Israel And Freedom For Jonathan Pollard

Jerusalem ---- April 28......Jonathan Pollard is one of the most polarizing figures of our times. Pollard, a former intelligence analyst in US naval intelligence, has now served 20 years of a life imprisonment sentence following his conviction for transferring classified US intelligence materials relating to Arab ballistic missile and nonconventional weapons programs to Israel from May 1984 until his arrest in November 1985.

For his contribution to Israel's security and for his long suffering in prison, Israel considers Pollard a national hero. He is commonly considered the source of Israel's preparedness for the Iraqi missile attacks during the Gulf War. Israelis across the right-left and religious-secular divide are basically unified in their hope to greet Pollard in Israel as a free man. For many American Jews, Pollard is reviled as a traitor.

Since his arrest, a cloud of suspicion has hung over all Jews employed in the Pentagon, the State Department, the US military and intelligence services. Time after time, baseless allegations surface of American Jews spying for Israel. In spite of Israel's strategic alliance with the US, American intelligence agencies define Israel as a "country of concern" for intelligence breaches and American Jews are under constant, often malicious scrutiny. All a person has to do to expose the deep frustration of Washington Jews with the constant discrimination by intelligence agencies is mention the name "Pollard." Immediately he will be showered with bitter statements like, "If it weren't for that traitor, we wouldn't be in this position," and, "I hope he rots in jail."

For the past 12 years Pollard has been incarcerated in Butner Federal Prison in North Carolina. He was transferred to Butner from Marion Federal Prison in Illinois where he was held in a subterranean cell in solitary confinement for seven years. Pollard's treatment, like his life sentence, is unprecedented in the history of US espionage investigations.

Never has a spy in the employ of a friendly country received such a sentence. On average, spies working for countries considered US allies receive between 4-7 years in jail. Aldrich Ames, the most notorious spy in recent history, who as head of the CIA counter-intelligence department compromised all US intelligence emanating from the Soviet Union for over 15 years and caused the death of more than 10 US agents operating in the Soviet Union – while sentenced to life in prison – was never placed in solitary confinement for stretches comparable to Pollard.

I went to see Jonathan Pollard last week. During a two-and-a-half-hour meeting, we spoke at length about his espionage, the conditions of his imprisonment, his feelings toward the US, Israel, the Jewish people and his hopes for the future. Pollard is now 50 years old. He grew up in South Bend, Indiana. He studied political science, economics and classics at Stanford University and was studying towards a doctorate in military history at the Fletcher School of Law and Diplomacy at Tufts when he was recruited in 1979 by Naval Intelligence. Pollard first visited Israel in 1971 for a summer program at the Weitzman Institute.

He refers to his Jewish background as "modern-Orthodox, American style. The centrality of Israel for the Jewish people was emphasized." "I had thought constantly about aliya," he says, "But it's hard to pick up and leave the 'Golden Medina.' My parents are proud Americans. My father is a decorated Army officer. He carries a copy of the US Constitution in his pocket. But when I joined Naval Intelligence my father warned me that it's not a good place for a Jew. There is a lot of anti-Semitism there. But even when I saw it, I thought it would be better for me to stay."

Today at Butner, Pollard is employed as a window washer. His life is one of constant terror. "I will give you an impressionistic description of my life. It involves constant noise, constant violence; profanity – every conceivable type of profanity. There is no place to be quiet or to find quiet – to read. You really have to be disciplined not to be provoked. You need to be disciplined to see when a situation is getting out of hand and to get away as quickly as possible. I have to be ready if my door opens at 2 in the morning. "I live in a small room, not in a cell, with a roommate. My room is so small that when I sit on my bed and stretch out my arms I touch both of the walls. And it is impossible to lock the door. When I am not washing windows I spend my day reading and listening to the radio – to NPR and the BBC." The prison has television sets set up in common rooms for inmates. His fellow inmates include murderers, rapists, armed robbers, pedophiles and other violent criminals.

On September 11, Pollard was in the TV room, watching CNN. What did you feel when you saw the World Trade Center and the Pentagon attacked? "I felt sick to my stomach. The worst thing for me was that a lot of the Muslim inmates here greeted the attacks by saying Alla Akhbar and cheering." But why would it bother you to see the US under attack? After all, you betrayed this country. To this, Jonathan gave me a look of profound sadness and said, "I fell in love with two women – Israel and the US. It doesn't work in private life, and it doesn't work in politics. My reaction to September 11 was as an American. As an American, I believe that this country is guarding the gates of Western civilization from the barbarians."

