Jonathan H. Schwartz, 34, of Plymouth is an attorney at Foster Swift Collins & Smith…
Why Jonathan Pollard is Still in Prison
Copyright 2002, Edwin Black, All Rights Reserved
On January 7, 2002, former Israeli Prime Minister Benjamin Netanyahu stepped through the two-doored entry chamber of a prison sallyport. After the first fudge-brown steel and armored glass door slowly closed right-to-left behind him, Netanyahu passed his hand beneath a black light reader along the left wall. It illuminated a small security stamp on his hand, not unlike the type disco clubs use. Behind opaque, silver-tinted windows, watchful security officers in the control room completed their checklist, approving Netanyahu’s access. Then in a low mechanized rumble, the entry chamber’s long second door opened left-to-right, admitting Netanyahu to an inner corridor of the prison. He was ushered just down the hall and then into a large room on the right, filled with vending machines and tables. There, waiting for him was the man Netanyahu wanted to see.
The prison was not in Israel, it was in North Carolina. Netanyahu had flown to Raleigh Durham and then driven the forest-lined 20 minutes to the Federal Correctional Institution at Butner. It was all to talk to America’s most controversial Jewish prisoner, now serving his 17th year of incarceration. The prisoner, 09185-016, was Jonathan Jay Pollard, the American Jew who pleaded guilty in 1986 to spying for Israel, and was abruptly sentenced to life imprisonment despite a binding plea bargain that restricted any request for so harsh a term.
For the next few hours, within earshot of a National Security Agency monitor, Netanyahu and Pollard spoke about the anguish of his imprisonment and practical ideas to set him free. “Contrary to perfidious rumors about his manner,” remembers Netanyahu in a telephone interview, “Pollard was absolutely clear and in control—both intellectually and emotionally. Remember, he did not work for anyone but Israel, yet continues in jail after 17 years. However, others did work for other countries, and they were set free long ago. A great injustice has been perpetrated by keeping Pollard endlessly in jail.”
Netanyahu’s crusading tone is now a common feature of the Jonathan Pollard saga. Since that tumultuous afternoon, March 4, 1987, when federal Judge Aubrey Robinson stunned his courtroom by imposing a life sentence, Pollard has been the cause célèbre of an international movement to free him. The roster of the renowned passionately advocating for Pollard’s release, or the overturn of his sentence, is nothing less than spectacular. It includes every Israeli Prime Minister since the crime, from Yitzhak Rabin to Ariel Sharon; Nobel laureate Elie Wiesel, who has visited Pollard twice in prison; numerous members of Congress led by Rep. Anthony Weiner (D-NY); a collection of distinguished law professors, such as Harvard’s Charles Ogletree and American University’s Michael Tigar; a cast of Hollywood luminaries; and an armada of America’s most celebrated defense attorneys, including Harvard’s flamboyant Alan Dershowitz and Theodore Olsen, now the U.S. Solicitor General. Legions of grass-root supporters both within America’s Jewish community and the Israeli electorate, emotionally agitate as well for Pollard’s immediate release.
At the same time, Pollard’s continued lengthy incarceration is fiercely demanded by an equally vocal multitude. Virtually the entire U.S. intelligence and defense establishment, with CIA director George Tenet acting as point man, want Pollard to rot in jail forever. Few are as adamant as senior intelligence officers who happen to be Jewish, contacted by this reporter. Numerous ranking members of Congress, such as Sen. Joseph Lieberman, an extraordinary number of America’s best placed and most respected Jewish communal and pro-Israel activists, such as the leadership of the Jewish Institute for National Security Affairs, also do not object if Pollard remains behind bars. What’s more, the outspoken voices of condemnation are privately embraced by many top Jewish communal leaders who are revolted by Pollard’s misguided treachery. Opinion makers, columnists and journalists—many of them Jewish, such as syndicated Jewish media columnist Douglas Bloomfield — have filled the airwaves and printed pages with damnation for Pollard’s betrayal. The hardliners are fortified by multitudes of average Americans who part company with their Jewish friends over the Pollard spy case.
Certainly, numerous unanswerable contradictions, unsolvable mysteries, bizarre coincidences and sordid details populate the Pollard saga—enough to fill at least four books. The gold standard, “Territory of Lies” was penned by journalist Wolf Blitzer (then a Jerusalem Post correspondent and now CNN anchor), following his controversial late 1986 and early 1987 prison interviews with the spy. Added to those, hundreds of in-depth magazine investigations and TV reports have since picked at and probed the minutia of the case.
While no one will ever resolve the endless Pollard intrigues, there is one haunting question towering above all others: just why has Jonathan Pollard been imprisoned so long? Pollard was convicted of a single count of disclosing documents to an ally foreign government, in violation of Title 18, section 794c. The far more serious crime of selling classified information to an enemy nation, such as Iraq or the Soviet Union, violates section 794b, and generally fetches a life sentence. But in contrast, those who divulge the nation’s secrets to allies, section 794c, always receive lesser sentences.
