Wednesday, 17 Aug 2011
04:55 PM
By Alan Dershowitz
There are several reasons why justice demands that Jonathan
Pollard — given a life sentence for spying on the United States for Israel — be
commuted to time served and that he be immediately released.
The first is a legal and constitutional argument. Pollard, an NIS intel analyst convicted in 1987, 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.
It submitted a perjured affidavit by then Secretary of Defense Caspar Weinberger demanding life imprisonment and overstating the damage that Pollard had caused. This was a direct breach of the plea bargain.
Unfortunately Pollard's appeal was argued to a panel that included two Jewish judges, at least one of whom aspired to the Supreme Court. The two of them wrote a scandalously inept opinion affirming the sentence, while the third, non-Jewish, judge declared it to be a gross violation of due process and basic fairness. The non-Jewish judge, who had no fear of being accused of dual loyalty, was correct. The two Jewish judges were dead wrong.
I know of no other case in American jurisprudence in which a plea bargain has been so blatantly violated and the violation approved by an appellate court. The legal remedy is enforce the plea bargain as written and impose the sentence that the government promised it would seek.
If Pollard had served that sentence, he would be free by now.
Even if the law did not require Pollard's immediate release, principles of fairness and equal justice surely would.
The first is a legal and constitutional argument. Pollard, an NIS intel analyst convicted in 1987, 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.
It submitted a perjured affidavit by then Secretary of Defense Caspar Weinberger demanding life imprisonment and overstating the damage that Pollard had caused. This was a direct breach of the plea bargain.
Unfortunately Pollard's appeal was argued to a panel that included two Jewish judges, at least one of whom aspired to the Supreme Court. The two of them wrote a scandalously inept opinion affirming the sentence, while the third, non-Jewish, judge declared it to be a gross violation of due process and basic fairness. The non-Jewish judge, who had no fear of being accused of dual loyalty, was correct. The two Jewish judges were dead wrong.
I know of no other case in American jurisprudence in which a plea bargain has been so blatantly violated and the violation approved by an appellate court. The legal remedy is enforce the plea bargain as written and impose the sentence that the government promised it would seek.
If Pollard had served that sentence, he would be free by now.
Even if the law did not require Pollard's immediate release, principles of fairness and equal justice surely would.
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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 spies for Egypt and other countries that are American allies. There is no reason in justice or fairness for Pollard to have received the double digit sentence for spying for Israel.
The prosecutor in this case tried to justify this sentencing disparity by arguing that since so many Americans support Israel, the need for deterrence is greater. This is an unacceptable double standard.
Finally, there are the humanitarian considerations. Pollard has served longer than any American convicted of spying for an American ally. He is very sick, having undergone several surgeries. He will die in prison unless his sentence is commuted.
Why, it might be asked, is he still in prison?
The answer is that two groups of people have worked hard to keep him in prison. The first is the intelligence community, led by former CIA Director George Tenet. President Bill Clinton was apparently prepared to release Pollard toward the end of his term when Tenet, former head of the CIA, threatened to quit. This threat violated the law, which expressly prohibits a CIA director from making policy. Tenet's illegal threat made policy and kept Pollard in prison.
The other group that worked hard to keep Pollard in prison was a group of Jewish senators who wrote to Clinton insisting that Pollard's sentence not be shortened. Clinton personally told me that this letter from influential Jewish senators affected his decision. Now, even several of these senators are calling for Pollard's release.
Pollard's continued imprisonment, in violation of law, equality, justice and compassion, is a stain on America. This stain can be removed if President Obama commutes Pollard's sentence to time served.
A commutation is different than a pardon. A pardon erases the conviction, whereas a commutation simply reduces the sentence, without in any way suggesting that the defendant was not guilty of a serious crime.
Pollard has admitted his guilt, not once but several times. The first time was when he pleaded and was sentenced. More recently he has apologized, as has the Israeli government. By pleading guilty and cooperating with the investigation, Pollard spared the government the embarrassment and difficulties inherent in a spy trial.
Had he not confessed his guilt, it is unlikely he would have been convicted of the most serious charge of spying, since the only direct evidence outside of his confession was the fact that he had unauthorized possession of classified material.
For helping the government in this way, he was promised that he would not have to spend the rest of his life in prison. But now he is likely to die in prison, a broken and sick man, unless Obama does the right thing.
The time has come — indeed it is long overdue — for Jonathan Pollard to receive proportional justice.
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