In 1983, shortly after Israel and the US signed a memorandum on intelligence sharing, then deputy director of the CIA Admiral Bobby Ray Inman unilaterally breached the agreement by stopping all intelligence transfers to Israel on Arab and Muslim states not directly bordering Israel. This included Iraq, Iran, Libya, Tunis and Pakistan. Inman was hired after leaving the agency by a company called International Signal and Control. The company's owner, James Guerin, was imprisoned later for transferring military technology to Iraq and South Africa.

Pollard, who was privy to the now embargoed intelligence, believed that Israel faced the specter of chemical and biological warfare attacks from these countries. Pollard claims that he considered all legal venues for ending the embargo but felt that informing the media, testifying before Congress or involving the US Jewish leadership of the situation would all be ineffective. He claims also that "there was an incident during Operation Peace for the Galilee that provided me with my introduction to the US-Israel 'special relationship.' I saw the incredible cynicism with which the US views Israel. It flew in the face of everything that I thought was the point of the relationship. The way I viewed the world was destroyed. I had never before thought that my loyalties towards the US and Israel were in contradiction. But then I understood." What did you understand? "I understood that we are alone."

Pollard argues that his decision to spy for Israel, and thus betray the US, stemmed from his conviction that he "was preventing a second Holocaust." One can question whether it was necessary for him to prevent it personally, or whether he could simply have quit his position, informed the responsible Israel officials of the mounting dangers and let Israel – with its intelligence agencies and military -- contend with the issue as a sovereign state. But the fact is that Pollard chose himself for the task and Israel, too, in employing Pollard as its agent, chose him for the task.

Over the 18-month period that Pollard worked for Israel, he provided suitcases of documents to his handlers on a regular basis. Rafi Eitan, Israel's master spy who served as Pollard's chief handler from his position as head of the Office for Information Cooperation at the Israeli Embassy, told him that his information was discussed at cabinet meetings and Pollard understood that his main contractor was then Maj.-Gen. Ehud Barak, who then served as Commander of Military Intelligence. Yet, when Pollard was arrested, Israel did whatever it could to deny its connection to him. From the moment then prime minister Shimon Peres ordered embassy security officers to physically eject Pollard and his wife-at-the-time Anne from the embassy, Israel has done everything in its power to distance itself from Pollard.

It wasn't until 1995 that he was granted Israeli citizenship and it wasn't until 1998 that Israel officially recognized that Pollard was its agent. Binyamin Netanyahu was the only prime minister to have made a serious effort to get Pollard released. Prime Minister Ariel Sharon has abjectly refused to take any action on Pollard's behalf.

For Pollard, who expected to be protected by Israel if caught, it is the treatment he has received from the Israeli government that surprises and disturbs him more than the harsh and disproportionate punishment that he has received from US authorities. "I had two particularly memorable terrible days since I was arrested. The first was when the FBI showed me transcripts of statements that Israeli officials made shortly after my arrest. It was clear that the Mossad had three goals. They wanted to put all the blame on the Office for Information Links and Rafi Eitan, they wanted to protect AIPAC at all costs and they wanted to bury me. It was the Mossad that was the source of all the disinformation about me and my character. The lies that I used cocaine and was a mercenary, selling secrets to countries other than Israel, it all came from them.

"Later, in 1995, a Mossad agent came here to see me and suggested that I kill myself. I said I would die for Israel not for some group of toadies. "The Israelis claimed that mine was a rogue operation. But this was a total lie. Not only did the senior political and military leadership know what was happening, Ariel Sharon tried to use me for his own ends. Rafi Eitan was Arik's man. And he asked me to collect political intelligence for Sharon – what people in Washington were saying about him and the like. I refused. "But what hurt me the most was when I saw the unclassified version of the Eban Report. [The Eban Report was a report of the Knesset's sub-committee on intelligence services investigation into the Pollard affair that was published in 1987.] It made me almost physically ill.

The report includes a summary of a midnight conversation between [the prime minister] Shimon Peres and [the US Secretary of State George] Schultz about a week after I was arrested. Schultz asked Peres to return the documents I took and Peres agreed but made Schultz promise that the documents wouldn't be used against me and Schultz agreed. "No one ever told me about this agreement. I could have used it in my defense.

It is the country's responsibility. It had standing before the court. Israel is the only country to participate in the prosecution of its own agent. Several years later [in 1990] Sharon attacked Yitzhak Shamir for going along with my abandonment. But that is what Sharon is doing now." Although sources close to Sharon claim that Pollard may be released on the sidelines of the destruction of the Jewish communities in Gaza and northern Samaria and the pullout of IDF forces from the areas, White House sources knew of no request on Sharon's part to release Pollard from prison. Ahead of Sharon's visit to the White House last spring, 112 Knesset members, including Sharon himself, signed a letter to President George W. Bush asking him to release Pollard from prison. Sharon refused to deliver the letter to Bush.