For example, Navy Lt. Cmd. Michael Schwartz (not Jewish), who passed classified documents to the Saudis from 1992 to 1994 was simply discharged from the military, but never prosecuted, and served no jail time. Others who sold or disclosed documents to friendly countries such as Great Britain, Egypt, the Philippines or South Africa, generally received terms from two to four years and were released early. True, these espionage incidents were vastly less damaging than Pollard’s crime, and often did not involve compensation. Israel paid Pollard in cash, jewels, and expensive travel for his espionage, which his first wife Anne abetted.
Even still, the conclusion is inescapable. Pollard has by far received the longest sentence in U.S. history for spying for a friendly government. His life term rivals only those handed down to America’s greatest traitors, such as Aldrich Ames, whose treachery killed American agents, and John Walker who revealed our nuclear submarine positions to the Soviets. In fact, at least one of Walker’s family of accomplices has already been released after serving fifteen years of a 25 year sentence.
So why is Pollard still in prison after 17 years with no end in sight to his life sentence? Anti-Semitism has been ruled out by numerous Jewish organizations. Pundits, prominent and obscure, suggest the spy’s knowledge of America’s secrets are so sensitive, his enemies so powerful, the politics so volatile, his crime so severe, the Jewish spy can never be released.
But after an intense review of thousands of pages of Pollard-related documents, and dozens of interviews with prosecutors, senior intelligence officers, current and former Israeli and American government officials, the defense attorneys, and Jonathan Pollard himself, the answer now seems to focus on just two men. The first is Pollard’s own original defense attorney, Richard A. Hibey, who is accused in Pollard’s court papers of failing his client with “inadequate and unprofessional handling” of the sentence phase. The other is, of course, Jonathan Pollard himself, whose provocative conduct while in federal custody sealed his own fate.
Pollard’s only hope for freedom is now a habeas corpus action launched by his new pro bono attorneys. A habeas corpus petition argues that a defendant was denied Constitutional rights for one or more reasons. In this case, lawyers argue that “ineffective assistance of counsel” deprived Pollard of due process. If granted, Pollard would be re-sentenced. Though generally hard-to-prove, such a petition seems borne out by the facts in this case.
Pollard’s route to a life behind bars, when analyzed, follows six distinct phases: 1) the crime; 2) his alienating pre-sentencing media campaign; 3) the government’s retaliation; 4) the judge’s angry response; 5) the legal inaction of Pollard’s attorneys; and 6) the combative high-profile post-sentencing campaign to free him.
Ironically, no one has ever been able to reliably identify exactly what secrets Pollard sold to Israel—not even generically. Jewish leaders, such as Anti-Defamation League national director Abraham Foxman, who have been briefed by trustworthy sources have constantly been told the same refrain: “If you only knew how severe the damage was!” Despite reams of guesswork, media speculation and Washington’s porous nature, the details are still undisclosed.
But those details are clearly enumerated in a 46-page sworn declaration to the sentencing judge by then-Secretary of Defense Caspar Weinberger, most of which has been classified top secret. The secret affidavit includes a classified analysis of twenty illegally disclosed documents.
Although the Weinberger declaration was presented as the prosecution’s most powerful sentencing memo, it was in fact specifically requested by Judge Robinson. “The judge requested, the court asked, for a confidential, highly-classified summary to report the damage done,” Weinberger told me in an interview. Although the declaration was signed by Weinberger and submitted as the Secretary’s personal affidavit, the damning document was in fact assembled piecemeal by an inter-agency group of intelligence officials independently assessing Pollard’s damage to their own operations. A redacted copy of that sworn 46-page declaration, obtained by this reporter, together with information and analysis reported by several of the actual contributors, indicates that Pollard indeed compromised the most sensitive aspect of American intelligence. More than just intelligence substance, Pollard revealed the carefully guarded aspect of American intelligence, known as “sources and methods.”
Three classifications govern U.S. intelligence: confidential, secret and top secret. Beyond top secret is a special designation called Sensitive Compartmented Information [SCI]. SCI represents the highest stricture on America’s greatest intelligence secrets. Beyond even the highest security clearance, SCI limits access to those with a demonstrated “need to know” the specific files. Adding a “code word” to a top secret/ SCI classification, restricts access to those not only with a top secret clearance but also code word-specific authority.
As a key analyst in the Office of Naval Intelligence, Pollard enjoyed SCI multi-codeword access to many of the nation’s most sensitive intelligence projects and daily cable dispatches. “More than 1000 unredacted messages and cables,” of which a significant number were not just top-secret but “codeword sensitive,” were delivered to Pollard’s Israeli handlers, according to the Weinberger Declaration. These messages and cables displayed source references. By piecing those dispatches together, a foreign source could theoretically narrow the identities of specific sources overseas. That said, no U.S. intelligence agents to date have actually been harmed by Pollard’s disclosures, intelligence sources concede. Actual harm to sources is an important consideration in assessing the damage.
