultimately falls into the wrong hands. In this, the Justice Department had unwittingly misled the judge. Weinberger also raised the "false flag" issue in his top-secret memorandum to the judge.
The only possible way to uphold the sentence might be the "harmless error" doctrine. The government could admit that Pollard had never stolen the Russian agent list, but so what? Maybe he had passed other information that was equally damaging, so he would still deserve to remain in prison for the rest of his life.
The problem with the "harmless error" strategy is that the rest of the material that Pollard gave the Israelis was itself pretty harmless.
In fact, the original damage assessment from the intelligence community confirmed that the impact on our national security -- of the release of information other than the agent names-was not serious. This assessment came after Pollard's initial grand jury appearance, but before the Soviets began to frame Pollard with the phony Kalmanovich connection. No less a figure than Assistant U.S. Attorney Charles Leeper had characterized damage caused by the release of the information that Pollard actually gave Israel as "minimal."
The reason America suffered so little harm is simple: Pollard was stealing Soviet secrets for Israel, not American secrets for the Soviets. Before the fall of communism, the Soviets were shipping guns to nearly every terrorist group in the Middle East. Pollard knew that U.S. intelligence had been ordered to share this information with Israel -- under an executive order signed by President Reagan -- but had not done so.
In fact, as Pollard himself admitted in one of my three prison interviews, many, if not most, of the documents he handed over were cover sheets showing the titles of files that the U.S. was supposed to share with Israel, but were holding back. (The U.S. government, according to Israeli intelligence sources, mistakenly counted the cover sheets as if they were full files and came up with the mythical "room full of stolen documents," instead of the small boxfulls or so that Pollard actually passed.) In the long run, though, the issue is not how many boxes Pollard passed, but whether anything he gave Israel did harm to America.
After the government's "false flag" theory was blown up by the "blue stripe" discovery, the anti-Pollard members of the intelligence community had to come up with a new PR campaign for damage control. In order to justify Pollard's life sentence, they had to show that he did do some potentially catastrophic damage to America. What they came up with was a bit of a stretch. Pollard had given Israel a set of radio frequency guidebooks, a worldwide listing of short-wave radio bands. It takes a lot of time and money to compile one of these guides, but essentially they are just publicly available information, openly deduced by listening to who is talking to whom on which radio bands.
Seymour Hersh is a famous reporter and long-time friend. (I was his secret source in his 1983 book The Price of Power -- Kissinger in Nixon's White House (Summit Books). But Sy had his leg pulled on Pollard by his CIA sources, as a result of which Sy published a story in the New Yorker in January 1999 claiming that these radio guides were just about the crown jewels of U.S. intelligence. The truth is that certain portions of the guide had already been sold to the Soviets by the Walker spy ring, according to courtroom testimony, which also revealed that the Soviets thought so little of the guides' value that they did not even bother to ask their top spies, Ames and Hanssen, to steal the remainder of the set. Moreover, as previously noted, the government's own damage assessment report originally concluded that the loss of the guides was a minor matter.
So much for the crown jewels. If that is the best spin the intelligence community can come up with, Pollard is probably entitled to immediate release for time served. The truth is that without the "false flag" theory, and the accompanying "worst spy in history" hysteria, Pollard would probably have been served no more than five years in prison. He has already served 18 years.
After 9/11, though, I began to realize that Pollard's tale was only the beginning of a much bigger story about a major America intelligence scandal, which is the subject of a book I am now working on. Although Jonathan Pollard did not realize it, he had stumbled across the darkest secret in the Reagan administration's closet. It is one of the reasons that I am serving as the intelligence advisor on a trillion-dollar federal lawsuit filed in August 2002 against the Saudis on behalf of the victims of 9/11.
Pollard in fact did steal something that the U.S. government never wishes to talk about. Several friends inside military intelligence have told me that Pollard gave the Israelis a roster that listed the identities of all the Saudi and other Arab intelligence agents we knew about as of 1984. (This has been corroborated by Israeli sources, as well.) At that time, this list, known in intelligence circles as the "blue book," would have been relatively unimportant to the United States -- but not to Israel.
Since 9/11, however, Pollard's "blue book" is of profound interest to everyone, including the U.S. These particular agents are now a major embarrassment to the Saudis and to the handful of American spy chiefs who had employed these Saudi intelligence agents on the sly. Some of the names on this list -- such as Osama Bin Laden -- turned out to be leaders of terrorist groups, including the Muslim Brotherhood and what we now call Al Qaeda.
In hindsight, we now know that Pollard stole the one book -- that, incidentally, was alluded to in Weinberger's secret memorandum -- that unquestionably proves that the Americans knew as early as 1984 about the connection between the Saudis and terrorist groups.
How does this all fit together? During the Reagan-Bush administrations, the National Security Council wanted to throw the Soviets out of Afghanistan using Arab soldiers instead of American. It seemed like a good idea at the time, but no one thought about the long-term consequences. In imitation of the Soviet strategy of hiring terrorists, we asked the Saudis to recruit a proxy army of Islamic terrorists whom we would supply with guns and pay indirectly, according to intelligence sources. By having the Saudis hire the "freedom fighters," we could avoid embarrassing questions in Congress about giving the taxpayers money to known Arab terrorists.