This month, ahead of Sharon's meeting with Bush at his ranch in Texas, all current and former Israel chief rabbis signed a letter to Bush requesting that he free Pollard. Again, Sharon refused to deliver the letter to Bush during his meeting. After meeting with Pollard, I contacted James Woolsey, the former director of the CIA. Woolsey told me that upon taking up his position in 1993 he reviewed Pollard's entire file carefully. "This man would not be my first candidate for clemency, but 20 years is a long time.

As a general proposition, one dimension of this is that a substantial penalty has been paid, so that the element of deterrence is dealt with. I do think there is a consideration here. Israel and the US, Australia, Japan, Poland and Britain are all in this war on terror together. We need to pay attention to the concerns of the citizens in fellow democracies. I would feel this way if it were Japanese espionage. We have to have a degree of sympathy for the sentiments of citizens in a fellow democracy." At the same time, Woolsey was quick to explain, "This is not a recommendation for clemency." Woolsey also stated that Pollard was not suspected of having transferred secrets to governments other than Israel. In his view "the heart of the matter" was the US fear that Israel's own intelligence apparatus would be penetrated by hostile governments and that as a result the materials Pollard transferred would be picked up. This, he explained, "would present a danger to the US ability to collect intelligence.

The fear was that the Israeli government itself might have been penetrated, not that Pollard gave the information to anyone else." When Pollard speaks of his future, he says that he has been training himself to go into a non-security related field if released from prison and most of his reading materials are scientific. "I have an interest in alternative energy sources to replace oil and on water desalination." Is there any reason that the US should worry about security damage you may cause if released from prison? "There is no substantive American worry regarding my release. My life has been destroyed so deterrence has been achieved. Nothing I know and certainly nothing I would ever do would be antithetical to US interests. The bottom line is, I want to come home so I can be with my wife, my people and my land."

In the days that have passed since the interview it occurred to me that the reprehensible behavior of the Israeli government in the Pollard affair tops that of all concerned parties – all of whom have behaved reprehensibly. Aside from the anti-Semites who take pleasure in spewing Jewish conspiracy theories, Israel was the only side that gained anything from Pollard's espionage. The US gained nothing and Pollard lost everything. In shirking its responsibility for Pollard, Israel paved the way for the entire story being blown out of all proportion by opportunistic enemies of Israel and American Jewry for two decades now.

If Israel had resolutely stood by Pollard, then the aspersions cast on Washington's Jews would be far more circumspect than they are today and the US would have seen that Israel is an ally to be reckoned with, not a doormat to be stepped on at will. Pessah is the holiday of freedom. But for a nation to be free it must take responsibility for its actions, no matter how grave those consequences may be. In shirking its responsibility a nation is doing more than casting out the unwanted weight. It is casting off its own ties to freedom. Pollard said, "The abandonment of a nation begins with the abandonment of an individual."

If we wish to maintain our integrity as a free people, we can do so only by taking on the task of bringing Pollard home. He may be a hero and he may be a fool. However he is viewed, he is one of us and he has been discriminated against and persecuted because he helped Israel. And other Jews are being persecuted because we refused to defend him. It is time for us to take responsibility for Pollard because his imprisonment paves the road to our servitude.

INA Publisher's Note: The Israel News Agency believes that Jonathan Pollard was wrong for disseminating US secret information to Israel as a employee of an American intelligence organization and that he has more than paid his price. But Pollard was nothing more and nothing less than a symptom of paranoia, anti-Semitism and a severe lack of communications and trust between the US and Israel governments. Jonathan Pollard represents many things to many people - but one element remains clear - Pollard represented all that was wrong with Israel American relations over two decades ago.

Pollard should not be persecuted further for the past mistakes made by Washington and Jerusalem. Israel has and remains America's closet ally. Israeli blood drips almost daily to preserve American oil interests in the Middle-East and remains Democracy's front line against extremist religious Islamic totalitarianism . Pollard could have been any Jew who was committed to both Israel and the United States. He loved both nations. And served both nations - not as an adversary, but as an innocent pawn. He was used by both governments and now appears to be totally thrown away.

In 1983, President Ronald Regan signed an agreement with Israel, America's ally, promising to give Israel all information dealing with its national security. In 1985 Jonathan Pollard, a civilian naval intelligence officer became aware of information concerning Iraqi and Syrian nuclear and biological weapons, information which would affect Israel's security. When Pollard asked why this information was not being sent to Israel, under the agreement, he was shrugged off and ignored.