In addition, Pollard gave the Israelis more than 800 unredacted reports and publications. The many reports and publications—some of them dozens of pages long and featuring satellite photos — also displayed tell-tale source identification. These publications are typically redacted to protect sources and methods, and only then shared with the intelligence agencies of other countries under what the Weinberger Declaration calls, “a quid pro quo basis … in exchange for desired information or other valuable assistance.” Recipient nations are required to safeguard the information. Pollard’s disclosures meant America lost horse-trading leverage with Israel’s intelligence services. But more importantly, Israel was suspected of re-editing and then itself trading the information with other intelligence services under its own quid pro quos. Washington resented that its secret information was no longer under U.S. control. It could theoretically end up anywhere, including Moscow, as a bargaining chip while Israel was trying to free Soviet Jews.
One of the largest of copied documents was a special Compendium of intelligence community documents, classified secret, according to a former Navy intelligence source who personally reviewed Pollard’s disclosed reports. The special Compendium outlined for the Israelis exactly how much Washington was withholding under a March 1982 Israeli-American intelligence sharing agreement, profoundly restricted after Israel bombed Iraq’s Osirek nuclear reactor. The Compendium was in many ways an index to the voluminous coded and numbered documents Pollard’s handlers asked him to retrieve.
Numerous intelligence reports about Soviet missile systems, delivered by Pollard, exposed the way America analyzed Soviet weapons.
Among the most sensitive materials were reports from the Sixth Fleet’s Air Reconnaissance Squadron TWO, codenamed VQ-2, headquartered in Rota, Spain. The forward-deployed squadron’s motto is “We deliver critical electronic combat information to our forces: Any place, any time!” In Pollard’s day, VQ-2 continuously deployed EA-3B Skywarriors and later the EP-3E ARIES over-the-horizon electronic eavesdropping aircraft across the Mediterranean. VQ-2 provided invaluable intelligence during the 1973 Yom Kippur War, the 1982-83 evacuation of Beirut, and America’s precision night-time bombing of Libya in April 1986. By providing unredacted VQ-2 dispatches, revealing America’s time and place acquisition methods, Pollard enabled Israel to virtually track America’s own intelligence capability in the Mediterranean and even over Israel itself. This was crucial in Israel’s 1985 bombing of the P.L.O. headquarters in Tunis, codenamed Operation Wooden Leg, which depended upon Israeli F-15s evading both American and Arab listening posts over North Africa.
But all of it together was dwarfed by photocopying for Israel the massive 10-volume RASIN Manual, according to a principal author of the Weinberger Declaration. An acronym for Radio and Signal Intelligence [RASIN], the precious manual is known as “the Bible,” according to the intelligence officer. The RASIN Manual details America’s global listening profile, frequency by frequency, source by source, geographic slice by geographic slice. RASIN was in effect, a complete roadmap to American signal intelligence. Pollard’s handlers required the spy to locate and copy the most up-to-date edition.
When Pollard’s attorneys tried to argue at the sentencing that although the spy had delivered volumes of classified papers, “the damage here is not serious damage,” Judge Robinson stopped them cold. Raising his arm, and cautioning them not to verbalize the sensitive information, the judge warned, “Well, then I would ask you to just think —and not articulate. … I would ask you to think about the Secretary of Defense’s Affidavit, as it related to only one thing — and I won’t even pinpoint it — as it related to only one category of publication.” Judge Robinson added, “Would you like to come to the bench, and I will refresh your recollection to what I am referring to.” A hushed classified bench discussion followed. Informed sources say Pollard’s RASIN Manual disclosure was the crux of that secret courtroom exchange held just moments before the outraged judge finally pronounced a life sentence. Some estimate the loss of the RASIN manual cost America billions of dollars, and many years, to completely restructure our worldwide eavesdropping operation.
THE OUTRAGEOUS MEDIA CAMPAIGN
To avoid a public trial, the government negotiated a binding, written plea agreement with both Pollard and his first wife Anne. By way of background, plea agreements govern conduct of prosecutors and defendants in the time leading up to sentencing. “A plea agreement is exactly what the two words suggest,” explains distinguished former federal Judge George Leighton, who has studied the Pollard case. “It is an agreement between defendant and government governing the guilty plea and the length of sentence the government will insist upon. This is done to induce the defendant to relinquish the important right of trial. The government must live up to the agreement, and the plea agreement can be enforced against the government.”
Pollard’s binding plea agreement required him to cooperate fully with a cascade of polygraph examiners and intelligence investigators. This he did.
In return, prosecutors promised that while they would indeed request substantial jail time, they would not ask for the maximum: life. Toward that end, prosecutors promised to stress to the judge the spy’s post-arrest cooperation with investigators and polygraphers, and limit their allocution of facts to the circumstances of his espionage. As such, prosecutors agreed to omit aggravating details of Pollard’s high Israeli-paid lifestyle, suggestions of cooperation with South Africa, and other aggravating factors that could easily inflame the sentencing judge to mete out a longer term. As part of the overall deal, Anne, who assisted Pollard’s espionage, would be shown leniency with a minimal term, and bail while awaiting sentence would not be opposed.
