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August 10, 2015 10:44 am

Jonathan Pollard’s Release Doesn’t Erase 30 Years of Injustice

avatar by Irwin Cotler

Jonathan Pollard is due to be released in November. Photo: PD.

Jonathan Pollard is due to be released in November. Photo: PD.

The official announcement that Jonathan Pollard will be paroled on November 21, having served 30 years for transmitting classified American documents to the Israeli government, is a welcome – if much-belated – development. The fact of his prospective release, however, must not be allowed to overshadow the injustices of his life sentence – and 30-year prison term – as set forth below.

First, Pollard’s sentence of life imprisonment in 1985 was then – and remains today – unprecedented, excessive, grossly disproportionate and unfair, and amounts to a denial of equality before the law. No other American who has pleaded guilty to spying for a U.S. ally has ever been sentenced to life. In such cases, the usual sentence is no more than eight years, with actual time served averaging two to four years, or less.

Second, beyond being unjust in itself, the sentence breached the plea bargain according to which prosecutors had agreed not to seek life imprisonment in return for Pollard’s guilty plea, his cooperation with authorities, and the waiving of his right to trial by jury.

The plea also saved the government the problems of conducting a trial involving highly sensitive information, and at which Pollard might well have been acquitted of the more serious charges. Indeed, Judge Stephen F. Williams of the U.S. Court of Appeals for the D.C. Circuit later described this breach as a “complete and gross miscarriage of justice.”

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Third, Pollard’s sentence was imposed as a result of the submission – after the plea bargain and again in violation of it – of a prejudicial, ex parte affidavit to the sentencing judge by then-Secretary of Defense Caspar Weinberger. Pollard never saw the Weinberger Declaration, nor was he able to challenge it. In his submission, Weinberger claimed that Pollard had compromised American national security, was guilty of “treason,” and should never be released.

However, in a 2002 interview, Weinberger admitted that, in retrospect, the Pollard matter was “comparatively minor.” Nevertheless, the secret Weinberger Declaration has continued to underpin the falsity of the allegations against Pollard, and to undermine the validity of his case and defense, whether in seeking appellate review, or clemency or parole.

Fourth, senior U.S. officials who served with Weinberger have since accused him of harbouring an intense bias against Israel that unjustly impacted Pollard’s punishment and sentence. For example, Robert C. “Bud” MacFarlane, who served as U.S. National Security Advisor in the Reagan Administration, and worked closely with Secretary Weinberger, wrote in 2012 that “the affidavit filed by former Secretary of Defence Casper Weinberger was surely inspired in large part by his deeply held animus toward the State of Israel.”

Dr. Lawrence J. Korb, who served as Assistant Secretary of Defence under Weinberger during the period that included Pollard’s arrest, wrote in 2010 that “I can say with confidence that the severity of Pollard’s sentence is the result of an almost visceral dislike of Israel … on the part of my boss at the time, Secretary of Defence Casper Weinberger.”

Fifth, Pollard has repeatedly and misleadingly been accused of treason – by the media, as well as by officials of the departments of Defense, State, and Justice – despite never having been charged with it, and often by reliance on the secret – and discredited – Weinberger declaration. Indeed, as recently as Pollard’s parole hearing in July 2014, the prosecution falsely asserted – and the Parole Commission accepted without review – that Pollard’s actions were “the greatest compromise of U.S. security to that date.”

Sixth, false accusations have likewise been made by U.S. government agencies that Pollard compromised intelligence operations in Eastern Europe and was consequently implicated in the deaths of American informants. Yet, these accusations were never part of his indictment, and no evidence for them has ever been adduced. In fact, the architect of these treasonable acts, and the source of the disinformation against Pollard, was none other than senior CIA official Aldrich Ames, who pleaded guilty to them in 1994.

Seventh, the declassification in 2012 of a 1987 CIA damage assessment concerning Pollard confirms, in the words of Lawrence Korb, that “Pollard did not divulge the most sensitive U.S. national security programs” and “provided intelligence only on the Soviet Union’s activities in the Middle East.” The document also reveals that, whereas the sentencing judge overturned the plea agreement because Pollard had spoken to the media in supposed violation of the agreement’s terms, the interview had in fact been authorized by the government.

Eighth, Pollard was deprived early on of his right to effective legal counsel, as his attorney at the time of sentencing neglected to file a notice of intent to appeal following the prejudicial sentencing hearing. Pollard was therefore precluded from appealing his life sentence.

Ninth, virtually everyone who held a senior government position and dealt with the ramifications of what Pollard did at the time supports his release. They include former Secretary of State George Shultz, FBI director and subsequent CIA director William Webster, and respective chairmen of the senate intelligence and house intelligence committees, David Durenberger and Lee Hamilton. Indeed, Senator Durenberger has expressed his “surprise at the sentence given Jonathan Pollard compared to others” and argued that “the harshness of Pollard’s sentence … was uncalled-for.”

Finally, many of these injustices were compounded at the time of Pollard’s unsuccessful 2014 parole application. In particular, secret evidence from the Weinberger affidavit was invoked by the prosecution and relied upon by the Parole Commission, despite the fact that neither Pollard’s attorneys – who had security clearance – nor the members of the Commission themselves were permitted to view the document on security grounds.

In the words of Pollard’s lawyers, the 2014 hearing was “a disingenuous and deeply flawed parole process that reached an unsound conclusion based on discredited 28-year old statements buried in a secret file, and in complete disregard of compelling contrary evidence.”

Ultimately, it must be remembered that Pollard fully honoured the very plea agreement that the government violated; he fully co-operated with authorities; he has expressed remorse for his actions; he has been a model prisoner for 30 years; he is now aging and in deteriorating health; and most egregiously, he has repeatedly been falsely accused of a crime he did not commit – treason – and unjustly sentenced to life in prison for the crime he did commit.

As such, while Pollard’s release on parole this Fall will end his long-standing wrongful imprisonment, it will not in itself rectify the litany of wrongs to which he has been subjected. In the interest of justice, the injustice of Pollard’s excessively unfair and severe treatment must be acknowledged and denounced.

Irwin Cotler is a former minister of justice and attorney general of Canada, and emeritus professor of law at McGill University.

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