In his role as a US Naval Intelligence analyst he passed valuable security information to Israel - not for money or ego but rather out of a desperate sense for Israel's very physical survival. We ask why did Pollard have to pass this information to Jerusalem - why wasn't the White House, the CIA and the State Department doing so? Pollard should not be blamed for the actions he took, rather the US and Israel administrations are directly at fault.

This editor has been warned by the US Jewish establishment not to openly support Jonathan Pollard's struggle to become a free man after serving over 20 years in prison. I say to the Jewish establishment: "be ashamed of yourselves. Pollard is a Jew, he is an Israeli, you don't leave a soldier in the field - even more so when it was "friendly fire."

On September 13, 2001, this editor, with full NYPD press credentials was covering 9/11 was he was detained at Ground Zero and interrogated by the FBI. They wanted to know what I knew about the attack before it took place. After 6 grueling hours of questioning, someone realized that I was not another Jonathan Pollard. I was not Mossad and I was released after the FBI took my press credentials and film. Should I now blame Jonathan Pollard for the behavior of my government in Washington? No way.

The FBI did their job, and though it was uncomfortable and traumatic for me as a loyal American citizen, as one who served in a police unit in New York, worked in the World Trade Center for 8 years, and volunteered to defend the US in Iraq in the US military, I salute the FBI's actions in defending the American people.

But for those who say that Pollard should rot in jail, I simply state: Pollard is not the problem - you are! You are a disgrace to every Jew, to every citizen who embraces democracy and takes an active role in the war against global Islamic terrorism. For being impotent, for not defending Israel's basic right to be secure and for not placing blame where it belongs - the US and Israeli administrations at the time of Pollard's arrest and the present inaction of Israel Prime Minister Ariel Sharon in ignoring Pollard and licking George Bush's toes. I have great respect for George Bush, but not in how he walks over an Israeli Prime Minister.

The reprehensible behavior of Ariel Sharon and the present Israeli government in the Pollard affair is one of the greatest disgraces Israel has ever suffered. Why is it that Pollard's handlers were able to quickly leave the US while leaving Pollard to twist in the wind? If Pollard was responsible for a misdemeanor - then United States and Israel are guilty of an ongoing felony.

Lastly, I ask, if the United States of America and Israel are such intimate friends, then why do we allow this issue to linger? It only serves the public relations, spin and incitement of those countries and Islamic terrorists who attempt to divide us - barbarians which have attacked and murdered countless innocents on buses and restaurants in Israel and those who perished in the World Trade Center and Washinton's Pentagon. The time to release Pollard is now and let this action serve as a shining and fresh example to our enemies as to the extent of the friendship and cooperation which exists today in 2005 between both democracies.

This thread was NOT created to divide Americans and Israelis! This is a warm, rational discussion between the very best of friends.

No, it doesn't work that way. Clearly his sentence is disproportonate, but I don't lose much sleep about Pollard. The problem is our leniency with everyone else. I'll just repost one of my previous comments.

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It's clear his sentence is disproportionate, though within the legal guidelines for the crime.

The real issue should be the release of the information leading to his sentencing, then we’d know if justice was done, no disrespect meant to the many freepers who have access to this classified info and discuss it on internet forums. According to the NIS, it’s been declassified since the early 90’s. Interestingly his long standing attorney, Ted Olson, for whom I have a great deal of respect, supports its release, and thinks it would lead to his release. Joe DeGenova, the prosecutor, supports it’s release, and thinks it would end the controversy over his life sentence once and for all.

Secret evidence is sometimes necessary, but also the antithesis of our legal system. Weinberger’s letter to the judge, and the facts surrounding it should be made public.

Old articles, but IMO, two of the better descriptions of the issues.

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Pollard Has Been Punished Enough

March 8, 1994 - Theodore Olson, Esq. - The Wall St. Journal

It is plain than columnist Al Hunt and the anti-Pollard faction within the Clinton administration for whom he is giving voice do not like Jonathan Pollard (“President Clinton, Don’t Free the Traitor Pollard, February 24). But his rationale for opposing clemency is mostly misinformation and ignorance, and his conclusion implicitly concedes the shallowness of his convictions.

As Mr. Pollard’s attorney, I offer these counterbalancing facts:

First, the matter of motives and money. Mr. Hunt’s carefully chosen litany of phrases such as “big bucks,” “well-paid” and “well-heeled” produces a profoundly false impression. As Mr. Hunt knows, Mr. Pollard sought out the Israelis and volunteered to give, not sell, information to Israel about nuclear, chemical and biological weapons under construction by Iraq and others for use against Israel. Six months down the line, Pollard was persuaded to accept paltry sums - pocket change compared with what Washington journalists routinely receive for weekend television appearances. Intelligence services know that it is impossible to control idealists - and it is standard procedure to corrupt them with money. Mr. Pollard was wrong to acquiesce, but everyone who has studied the record objectively knows that he acted as he did because he could not stand the implications of silence in the face of another Holocaust, not for money.

