News that Jonathan Pollard will be released in November after serving 30 years in prison for spying for Israel comes amid denials by the Obama administration that his release is related to its campaign to win support for its agreement with Iran. Let’s hope so. If the idea were to win support for the Iranian appeasement, it would have been better for Pollard to stay in prison.
Not that he deserved the life sentence. With all the disputed elements of the Pollard story, he should never have been given a life sentence in the first place. It’s not that his crime wasn’t serious. He violated the Espionage Act, compromising our sources and methods. But the record of the case suggests he received his life sentence because the government broke its plea agreement.
This became clear in the course of Pollard’s campaign for a new sentencing hearing. It was launched after he drew life for a single count of passing classified information to a friendly nation, even, I’d argue, the most friendly nation to the United States. His plea was no small favor for the government, which could conceivably have had to abort a proper trial in order to preserve the secrets that it maintained - no doubt rightly so - were so important.
Pollard lost his plea for a new sentencing hearing in the district court, and it came up for review in the appellate court for the District of Columbia. It’s as distinguished as a court can get, and the panel Pollard drew included three of its most distinguished judges: Laurence Silberman; Ruth Bader Ginsburg, who would go on to the Supreme Court; and Stephen Williams.
The panel ruled against him, two to one. Silberman and Ginsburg voted, largely on technical grounds (such as his appeal coming too late), to deny a new sentencing hearing. The riveting opinion was that of Judge Williams. I have written elsewhere that I’ll never forget reading it. At the time I was editing the Forward, which promptly issued an editorial called “These Juggling Fiends.”
Judge Williams listed the three basic promises that the government made to Pollard in return for his plea. It would make the court aware of the value of Pollard’s cooperation, it would not seek a life sentence, and it would confine its statements to “the facts and circumstances” of Pollard’s crimes. Williams concluded that the government “complied in spirit with none of its promises” and on the third “it complied in neither letter nor spirit.”
All that is a scandal, but to me the most galling aspect of the case involves another point that was well marked by Judge Williams — the suggestion that Pollard had committed treason. The word was used in a memo to the court from Secretary of Defense Caspar Weinberger, who headed the Pentagon for U.S. President Ronald Reagan and was in office when Pollard’s crime was committed.
Weinberger asked the court to mete out a punishment reflecting the “magnitude of the treason committed.” Weinberger knew that Pollard hadn’t committed treason. The defense secretary, like every other officer of the government, is sworn to uphold a constitution that says treason against the United States shall consist only in levying war against them or adhering to their enemies, giving them aid and comfort.
Treason can’t be committed by spying for an American friend. Treason is a crime of war. Pollard was dealing with an American ally. As Judge Williams noted, treason carries the death penalty. And, he noted, the espionage charge to which Pollard pled encompassed aid to even friendly nations and carried a maximum of life. Using the word treason in the context of sentencing Jonathan Pollard was not an innocent error.
What Pollard did was bad enough, I wrote the other day; I have no desire to sugarcoat it. But it stopped well short of treason, and the well was poisoned by a defense secretary who was widely known as a bitter critic of Israel. Pollard deserved a severe sentence, but the sentence he was handed was more severe than that given to any other American ever sentenced for spying for a friendly nation.
Pollard’s case will soon be in the hands of the historians, and that’s a good place for it. Let them parse the points of Judge Williams. He ended his opinion by quoting Shakespeare’s Macbeth and the famous curse against the witches — “And be these juggling fiends no more believ’d, / That palter with us in a double sense; / That keep the word of promise to our ear, / And break it to our hope.”
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