The two agreements were “wired,” that is, both Pollards had to comply with all provisions.
Both agreements also routinely required the Pollards to obtain specific approval from the Director of Naval Intelligence for any media interviews or publication. Clearly, the government’s intent was to restrict further classified disclosures, including inadvertent ones, and basically deprive the Pollards of any notoriety, prestige, income or other benefit that interviews, books, or movies might bring. Such conditions are standard in many plea agreements, especially those involving espionage. Keeping your mouth shut and displaying remorse is “job one” when throwing yourself at the mercy of the court.
But the Pollards tried to outsmart mercy. They decided to rally the American Jewish community and massage public opinion, hoping to create outside pressure on the judge and prosecutors to dispense a reduced sentence.
Without the knowledge of his attorney, Pollard granted two exclusive prison interviews to Wolf Blitzer, then Washington correspondent for the Jerusalem Post. In these interviews, Pollard brashly presented himself as a highly motivated Jew determined to help Israel in the face of an intransigent American intelligence community endangering the Jewish State. “No Bumbler but Israel’s Master Spy,” the headline declared. Moreover, a letter from Pollard ran on the front page of the Jerusalem Post decrying his “judicial crucifixion,” and assuring “the gains to Israel’s long-term security were worth the risks” he took. The letter even lamented the fact that “no one has summoned the [Jewish] community to put a stop to this ordeal.”
What a disaster. Press interviews with prisoners awaiting sentencing are virtually unheard of. Pollard’s defiant, combative tone was more than astonishing. After learning of one of the interviews, Pollard’s defense attorney Richard Hibey is said to have shrieked so loudly into the phone, a partner rushed in to see if he was okay.
The Jerusalem Post campaign seemed Jonathan Pollard’s total undoing. But that damage was surpassed by wife Anne’s audacious interview with Mike Wallace on 60 Minutes. In her interview, Anne told the nation, “I feel my husband and I did what we were expected to do, and what our moral obligation was as Jews, what our moral obligation was as human beings, and I have no regrets about that.” 60 Minutes aired just a few days before the scheduled sentencing.
Remorse was now out of the question.
Prosecutors Joseph diGenova and Charles Leeper were outraged, as was Judge Robinson. So was Pollard’s now humiliated defense attorney Hibey, who was expected to keep his client in line.
“I assure you, Judge Robinson got a videotape of the 60 Minutes interview the very next day,” recalls Hamilton Phillip Fox, one of Pollard’s subsequent defense attorneys, in an office interview. “It was a classic case of how not to behave,” a senior member of the prosecution team told this reporter.
Jewish officers throughout the American intelligence community were equally incensed that the Pollards might make all American Jews seem disloyal. “There are more than a few Jews loyally and quite properly serving their country in intelligence,” explained one highly-placed Jewish intelligence analyst. “None of us wants to be looked at cross-eyed when we walk into a room, people wondering if we are the next Pollard. He had no right!”
Pollard’s antagonistic media gamble sealed his fate. He was now doomed.
Angry prosecutors would now manifest their rage and exact their revenge. It was inadvisable to throw out the binding plea agreement, claiming the Pollards breached the spirit of the media strictures. With no plea agreement, the government would have to start from scratch and prosecute the case in a public trial. Instead, prosecutors themselves simply breached the plea agreement to make sure Pollard was thrown in jail for life.
Prosecutors were obligated by the plea agreement to confine their arguments to the details of the crime and make no effort to provoke a life sentence. Instead, in a memorandum to the judge originally classified secret, diGenova castigated “the tactic which he [Pollard] has relentlessly pursued during recent months — to garner support for a ‘political solution’ to the criminal proceedings pending before this Court. Defendant continues to express his hope that his incarceration may be cut-short by a ‘diplomatic or administrative’ solution.” DiGenova added, “Defendant has solicited political efforts by Israel to obtain his release.” Twice the prosecution denounced these “attempts to glorify his actions.” Time and again, prosecutors returned to the Wolf Blitzer interviews as flagrant violations of the plea agreement and egregious examples of Pollard’s unabated deviousness. The prosecutors declared: “This pattern of public relations gambits undertaken by defendant … has demonstrated that he is … contemptuous of this Court’s authority.”
All of it was strictly outside the four walls of the binding plea agreement. But prosecutors understandably wanted the judge to grasp that Pollard was trying to go over the court’s head to publicly or politically pressure for a reduced sentence. Any judge would be inflamed.
For reinforcement, diGenova presented an unprecedented last minute four-page affidavit from Secretary of Defense Weinberger who essentially asked for “life imprisonment,” even though the plea agreement expressly prohibited such a request. Life sentences had been dealt just months before to several notorious spies. Weinberger’s affidavit made clear to the judge, “It is difficult for me, in the so-called ‘year of the spy’ to conceive of a greater harm to national security.” The message was clear: give Pollard life — regardless of the plea agreement.
