One State for one People. Thou shalt not be a victim, or perpetrator, but above all, thou shalt not be a bystander. Yasher Koach!
April 7, 2014
Justice demands that Pollard be released without regard to what Israel decides to do on the release of Arab prisoners.
circulating that the Obama Administration is considering releasing
Jonathan Pollard, as part of an effort to encourage Israel to release
Arab prisoners. Justice demands that Pollard be released without regard
to what Israel decides to do. A case for Pollard’s release is based on
both legal and humanitarian considerations.
Although many former government officials who were involved in
Pollard’s prosecution now favor commutation, some continue to insist
that he should serve his complete life term. In opposing Pollard’s
release now, these former officials are violating the spirit, if not the
intent, of the contract our government made with Pollard 28 years ago.
Jonathan Pollard entered into a plea bargain with the United States
government after he was found with unauthorized, classified material in
his possession. He could have exercised his right to trial by jury and
he might have been acquitted of the most serious charges, because there
was little admissible evidence that he was spying for a foreign country.
Instead, he confessed to spying for Israel, a close American ally, and
agreed to plead guilty and cooperate in full with the government’s
investigation and damage assessment. In exchange, for giving up his
important constitutional rights, Pollard was promised that the US would
not seek the maximum sentence of life imprisonment. In other words, our
government agreed that a sentence of years less than life imprisonment
was sufficient to satisfy the needs of justice for Pollard, in light of
who he spied for, how extensively he cooperated with the investigation,
and how much time, money and risk he saved the government by pleading
guilty. A sentence of years, less than life imprisonment was sufficient,
the government agreed, to deter others from spying for allies. That was
the “quid” for Pollard’s “quo” in pleading guilty: The government’s
solemn agreement that a sentence of less than life was enough!
The prosecution then violated the plea bargain by submitting an
official affidavit from the then Secretary of Defense, Casper
Weinberger, who, according to Lawrence Korb, assistant Secretary of
Defense under Weinberger, was motivated by “a lack of sympathy for
Israel” – an understatement considering Weinberger’s long history of
animosity toward the nation-state of the Jewish people. In his
affidavit, Weinberger erroneously characterized Pollard’s crime as
“treason”, exaggerated the harm done, and demanded a sentence of life
imprisonment. By submitting this demand, which was inconsistent with its
agreement not to ask for a life sentence, the prosecution violated the
spirit if not the letter of their plea bargain.
There is no way any competent lawyer would have advised Pollard to
give up his right to a trial, after which, if he were convicted, he
could receive at most life imprisonment, in exchange for an agreement
that included the submission of an affidavit from the Secretary of
Defense demanding the maximum sentence of life imprisonment. For a
lawyer to agree to such a “lose-lose” deal would have constituted
ineffective assistance of counsel. The sentencing judge, relying on the
impermissible and exaggerated Weinberg affidavit imposed a sentence in
excess of what the plea bargain contemplated and what the prosecution
agreed would be sufficient: He sentenced Pollard to life imprisonment.
The sentence was and remains, the harshest one ever imposed on an
American who pleaded guilty to spying for an ally. The usual sentence
for such crimes is in the single digits.
Prosecutors not only broke their plea bargain back at sentencing, but
some of those former prosecutors continue to break it now by insisting
that Pollard’s sentence not be commuted to a term of years consistent
with what they agreed to recommend in 1986. Nothing has changed for the
worse over the 28 years Pollard has been in prison. Pollard has been a
model prisoner; he has apologized for his crime; consequences falsely
attributed to his actions by Weinberger and others now have been
correctly attributed to Aldrich Ames and others who spied for America’s
enemies; Pollard is seriously ill and getting old.
The time has come for the US government to keep its word and reaffirm
what it agreed to tell the judge back in 1986: namely, that a sentence
of years, 28 plus years, rather than a sentence of life imprisonment is
enough to satisfy the demands of justice for Jonathan Pollard. Even if
prosecutors refuse to comply with their plea bargain, the president –
who has the exclusive authority to pardon or commute – should do the
right thing and commute Pollard’s sentence to the long time he has