The Case Against Jonathan Pollard

Monday, 22 Aug 2011 02:14 PM

By Ronald Kessler

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As Israel steps up its campaign to free spy Jonathan Pollard, many Jews have been taken in by arguments that favor his release from prison — but are contrary to the facts.

Leading the charge has been Alan Dershowitz, Harvard Law School’s distinguished Felix Frankfurter professor of law.

In a recent Newsmax column, Dershowitz says that Pollard, who had been a research specialist with the Naval Investigative Service, “waived his right to trial by jury in exchange for a promise by the government that it would not seek life imprisonment. The government broke that promise.”

Dershowitz goes on to say that in a “perjured” affidavit, then Secretary of Defense Caspar Weinberger demanded life imprisonment and overstated the damage that Pollard had caused. “This was a direct breach of the plea bargain,” Dershowitz writes.

With respect to a fellow Newsmax columnist, in reviewing Pollard’s guilty plea and sentence, the U.S. Court of Appeals for the District of Columbia said that, contrary to Dershowitz’s claim, Weinberger did not ask for a life sentence. Instead, he merely called for “severe punishment.”

Weinberger’s request was “consistent with a request for a long prison sentence that would be short of a life term,” the court ruled in 1992.

Moreover, Weinberger did not speak for the prosecution, which asked for a “substantial period of incarceration.” When asked for comment last week, Dershowitz insisted that Weinberger requested “life imprisonment” and that meant the government was making the request. “It depends who you define as the U.S. government,” Dershowitz said. “The affidavit was a violation of the plea agreement. He was speaking for the U.S. government.”

Regardless of the recommendations, it was up to Judge Aubrey E. Robinson Jr. to decide what the sentence should be. He sentenced Pollard to life in prison.

In his Newsmax piece, Dershowitz goes on to say that the typical sentence imposed on an American who spies for an ally of the United States is in single digits. “Such sentences have been imposed on Americans who spied for Egypt and other countries that are American allies,” he writes. “There is no reason in justice or fairness for Pollard to have received the double-digit sentence for spying for Israel.”

As chief of the Justice Department’s counter-espionage section, John L. Martin supervised the prosecution of Pollard and 75 other spies. Only one case resulted in acquittal.

He tells Newsmax that no other spy for a friendly country has ever been prosecuted for espionage, as Pollard was. “No spy for a U.S. ally has engaged in anything like the magnitude of the Pollard case and been charged with espionage. There are no cases comparable to Pollard’s.”

Indeed, Pollard gave Israel access to classified documents that would fill a space 10 feet by 6 feet by 6 feet. “The enormous amount of material he turned over to the Israelis applied to just about everything imaginable, including communications intelligence information and some of our most closely guarded secrets,” Martin says. “A good deal of it did not relate to Israeli security.”

Whether Pollard spied for a friendly country is irrelevant, Martin says:
“There are no distinctions in the law between those who spy for allies or for adversaries. Once the documents are taken out of the custody of the U.S., you have no control over who may see them. People who have access to them would not necessarily be limited to the Israelis.”

While Pollard has claimed he spied because he was trying to help an ally, Assistant U.S. Attorney Stephen S. Spivack told Judge Robinson that the income Pollard and his wife Anne obtained from Israel equaled their annual disposable income from their salaries.

As noted in my book “Spy vs. Spy,” after being questioned by the FBI, Pollard and his wife took a circuitous route to the Israeli embassy on Thursday, Nov. 21, 1985. At 10:20 a.m., he fell in behind an Israeli Embassy car as it drove into the Israeli Embassy on International Drive NW.

Agents using aircraft knew exactly where Pollard was. From wiretaps, they already believed he was working for the Israelis. Several agents had been sent to stake out the Israeli embassy. But the agents could not pursue him if he entered the embassy, which is considered Israeli territory.

As nearly a dozen agents waited outside the compound, Pollard and his wife talked with embassy personnel for 20 minutes.

Pollard’s Israeli contacts had told him he would be granted asylum if he could shake his FBI tail. Because of the crowd of FBI agents outside, the embassy turned him away.

As Pollard and his wife drove out of the compound, the FBI arrested him. The next day, agents arrested his wife.

Pollard appealed his sentence on the grounds that his cooperation had been encouraged with a promise of leniency which was not granted by the court. The U.S. Court of Appeals for the District of Columbia upheld the sentence 2-to-1.

In his Newsmax piece, Dershowitz argues that the problem was the two judges who upheld the sentence were Jewish. “The non-Jewish judge, who had no fear of being accused of dual loyalty, was correct,” Dershowitz writes. “The two Jewish judges were dead wrong.”

To Jews like myself, that argument is insulting. It presumes that Jews, whether judges or not, make decisions about criminality based on their religion.

“What a wonderful legal argument,” says Joe diGenova, who was the U.S. attorney who prosecuted Pollard. “This is from a Harvard Law professor: Jewish judges are dangerous. And the non-Jew was the only one who had a balanced brain. Do you think he learned that in law school or what?”

As for the claim that Weinberger perjured himself by overstating the damage, “How come he doesn’t cite the Court of Appeals to say that the damage was overstated?” diGenova says. “The answer is because the damage was not overstated, and the court of appeals did not say that the damage was overstated.”

Dershowitz tells me that while no other case involving espionage for an ally may have been brought in the past, lesser sentences have been given when “the substance of the crime was identical.” Dershowitz adds, “He has apologized. He’s a broken man.”

Under Prime Minister Benjamin Netanyahu, Israel has aggressively sought Pollard’s release, appealing directly to President Barack Obama. Martin points out that Israel’s campaign is undercut by the fact that it never returned all of the classified material Pollard stole.

“If the Israelis really wanted to show some goodwill, they would do what they didn’t do in 1985 and that is return the top secret documents to the United States,” Martin says. “They have never returned those documents.”

Ronald Kessler is chief Washington correspondent of Newsmax.com. He is a New York Times best-selling author of books on the Secret Service, FBI, and CIA. His latest, "The Secrets of the FBI," has just been published. View his previous reports and get his dispatches sent to you free via email. Go Here Now.

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