“The reference to the ‘year of the spy,’ was an undisguised reference to the Walker, Whitworth, and Pelton cases,” insist numerous post-sentencing amicus filings, including Pollard’s own September 2000 Motion for Resentencing. That motion specifies, “Newspapers and magazines discussing those cases, had proclaimed 1985 the ‘year of the spy.’ … Each [spy] had been sentenced to life in prison … The government had no reason to mention the ‘year of the spy’ other than to call the judge’s attention to these other spies … Without using the words ‘life in prison,’ the government was asking for a sentence of life in prison in none-too-subtle terms.”
Indeed, even the FBI’s own history website declares that 1985 was “The Year of the Spy,” and lists Pollard’s name alongside the nation’s greatest traitors.
At the sentencing on March 4, 1987, prosecutors again emphasized that Pollard was a deceitful and outrageous media manipulator, hammering at the Blitzer interviews. If that was not enough, prosecutors further disregarded the plea agreement by invoking extra information guaranteed to inflame the judge. Judge Robinson was one of the District of Columbia’s most respected African-American judges. Prosecutor Charles Leeper, in making his final arguments, disclosed to the judge that Pollard had written a personal letter home decrying his condition in the DC jail, where he encountered hostile, primarily Black inmates, many among the city’s most violent criminals.
“Parenthetically,” Leeper tossed in, “I should mention that he [Pollard] asked for leniency because he says he is disliked by his fellow inmates. I wonder if it has occurred to him that when he describes publicly people with whom he is incarcerated, using terms such as, and I quote, ‘The most degenerate group of subhuman individuals collected under one roof,’ that he may be the cause of his own problems.”
That was so clearly an appeal to Judge Robinson’s personal racial instincts that when defense attorneys objected, Judge Robinson brushed the remark aside, quipping “Do you honestly think that that is going to make any difference? … Give me some credit.”
But the damage had been done. Between the Pollards’ outrageous interviews and the prosecution’s unbridled breach of the plea agreement, there was little hope.
THE JUDGE’S ANGRY RESPONSE
Judge Robinson’s courtroom was tense throughout the late afternoon proceeding that March 4, 1987.
“It was as though you had pissed on the judge’s desk,” recalls a senior member of the prosecution team. He added, “We originally calculated he would be out by 2002. [Jonathan] Jay [Pollard] had time served since November 23, 1985. Figure 15-17 years. But the judge was steamed — really steamed. In fact, as the judge was speaking, some thought the sentence might run up as high as 25 years. Then one of the prosecutors turned to me and said 35 years. But I felt it coming. As the judge was getting ready to pronounce; I told one of the guys, ‘I think he’s going away for the full ride.’”
Judge Robinson ignored the prosecution’s clear violation of the binding plea agreement. He agreed that Pollard deserved the worst punishment possible. Stern, determined, and provoked, Robinson announced, “I think I should state for the record that during my entire tenure in this court, I have never had more voluminous submissions in connection with the sentencing of a defendant than I have had in this case. And in addition to those voluminous submissions by each side, I have also received numerous communications directed to the court with respect to this procedure.
“I have read all of the material once, twice, thrice, if you will,” Judge Robinson continued, “and I have given careful consideration, not only to the submission, but to argument of counsel, and I pronounce the sentence as follows …”
The breathless courtroom waited. As the judge pronounced the word “life,” the room erupted into chaos. People were shrieking in dismay. Anne collapsed into hysteria. Guards lifted her off the floor only to hear her own five-year sentence. Blitzer’s book, Territory of Lies, recalled the courtroom bedlam best, when he wrote: “The guards dragged Anne out of the courtroom. By now, she was screaming, completely overcome with hysteria. Pollard could not help her. Indeed, federal marshals forcibly separated them.”
Pollard was taken away to begin his life sentence.
THE DEFENSE FAILURE
The prosecution’s excesses and breach of plea agreement should have been objected to by Israeli government-paid defense attorney Hibey. But they were not.
Nor did Hibey call for an evidentiary hearing on the last-minute affidavit by Secretary Weinberger using language essentially signaling a life sentence and justifying it with the assertion, “It is difficult for me, in the so-called ‘year of the spy’ to conceive of a greater harm to national security.”
Ironically, during a May, 2002 interview with Caspar Weinberger regarding his recent published memoir, In the Arena, this reporter asked Weinberger why the Pollard incident was left out of the book. Weinberger casually replied, “Because it was, in a sense, a very minor matter, but made very important.” Asked to elaborate, Weinberger repeated, “As I say, the Pollard matter was comparatively minor. It was made far bigger than its actual importance.” Pressed on why the case was made far bigger than its actual importance, Weinberger replied, “I don’t know why—it just was.” Had Hibey called for an evidentiary hearing on Weinberger’s affidavit, the veracity of his assertions could have been assessed.