In 1982, I went on "60 Minutes" to expose Nazi war criminals I had been assigned to prosecute who were then working for the CIA. It was one of those Cold War blunders. The CIA didn't have a clue it was dealing with Nazi war criminals. It thought they were "freedom fighters." In 1985, I ended up testifying before the U.S. House Judiciary Committee about Nazis on the intelligence payroll.
Sadly, the only lesson the intelligence bosses learned was to put the bad guys on someone else's payroll (the Saudis for one), and then reimburse them under the table. Because of my whistle-blowing during the early 1980s, the CIA was still pretty sensitive about hiring Nazi "freedom fighters" without background checks, so they were mostly kept out of the loop about the Arab terrorists hired clandestinely by the Saudis to fight the Soviets in Afghanistan.
The Soviets pulled out of Afghanistan in 1989. The naive Americans walked away from the Frankenstein monster they had created, but the cynical Saudis kept the terrorists on the payroll. From the Saudi perspective, it was safer to keep paying the terrorists groups to attack Israel, Bosnia or Chechnya rather than letting them all back into Saudi Arabia. As one U.S. intelligence bureaucrat cynically confided to me, "Sure we knew that the Saudis were giving money to terrorist groups, but they were only killing Jews, they weren't killing Americans."
In this "Keystone Cops" affair, one wing of U.S. intelligence was hunting terrorists while another winked at the Saudis' recruitment of them. I have spoken to numerous FBI and CIA counter-terrorist agents, all of whom tell a similar story. Whenever the FBI or CIA came close to uncovering the Saudi terrorist connection, their investigations were mysteriously terminated. In hindsight, I can only conclude that some of our own Washington bureaucrats have been protecting the Al Qaeda leadership and their oil-rich Saudi backers from investigation for more than a decade.
I am not the only one to reach this conclusion. In his autobiography, Oliver North confirmed that every time he wanted to do something about terrorism, Weinberger stopped him because it might upset the Saudis and jeopardize the flow of oil to the U.S. John O'Neill, a former FBI agent and our nation's top Al Qaeda expert, stated in a 2001 book written by Jean Charles Brisard, a noted French intelligence analyst, that everything we wanted to know about terrorism could be found in Saudi Arabia.
O'Neill warned the Beltway bosses repeatedly that if the Saudis were to continue funding Al Qaeda, it would end up costing American lives, according to several intelligence sources. As long as the oil kept flowing, they just shrugged. Outraged by the Saudi cover-up, O'Neill quit the FBI and became the new chief of security at the World Trade Center. In a bitter irony, the man who could have exposed his bosses' continuous cover-up of the Saudi-Al Qaeda link was himself killed by Al Qaeda on 9/11.
Congress has been told repeatedly that American intelligence never knew the identities of the Arabs who threw the Soviets out of Afghanistan. Inadvertently, Pollard stole the ultimate smoking gun that shows exactly what the leaders of our intelligence community knew and when they knew it. The "blue book" Pollard stole flatly establishes that all the dots were connected many years before 9/11, and the only thing the intelligence chiefs did competently was cover up the fact that we had long known about the Saudi-terrorist link.
In the ultimate irony, Pollard may have to be let out of prison to testify before Congress about the negligence of his own superiors. Like O'Neill, Pollard had tried to warn his superiors that a wave of terrorism was coming out of the Middle East, but no one would listen. Pollard himself told me this. Pollard has admitted -- to me and in writing to President Clinton -- that he was wrong and stupid in passing the information to Israel on his own, but in the long run he may have committed the most unpardonable sin of all: He was right and the bureaucrats were wrong.
Pollard never thought he was betraying his country. And he never did, although he clearly violated its laws. He just wanted to help protect Israelis and Americans from terrorists. Now in prison for nearly two decades, Pollard, who is in his late 40s, grows more ill year by year. If, as seems likely, American bureaucrats choose to fight a prolonged delaying action over a new hearing, Pollard will probably die in prison. There are people in power inside the Beltway who have been playing for time. Time for them ran out on 9/11. Sooner or later, they are going to be held accountable. I hope that Pollard lives to see it.
This article originally appeared in Moment Magazine.
For more on Jonathan Pollard, see: The Spy Who's Locked out in the Cold.
Author Biography:
During the Carter and Reagan administrations, Attorney John Loftus was a prosecutor with the Justice Department's Nazi War Crimes Unit. There he discovered Top Secret documents revealing that the Nazis he had been assigned to prosecute were working for NATO intelligence. He resigned from the Justice Department and exposed the shocking Nazi scandal on an Emmy Award winning segment of 60 Minutes. He is an international best-selling author who now lives with his wife and daughter in St. Petersburg, Florida, where he volunteers as the first Irish Catholic President of the Florida Holocaust Museum.
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