Second, Mr. Hunt repeatedly uses the term “traitor.” That word describes one who commits treason, the only crime considered so egregious that is mentioned in our Constitution. It is defined by law as committing war against the U.S. or aiding its enemies. It is punishable by death. Mr. Pollard did not commit, nor was he charged with, treason. Even the government has admitted that is use of the word “treason” and “traitor” to describe Mr. Pollard was wrong and “regrettable.” The court that reviewed Mr. Pollard’s case, whose opinion Mr. Hunt quotes, said that the “traitor” could justifiably be called “rank hyperbole.”

Third, Mr. Hunt’s comparison of Mr. Pollard to the Aldrich Ames case is appalling. Mr. Ames allegedly aided the Soviet Union when they were implacable enemies of the U.S.: Mr. Pollard helped one of our closest allies. Mr. Ames is said to have betrayed American agents: Mr. Pollard told Israel about instruments of mass destruction against Jews. Mr. Ames purportedly took millions of dollars and was motivated by greed: Mr. Pollard gave defensive information to save a people that had been nearly exterminated 50 years ago. What can Mr. Hunt be thinking?

Fourth, Mr. Hunt has mischaracterized the court decision regarding the government’s violation of the Pollard plea bargain. Mr. Pollard’s appeal was rejected as untimely, not because it was lacking in merit. All three judges who considered the appeal expressed considerable skepticism concerning the government’s conduct. One of the three went so far as to call Mr. Pollard’s treatment “a fundamental miscarriage of justice.”

The fact is that the government blatantly betrayed Mr. Pollard and its written contract with him. It made three promises, and broke them all. It agreed to represent to the sentencing judge that Mr. Pollard’s cooperation had been of “considerable value” to “enforcement of the espionage laws,” but did precisely the opposite, denigrating the value and motivation for that compensation - listing it among factors “compelling a substantial sentence.” It promised to limit its sentencing argumentation to the “facts and circumstances” of Mr. Pollard’s offense, but instead heaped savage vituperation on his motives on his motives, character and “arrogance.” Finally, it agreed not to seek a sentence of life in prison, but obtained exactly such a sentence by, among other things, demanding a sentence commensurate with the crime of treason.

Fifth, Mr. Hunt rejects as “bogus and irrelevant” the assertion that Mr. Pollard’s sentence was excessive. He could not be more wrong. Mr. Pollard has served more than eight years, mostly in solitary confinement in the nation’s harshest prison. No one who gave defense information to an ally has ever been punished so severely. The government did not even charge him with harming or having reason to know that his actions would harm the U.S. Once again, Mr. Hunt has outpaces Mr. Pollard’s prosecutors by pressing to maintain a level of punishment that the prosecutors promised not to seek.

Sixth, it is curious that Mr. Hunt thinks that the information Mr. Pollard gave away “was so sensitive that officials still insist they can’t provide specifics.” What officials? The Office of Naval Intelligence has said that much of Mr. Pollard’s information “was declassified during the Gulf War.” Mr. Pollard’s chief prosecutor has urged publicly that it all be declassified.

Finally, after all of Mr. Hunt’s rhetoric, his main grievance seems to be that Israel has failed to “come clean and acknowledge what a despicable act Pollard performed.” If it did so, he concludes, then “clemency [would] be in order.” This is an amazing conclusion because Mr. Pollard himself has admitted that what he did was wrong and has expressed great remorse for his actions. And two successive Israeli prime ministers have put in writing formal requests for mercy - not forgiveness - for the Pollard affair. The significance of these extraordinary official requests cannot have been lost on President Clinton - who, incidentally, may not be anxious to acknowledge publicly that the U.S. has spied on Israel. What more does Mr. Hunt want? Some sort of Chinese Communist public act of self-abasement?

There is more, but too little space to say it all. Defense Secretary-nominee Bobby Inman has publicly admitted that he cut off Israel from promised defensive information as retaliation for Israel’s destruction of Iraq’s nuclear reactors. (Maybe Mr. Hunt can tell us how many America soldiers would have died in the Persian Gulf had Israel not taken that action.) Mr. Pollard stepped into the breach and opened the spigot that Mr. Inman had closed. He had no right to do so, but voices as diverse as Cardinal Law, Nobel laureate Elie Wiesel, Benjamin Hooks, Father Drinan, Sen. Carol Mosely-Braun, Pat Robertson, dozens of Members of Congress, the city councils of New York, Los Angeles and Chicago, and two Israeli prime ministers have pleaded for an end to his punishment. Apparently many officials at State, Justice and the White House now agree.