In response to Weinberger’s startling admission some fifteen years later, Malcolm Hoenlein, executive vice chairman of the Conference of Presidents of Major American Jewish Organizations, declared, “This raises serious questions about Weinberger’s sworn comments at the time which now seem contradictory. I wish he had made this clear years ago.”
Moreover, Hibey failed to object to the repeated prosecution assertions that Blitzer’s interviews were unauthorized, a notion that seems impossible since they were conducted with the permission of the Department of Justice and Bureau of Prisons inside the prison itself. Indeed, the whole idea of Blitzer’s interviews being unauthorized seems preposterous on its face. How does a reporter for a foreign newspaper, especially a newspaper in the country that commissioned the spying, walk into a prison setting to freely interview a spy whose talkativeness and propensity for super-secret disclosures could only further damage American intelligence? Prosecutors insist Blitzer did it not once but twice, and all without the government’s knowledge or permission.
In a telling admission, Bureau of Prisons officials and Judicial Adjutant General [JAG] legal advisors to the Director of Naval Intelligence told this reporter that when the Bureau of Prisons grants the interview, it is only after the review and permission of the Director of Naval Intelligence. “Once your request is submitted to the Bureau of Prisons,” a Naval Intelligence Office JAG officer explained, “the BOP General Counsel notifies the DNI’s JAG Officer. She then runs the request through a series of potential interested parties, including the DNI, and then responds to the Bureau of Prisons. If the DNI approves the request, the Bureau of Prisons sends you written permission. According to the JAG, that written authorization is all that you need, the DNI’s permission is implicit in the BOP authorization … The JAG asked that you continue to work through the Bureau of Prisons.”
Although Blitzer and Pollard followed the procedure of working through the Bureau of Prisons, prosecutors somehow portrayed the two interviews as a violation. Former Director of Naval Intelligence William Studeman, now a TRW executive, declined to answer questions about whether he knew in advance that Blitzer was interviewing Pollard.
More than failing to object to the characterization of Blitzer’s interviews as unauthorized, a demure Hibey conceded to the judge in open court, just moments before the final sentence: “The action was ill-advised, unauthorized, there is no question about that in my mind … Yes, your honor, you are correct, that it was done without the pre-clearance procedure.”
Nor can it be explained why the government felt sufficiently confident that Hibey would not object to its excesses, or demand an evidentiary hearing requiring the prosecution to prove that the Blitzer interviews were indeed unauthorized, and that the last-minute Weinberger memo was a reliable assessment of Pollard’s damage.
Pollard’s new pro bono attorneys, Eliot Lauer and Jacques Semmelman, filed a recent motion complaining that “Hibey did not protest, either in writing or orally at the sentencing, that by asking for life in prison in this manner, the government had violated the plea agreement.”
Judge Leighton, who reviewed Pollard’s case on the Hibey issue, was among those who filed a declaration with the court asserting Pollard was denied due process during his sentencing. “The evidence shows,” wrote Judge Leighton, “that the government engaged in serious misconduct that went unchecked by an ineffective defense counsel, Richard Hibey, and that these constitutional violations severely prejudiced Mr. Pollard, and resulted in his sentence of life in prison.”
Semmelman adds, “The government has never filed the simple sworn affidavits required to end these charges about the Blitzer interviews.
Finally, in the wake of all the errors and breaches, Hibey never filed the simple one-page Notice of Appeal form within the requisite ten days. That had grievous effects.
“After a defendant has been sentenced in a federal case,” explained Abraham Abramovsky, a Fordham University professor of criminal law who has studied the Pollard case, “he has only ten days to file a notice of appeal from the sentence. If he fails to do so, he can never again file for direct appellate review, no matter how outrageous the error.”
At least three members of Congress are among the long list of eminent reviewers who agree. Representatives Anthony Weiner (NY), Jerrold Nadler (NY) and Janice Schakowsky (IL), signed a November, 2000 letter to then-president Bill Clinton complaining of a “very disturbing picture of serious misconduct that appears to have gone unchecked by Mr. Pollard’s then-counsel … Perhaps most troubling, after Mr. Pollard had been sentenced to life in prison, his attorney failed to file a Notice of Appeal—a simple and straightforward task that a competent attorney would routinely have done. By that failure, Mr. Pollard’s then-counsel appears to have … doomed Mr. Pollard to an unreviewed sentence of life in prison.”
Added to Pollard’s woes has been his conduct while seeking clemency. Every attempt to gain presidential clemency, spearheaded by Israeli prime ministers and American Jewish leadership has been thwarted. Why?
