The Pollard Case: Myths and Facts

The Pollard matter just won’t go away—and for good reasons. The most recent brouhaha surrounding the case was fueled by the news that the Obama administration is moving, at long last, to release Jonathan Pollard from prison. But the problem with the case—however troubling it is for American Jews of many stripes—is that the 29 years of Pollard’s incarceration have been characterized by 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:

Disproportionate Sentence

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 (for example, Pollard) 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 forty 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 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 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 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 lifesentence 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, as a matter of law, obliged to submit a pre-sentencing memorandum assessing the damage, actual and potential, resulting from Jonathan Pollard’s espionage. Weinberger concluded that Pollard’s crimes “demand severe [not “maximum”] punishment.” Weinberger did not call for the most severe sentence possible.

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.

Jewish Organizations

Myth: The “establishment” Jewish groups were against Pollard.

Facts: Jewish organizations intervene in a matter such as this if there is a finding that antisemitism, 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 fora 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.

Antisemitism 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, as 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, and was well-paid for his efforts, and he committed serious crimes.

My own view is that Pollard should no longer be in jail, but not for so-called humanitarian reasons. Jonathan Pollard, misguided and misled, was a criminal, and he did his time. He should therefore be released. 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.

Postscripts

The allegations of Israel trading info with the Russians have been around forever.  We’ll never know.  What we do know is that Pollard stole huge amounts of data, much of it having nothing to do with Israel (e.g., ship movements in the South China Sea), but being truly compromising and dangerous.

I have heard the allegations about security breaches attributed to Pollard being actually those of CIA pros working with the Russians.  Again, we’ll never know. But cover-up stories carry little weight with me when it comes to Pollard. Jonathan Pollard received a harsh sentence because of what he did, and because what he stole, and because of both the quantity and quality of what he stole.

Some of the most interesting discussions over the years have been those surrounding the plea-bargain.  Plea-bargains are recommendations; they are not binding.  In national-security cases especially, the judge always has the option of tossing out the agreement–and sometimes does.  In this case, there was an unfortunate confluence (unfortunate for Pollard, that is): a huge crime committed; a Defense Department and security agencies that wanted him put away forever, and Judge Robinson.  Judge Aubrey Robinson was a good and fair-minded judge, with a terrific record on civil-rights cases.  But he was tough, he rejected the plea-bargain agreement and meted out a tough sentence.

With respect to the Jewish community–our community has always been divided over the Pollard matter.  There was always the perception that the pro-Pollard forces–always vocal, sometimes hysterically so–were regnant.  That’s baloney.  The Americans for Safe Israel crowd and voices in the ZOA were always beating the Pollard drum; they were strident, but they represented themselves and their adherents, and some campus groups.  But the change came not from within but from the Israelis.

Early on, the Israelis wanted nothing to do with the case.  It was a rogue operation, and it was an embarrassment.   In the early years the official government position was, “We have no position.”  After some years this changed.  Add to this the fact that Pollard has been imprisoned for decades–he has fulfilled his statutory obligation–and the “humanitarian” stuff, and you have a change in American Jewish views.  It wasn’t because of Dershowitz.

One small note: An article in the Jewish Week reported that the Pollards received some $20,000.  I recall something along the lines of $200,000.  Tzarich Iyun [needs research].