The fundamental issue is when we can stop punishing a man who broke the law to expose a massive, malignant and malicious arms buildup so that a beleaguered people could defend themselves from weapons of terror and mass destruction. It might take some courage from President Clinton to do the right thing, but Mr. Pollard has been punished enough.

Theodore B. Olson is the former lead attorney for Jonathan Pollard.

Theodore B. Olsen Esq.

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The document below was written by a former Pollard attorney, Theodore Olsen, to counter a 1993 NJCRAC position paper on the Pollard case. The document is as relevant today as when it was originally written. Many of the old lies that it deals with are still being circulated today by the same Jewish sources.

Mr. Lawrence Rubin

Executive Vice Chairman - NJCRAC
National Jewish Community Relations Advisory Council
443 Park Avenue South
New York New York 10016-7322

April 9, 1993

RE: Jonathan J. Pollard

Dear Mr. Rubin:

As you know, we represent Jonathan J. Pollard. We have received a copy of the Jerome Chanes NJCRAC memorandum of March 23, 1993 disseminated to NJCRAC and CJF member agencies entitled "The Pollard Case: Myths and Facts." The Chanes memorandum states that it is intended to "provide accurate information" about the "substantive issues" involved in the Pollard case. However, it contains many materially inaccurate and damaging statements concerning Mr. Pollard and his case. We therefore request that you circulate this letter as soon as possible to all of the member agencies that received the Chanes memorandum

1. Pattern of Misrepresentation

The "Myths and Facts" memorandum states that there has been an "unfortunate pattern of misrepresentation" concerning the Pollard case. This regrettable and entirely gratuitous innuendo is apparently intended to accuse Mr. Pollard's supporters of misrepresentations. It is not true. Naturally, in any highly visible case such as this involving many people working to achieve a common objective, there may be misconceptions that develop. But the Pollard supporters have made every effort to supply scrupulously accurate information concerning his case. In fact, the NJCRAC memorandum contains more errors and misleading perceptions than anything we have seen. That is why it is so important for you to correct it by distributing this response.

2. Disproportionality of sentence

Mr. Pollard's sentence of life in prison is grossly disproportionate to punishments in comparable cases. Your wholly inaccurate and distorted rejection of this fact ignores both the facts and fundamental principles of our criminal justice system.

You assert that "comparisons between Pollard's sentence and sentences meted out to others . . . are inappropriate," and that such an analysis of the proportionality of Mr. Pollard's sentence is improper as a jurisprudential matter. That, of course, is nonsense It is a fundamental principle of justice and jurisprudence that the law should treat similarly situated individuals similarly and that punishments, insofar as possible, should be relatively equal and proportionate. The fact that Mr. Pollard's sentence is completely out of scale with those imposed for comparable offenses is a highly salient consideration in his efforts to seek a commutation of his sentence.

Moreover, the Supreme court of the United States has held as a matter of constitutional "principle that a criminal sentence must be proportional to the crime for which the defendant has been convicted-" Solem V. Helm, 463 U.S. 277, 290 (1983) (emphasis added) . The Court has struck down as unconstitutional punishments that are "significantly disproportionate to [the] crime," id. at 303, based on a comparison "with sentences imposed on other criminals" Id. At 292; see also Harmelin V. Michigan, 111 S. Ct. 2680, 2702-05 (1991) (Kennedy, J., concurring) (reiterating that the constitution forbids "extreme sentences that are 'grossly disproportionate' to the crime") - It is well recognized that disproportionality in sentencing when compared to others convicted of similar crimes is "fundamentally unfair," and accordingly, it "has also been a fundamental part of . . . the clemency philosophy." Kobil, The Quality of Mercy Strained: Wrestling the Pardoning Power from the King, 69 Tex. L. R. S69, 627 (1991).*

[*NOTE: For example: President Carter commuted the 20 year sentence of Watergate conspirator G. Gordon Liddy after 4 years and 3 months because Liddy had served much more time than the other Watergate participants. Id. The reason given by the White House Counsel was that "[it] was a clear case of unfair disparity." Id. (citations omitted).]

You also argue that Mr. Pollard's sentence was not disproportionate. But that is clearly incorrect. As thoroughly documented in Mr. Pollard's commutation application, his sentence was manifestly inconsistent with the punishment historically imposed for disclosing intelligence information to an ally of the United States. Indeed, the more than seven-year period that Mr. Pollard has already served is much closer to the typical sentence for comparable offenses. The only other life sentences imposed for espionage in the United States of which we are aware -- including each of the instances cited in your memorandum -- involved individuals who spied for the Soviet Union (or Eastern block countries that were under its control) during the Cold War. We believe that Mr. Pollard is the only person in the history of our Nation to receive a life sentence for giving information to an ally.