The same inexplicable behavior streak that caused him to alienate his prosecutors, judge and defense counsel, have survived during Pollard’s 17 years of incarceration. Although, most convicts have learned to conduct themselves passively and speak in a fashion that will play to parole boards, Pollard has gone on the offensive. Pollard’s voluminous handwritten letters to supporters insult the integrity of prosecutor diGenova, and bitterly challenge the commitment of American Jewish and Israeli leaders petitioning for his release. For example, on May 24, 2001, Pollard wrote an open letter to Israeli president Moshe Katsav about a meeting with President George Bush. “Even if you were to bring up the issue of my release with Bush yourself, as you claim, your past record on my case leaves no room for doubt that you would not do so in a serious or effective manner. Rather just so that you can return to Israel and claim that you brought it up but were unsuccessful.”
When in late 1999, Israel Prime Minister Ehud Barak asked his Minister of Diaspora Affairs to meet with Pollard’s second wife Esther, Pollard issued a statement: “I was shocked at the Government’s sleazy attempt at deflecting public attention away from the fact that Prime Minister Ehud Barak will absolutely not take any responsibility for bringing this agent home … They are sending the lightest of the lightweights, which will be … treated as a joke in Washington … The point is this: I am an Israeli agent who worked for the Ministry of Defense. As such, it is up to General Barak, who is now Prime Minister Barak, to get me home and nobody else.” Pollard’s Israeli attorneys ultimately filed a lawsuit against Barak for non-responsiveness, seeking, among other things, to compel him to meet with Pollard’s wife and issue weekly reports on efforts to obtain his early release.
Not a few in the Jewish community have been harassed by Pollard supporters when they stray from the Pollard camp’s line. For example, in 1993, Sen. Daniel Moynihan’s senior advisor David Luchins, became embroiled in a tactical dispute over Pollard seeking a parole, and also a letter of remorse obtained by Rabbi Aaron Soloveichik. The late Rabbi Soloveichik was considered one of American Judaism’s most revered rabbinic authorities. The letter was a Congressional initiative to secure presidential commutation. But after Pollard signed the letter, he reportedly expressed regret over a portion of the letter which apologized for violating Jewish law — to the utter dismay of those pious Jews who had organized the letter.
Luchins’ life was threatened by Pollard supporters, who circulated a flyer that the Jewish Forward called a Salman Rushdie-style religious decree calling for Luchins murder. A source close to Sen. Moynihan says federal marshals were summoned to protect Luchins. Just prior to the flyer’s appearance, Pollard’s attorney Theodore Olsen wrote a letter to Luchins threatening a defamation action over remarks Luchins made about Pollard, asserting that the Constitutional right of free speech did not apply in this case. By way of background, convicted felons cannot be defamed. Olsen, now Solicitor General, issued a terse “No Comment” to questions about his letter.
Observers say it is understandable for an embittered Pollard to lash out, since he is facing a harsh life term under the circumstances that it was dealt. But legal experts consider it inadvisable for a man seeking clemency to offend those needed to champion his cause.
Concomitant with the combative clemency request is a range of bewildering allegations issued by Pollard or his principal supporters. For example, it was widely circulated by Pollard that he was shown a “list of names” of prominent Jewish Americans so he could implicate one of them as an accomplice, a so-called Mr. X. This arose from the fact that Pollard was given instructions by his Israeli handlers to retrieve specific numbered documents that only an insider would know. Many names were bandied about, including ADL national director Abraham Foxman, Conference of Presidents executive vice chairman Malcolm Hoenlein and Douglas Bloomfield, former lobbyist of the American Israel Public Affairs Committee.
In a statement attacking Bloomfield for unsympathetic comments, Pollard’s key organizers claim, “Douglas Bloomfield’s name was indeed on a list of suspected Jewish co-conspirators … Jonathan was told that he could win his ticket out of the facility [Marion prison] by implicating any one of the names on the list. His accusers did not particularly care about the guilt or innocence of any of the Jews named. All they wanted was another whipping boy. Lucky for Bloomfield and those others on the list that Jonathan chose honor and truth above self-interest, and would not cooperate.”
Images of a government-compiled list of prominent Jewish names outraged many in American Jewry. But upon closer examination, such a list seems to be non-existent, and more than implausible on its face. “The idea that leaders of Jewish organizations had access to the secure vaults at the CIA and Pentagon is absolutely absurd,” chuckled the director of one major Jewish organization.
Bloomfield, now a syndicated columnist, ridiculed the idea as well. “The proof that this list is a figment of a fertile and paranoid imagination,” says Bloomfield, “is the fact that if it did exist and anyone’s name was on it, they would have heard from the CIA, DIA, and everyone else — and long before it would have appeared on anyone’s web page. I have not spent recent years hiding … No one has contacted me.” Indeed, none of the Jewish leaders suggested to be on the list, when questioned by this reporter, said they had ever been contacted by any law enforcement agency. Such contact would have been a certainty had a list really existed.
At the same time, Pollard and his key spokesman have continuously declared that he committed espionage only because the American intelligence establishment collectively endangered Israel’s security by withholding crucial information. This has motivated the senior intelligence community to energetically oppose early release for Pollard.
