The Jonathan Pollard matter just won’t go away — and for good reason.
The most recent flurry of interest surrounding the case was fueled this week by the news that the White House might be moved, at long last, to release Pollard from prison. But the problem with the case — however troubling the case is for American Jews of many stripes — is that the 29 years of Pollard’s incarceration have been characterized by a pattern of innuendos, misrepresentations, half-truths and outright lies, with here and there a sprinkling of fact.
The following “Myths and Facts” will shed some light on some of the more difficult questions in the case, and will clarify some of the issues.
Myth: Jonathan Pollard’s sentence was unduly severe relative to others who were convicted of even more serious crimes. Pollard is the only person in recent years, convicted of espionage, to be sentenced to life imprisonment.
Facts: First, under guidelines in place at the time of Pollard’s sentencing in 1987, a person who was sentenced to life was eligible for parole after serving ten years of the sentence; a person receiving a term of years had to serve one-third of that term before becoming eligible for parole. Sentences meted out to most persons convicted of espionage during the 1980s were harsher in reality than Pollard’s. James Hall was sentenced to 40 years; Jerry Whitworth was sentenced to 365 years; and so on.
Moreover, Pollard’s sentence was harsh, but hardly the harshest meted out to a convicted spy in the 1980s. That distinction went to the Walkers, who were convicted of the same crime as was Pollard. Arthur Walker: three life terms plus forty years; John Walker: life imprisonment.
Finally — and most important — comparisons between Pollard’s sentence and sentences meted out to others convicted of espionage are inappropriate. We, in the United States, do not have a “comparative system.” Each case is sui generis and is weighed separately based on the evidence brought in it. The quantity and significance of material compromised by the spy varies from case to case. Evidence in these cases is classified. There is no way of knowing the seriousness of the security breach in a given case.
Spying for a Friendly Country
Myth: The fact that Pollard spied for Israel and provided information to Israel that ought to have been shared by the American government should have been taken into account, resulting in a more lenient sentence.
Facts: First, as a legal matter, the law on espionage does not distinguish between allies and enemies.
Second, espionage conducted even on behalf of a friendly nation compromises national security interests and could endanger the lives of American agents. As one of the lawyers in the case said, “Spying for a “friendly? Once it’s out there, it’s out there — open to anyone, friend or foe.”
Third, the question of whether the classified information ought to have been shared as a matter of course between the two allies — America and Israel — is a legitimate one, but it is an issue that is appropriately worked out between the two governments.
The Weinberger Memorandum
Myth: Then Secretary of Defense Caspar Weinberger was a prime cause of Pollard’s life sentence because he inappropriately intervened in the case by submitting a memorandum exaggerating the severity of Pollard’s offenses.
Facts: As secretary of defense, Weinberger was obliged to submit a pre-sentencing memorandum assessing the damage, actual and potential, resulting from Pollard’s espionage. Weinberger concluded that Pollard’s crimes “demand severe [not ‘maximum’] punishment.” Weinberger did not call for the most severe sentence possible, or for life.
The Plea Agreement
Myth: The plea agreement, under which Pollard pleaded guilty, was violated by the government, and therefore Pollard should have been permitted to go to trial.
Facts: This is not entirely a myth. It has been long known that the plea agreement, which could have resulted in a lesser sentence, may have been violated. Indeed, Jewish communal agencies, citing this issue, called for the United States Supreme Court to review U.S. v. Pollard. The High Court declined to do so.
But at bottom, honoring a plea agreement is dependent on the judge. In this case, the sentencing judge was Aubrey Robinson (a good friend, by the way, of the Jewish community), who had a reputation as a “hanging judge.” No surprise, then, that he sentenced Pollard to life.
Myth: The “establishment” Jewish groups were against Pollard.
Facts: Jewish organizations intervene in a matter such as this if there is a finding that anti-Semitism, discrimination, or civil-rights or civil-liberties abuses — all clearly threshold issues for the involvement of Jewish groups — are factors. National Jewish organizations, under the umbrella of the National Jewish Community Advisory Council, at the time scrupulously and doggedly examined every allegation of wrongdoing or injustice in the case. Open and democratic discussions — including with government representatives at the highest level, and with lawyers on both sides of the case, and with other interested parties — were held on the matter. Anti-Semitism and discrimination were not factors in Pollard’s conviction or sentencing.
But the issue is more basic. At bottom, it was not for national Jewish organizations to intervene in the case on the basis that it was asserted by some of Pollard’s advocates that he was (as the rhetoric goes) “a hero of the Jewish people.” Pollard was suborned by the Israelis, was well-paid for his efforts, and he committed serious crimes.
My own view is that Pollard should no longer be in jail. Pollard, misguided and misled, was a criminal, and he did his time. But the true villains of this drama are not Pollard or his ex-wife Anne, but the Israelis, who seduced, suborned, and corrupted Jonathan Pollard — and who shamefully slammed the door in his face when it was clear that he was about to be arrested.
But mythology takes on a life of its own — and it’s a long life.
Jerome Chanes was national affairs director of the National Jewish Community Relations Advisory Council and is a fellow at the Center for Jewish Studies of the CUNY Graduate Center