3. The Pertinence of the Fact that Mr. Pollard Spied for a Close Ally

Your memorandum asserts that it is irrelevant that Mr. Pollard provided intelligence information to Israel, one of the United States closest allies, as opposed to a country that is hostile to the United States. That assertion is legally incorrect and morally perplexing. While it may be a crime to disclose any classified information to anyone, both the law and society recognize the difference between efforts to harm the United States by giving information to its enemies and supplying data to an ally to help save the lives of victims of aggression.

You contend that "as a legal matter, the law on espionage does not distinguish between allies and enemies. . . ." But the law, including the Constitution of the United States most certainly does make such a distinction. The most serious espionage crime is treason, which, unlike Mr. Pollard's offense, is punishable by death, and is defined explicitly in the Constitution as consisting "only in levying war against [the United States), or in adhering to their Enemies [or] giving them Aid and Comfort." (emphasis added) . The statutes on espionage also recognize that providing information to an enemy is different in kind from and more reprehensible than supplying information to a country that is an ally of the United States, explicitly singling out the former for special treatment. Compare 18 U.S.C. 794(b) and 794(a); 18 U.S.C. 2382. The law distinguishes between those whose conduct occurred with reason to believe it may harm the United States. Mr. Pollard was not charged with that offense.

Moreover, the vastly harsher sentences imposed on individuals who have committed espionage against the United States an behalf of hostile nations demonstrate the obvious and fundamental principle that spying for an enemy is a far more egregious offense that deserves more severe punishment than providing intelligence data to an ally. As discussed above, life sentence have historically been reserved exclusively for individuals who have spied for countries that are hostile to the United States, while persons who, like Mr. Pollard, assisted allies have been subjected to far less severe punishments that more closely approximate the time that Mr. Pollard has already served in prison.

Your memorandum also misleadingly suggests that Mr. Pollard's reliance on the hostile nation/ally dichotomy is an attempt by him to excuse or justify his conduct. But that is not Mr. Pollard's point at all. Mr. Pollard acknowledges that he violated an important law of the United States. He pleaded guilty to that offense and agreed to cooperate fully with the government's investigation of his conduct. He has repeatedly expressed regret and remorse for his conduct and for any and all harm that his offense may have caused. Mr. Pollard is not arguing that his unlawful conduct in justified because he was motivated only by a desire to save lives.

But those who ask for an humanitarian commutation of Mr. Pollard's sentence to a severe punishment equivalent to the punishment already imposed are surely entitled to emphasize that Mr. Pollard's actions, admittedly wrong, was inspired by the desire to protect against violent aggression, to prevent a holocaust and to allow the people of Israel to defend themselves. This is a legitimate and important basis for the sentence commutation being sought from President Clinton.

4. Conditions of Incarceration

The fact that Mr. Pollard has been in solitary confinement for several years is not a "myth." And it is not a "myth" that Mr. Pollard has been incarcerated in the nation's harshest maximum security prison. Mr. Pollard did not ask to be placed in Marion prison -- where security measures are necessary to protect him from anti-Semitic prison gangs. Moreover, NJCRAC should understand that it is exceedingly difficult for Mr. Pollard to chronicle his specific, day-to-day prison experiences without exposing himself to repercussions. It should be obvious to anyone that solitary confinement in a prison containing the most violent and vicious criminals in the nation is not a circumstance that should be ignored or labeled as a "myth."

5. Parole

As a technical matter, Mr. Pollard was not sentenced to "life without possibility of parole," and parole may legally be considered in 1995. But your implication that the possibility of parole makes commutation unnecessary - is incorrect and misguided. The law enforcement and intelligence agency officials who will be given the opportunity to express themselves on the subject have indicated that they will oppose parole. Immediately following sentencing, the U.S. Attorney said that Mr. Pollard would "never see the light of day." Parole is a virtual impossibility under these circumstances. Your emphasis on the highly unlikely theoretical possibility of parole avoids addressing the circumstances and fairness of Mr. Pollard's incarceration. The fact is that he has been punished enough already.

6. The Government's Breach of the Plea Agreement

You agree in your memorandum that there are "legitimate questions" regarding the government's conduct at the time of sentencing in conjunction with its plea bargain.

However, you selectively omit a full discussion of the issue and the pertinence of it to Mr. Pollard's request for a commutation of his sentence.

The fact is that the government violated its plea bargain with Mr. Pollard in several fundamental respects. Nearly everyone who has examined the circumstances agrees with that conclusion. Indeed, this situation was severely questioned by the federal appellate court that reviewed Mr. Pollard's sentence. Despite the government's agreement in exchange for Mr. Pollard's plea of guilty to temper its rhetoric at the tide of sentencing, not to seek a life sentence, and to point out that Pollard's cooperation with the government had been valuable, the United States Court of Appeals for the District of Columbia Circuit found that the government had engaged in "hard-nosed dealings," Pollard v. United States, 939 F.2d 10110, 1030, cert. denied, 113 S. Ct. 322 (1992), and that the government's conduct was "problematic" and "troublesome." Id. at 1026. Dissenting Judge Stephen Williams concluded that the government violated material terms of Mr. Pollard's plea agreement, resulting in a "fundamental miscarriage of justice." Id. at 1032. And the government's forceful, bitter and antagonistic rhetoric produced the very life sentence it had agreed not to seek. Although the courts declined for technical reasons to set aside Mr. Pollard's sentence, there are no such constraints on the President's constitutional power to commute Mr. Pollard's sentence and thereby to redress the injustice of a sentence of life in prison despite the government's promise not to seek such a sentence.

NJCRAC's characterization of the facts is revealing. It says that Pollard's claim of a government breach of the plea bargain is "not entirely a myth". This is a very peculiar choice of words to describe an audacious, deliberate and manifest injustice.

7. The Secretary of Defense's Submission of a Memoranda During the Sentencing Process and Use of the Word "Treason"

Your brief discussion of the memoranda submitted by Secretary of Defense Caspar Weinberger during the sentencing proceedings and your astonishing efforts to rationalize Secretary Weinberger's use of the word "treason" to describe Mr. Pollard's conduct overlooks completely the improper nature and devastating impact that that submission had on Mr. Pollard's case.

The Secretary of Defense was not "obliged to submit a pre-sentencing memorandum." No law or custom requires it. It was an entirely gratuitous and intentionally forceful symbolic act by the nation's highest national security official.

The Secretary of Defense's memoranda did not relay objective facts about possible damage to national security caused by Mr. Pollard. Rather, the Secretary went to extraordinary and unprecedented lengths to volunteer extremely prejudicial and unjustified statements unjustified statements of opinion such as Pollard's "loyalty to Israel transcended his loyalty to the United States," and "the punishment imposed should reflect the perfidy of [his] actions (and) the magnitude of the treason committed," (emphasis added).

Judge Williams found that these statements amounted to a call for a life sentence in "all but name", and constituted a "flagrant violation of the (plea) agreement's spirit . . . . [T]he repeated use of superlatives implied an appeal for the maximum (sentence). Weinberger's reference to treason took the point further. Whereas treason carries the death penalty, and involves aiding the nation's enemies, Pollard was charged with espionage, carrying a maximum of life imprisonment and encompassing aid even to friendly nations - here, Israel . . . Weinberger's subtext was that the heaviest possible sentence was the lightest that was just."

Mr. Pollard did not commit treason, was not accused of treason and did not plead guilty to treason, and even the Government has now acknowledged that use of that terminology was both unwarranted and "regrettable". In fact, Mr. Pollard pleaded guilty to one count of violating 1a U.S.C. S 794, the transmission of national security information to a foreign government. Mr. Pollard's conviction was not even based upon that portion of # 794 that is predicated on an intent or reason to believe that harm to the United States would result from his conduct.

The Chanes memorandum's explanation that Secretary Weinberger was not using the word "treason" in its "formal and legal sense", is nothing short of outrageous. The Secretary was one of the nation's top officials, filing a formal legal document in the name of the United States under the supervision of the United States Attorney in a formal and extremely serious legal proceeding in a proceeding in a case that he, himself, characterized as very important. The word "treason" was intentionally used, as evidenced by the simultaneous use of the term "traitorously" by the Assistant United States Attorney. The assertion that the Secretary and the Government did not know the meaning of the word "treason" in that context is absurd. It was intended to secure a life sentence for Jonathan Pollard and it worked.

We will not comment an the remainder of the memorandum or the NJCRAC process. Those are matters for NJCRAC and its CJF member agencies. However, we do expect that NJCRAC will feel obliged to disseminate only accurate information concerning the Pollard case in the future.

In sum, your March 23 memorandum does not "provide accurate information" about the Pollard case. Rather, it either inaccurately portrays or omits entirely facts that we believe are vitally important and that would be of great interest to the NJCRAC and CJF member agencies. Your memorandum does not even mention that the government of Israel has specifically requested the President to grant Mr. Pollard's request for commutation. Such omissions seriously call into question the objectivity of your "fact-finding" efforts.

Very truly yours,
signed
Theodore B. Olsen

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