Pollard’s best chance for executive clemency occurred during the 1998 Wye River conference, attended by Yassir Arafat and then-prime minister Benjamin Netanyahu. “One of the first things we said at Wye,” recalled Netanyahu in an interview, “was that if we signed an agreement with Arafat, I expected a pardon for Pollard.” But in the aftermath of the negotiations, President Clinton declined to release Pollard. The White House leaked the existence of “a letter” from CIA director George Tenet declaring that if Pollard were released, Tenet would resign. “No such letter was written,” a Washington intelligence source told this reporter.
JUSTICE FOR POLLARD
The more alienating and noisome are Pollard’s tactics, the more believable it is that the legal establishment ran roughshod over Pollard’s constitutional rights — and in broad daylight with the world watching.
In one of Pollard’s earliest unsuccessful decisions, federal judge Stephen F. Williams dissented, writing that “the government’s breach of the plea agreement was a fundamental miscarriage of justice … Pollard’s sentence should be vacated and the case remanded for re-sentencing … the fault here rests upon the prosecutor, not on the sentencing judge.” Justice Williams ended his opinion with the unusual declaration, “The case does remind me of Macbeth’s curse against the witches — whose promises … led him to doom.” Quoting Shakespeare, Williams wrote: “‘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.’”
Yet efforts to obtain juridical justice for Pollard have faltered over the years. One of his early attorneys, Hamilton Philip Fox III, whose fees were also paid by the government of Israel, moved to withdraw Pollard’s guilty plea in 1990. Fox, a former assistant U.S. Attorney himself, charged that the government breached its plea agreement. But the court refused his effort, citing the absence of any objection by Hibey. The only way for Fox to get around that stumbling block was to assert that Pollard had been denied “effective assistance of counsel,” in other words, deprived the spy of his Constitutional rights.
“Indeed, that was the first thing under consideration, ineffective assistance of council,” recalled Fox in an interview. “When I interviewed Hibey, he did ask me if I would raise the question of ineffective assistance of council. I said if I did, I would let him know. Actually, at about that time, my assistant was working on a memo on that very topic. But we thought there was no chance under Supreme Court guidelines … which sets an extremely high standard. So we never did it.”
But more than just not raising it, Fox’ pleadings went out of his way to praise Hibey. “We do not challenge the government’s claim that Pollard’s prior counsel skillfully negotiated a plea agreement and effectively allocuted for his client,” wrote Fox in his pleading. Our criticism is not of prior counsel but of the government’s failure to live up to its side of the bargain.” This conspicuous praise for Hibey has caught the attention of more than one legal expert, who question how Fox could make such a unilateral concession.
Lauer’s and Semmelman’s pleadings assert that an old-boy network was at work and Fox was in it. Judge Leighton’s declaration on Pollard agrees, stating, “I doubt that the bar in the District of Columbia is any different from … other cities. Certain lawyers will simply not attack or criticize another member of the bar, especially one who practices in the same specialty … Many such lawyers will not … risk ostracism within their professional community, by accusing a fellow lawyer of ineffective representation in any case — much less a high profile case, as this one was.”
Fox, aware of the insinuation, told this reporter, “I have never gotten a single referral from Hibey” and reminds, “Remember, we took a shot at a sitting judge.” Asked why he wrote those words of unsolicited praise for Hibey, Fox replied, “I just don’t know why I wrote those words.” Asked to explain why Hibey did not file the all-important ten-day Notice of Appeal, Fox speculated, “it probably didn’t occur to him.”A flabbergasted Semmelman commented, “How can a former assistant US Attorney fail to immediately file a Notice of Appeal from a life sentence?” Indeed, one current assistant U.S. Attorney who years ago briefly worked on the Pollard case, when informed that Hibey had not filed the form, merely said, “Yikes.”
Hibey has been called one of Washington’s most effective lawyers. He now works with Winston & Strawn. He has declined to reply to the legal and Congressional challenges to his representation of Pollard. Nor did Hibey reply to repeated requests for an interview. At one point, this reporter sat in the reception area outside his Washington office for five hours waiting for a spare moment to posit questions. Hibey refused to meet.
Lauer said he was “eager to have the court conduct a hearing and put Hibey on the stand to explain his conduct.”
But juridical justice for Pollard has been frustrated over the years because so many in the Department of Justice and cooperating intelligence establishments have become so hardened against the spy. The legacy of anger is actually handed down from bureaucrat to bureaucrat as new assistant U.S. Attorneys come fresh to the case — and yet fight like hell to resist all legal initiatives. For example, Lauer and Semmelman, the latest and best hopes for Pollard, have filed mountains of motions. Direct appeals are not possible, so they are seeking habeas corpus on the basis of ineffective assistance of counsel. In other words, they are asking that Pollard be re-sentenced in accordance with his plea agreement — which could theoretically result in yet another life sentence (although most scholars think that is doubtful after seventeen years).
As part of their advocacy, Semmelman and Lauer are seeking to examine five sealed court documents. They have been denied on the grounds they don’t possess a “need to know” security clearance for the secret documents. Yet, this reporter has learned that those five documents have been accessed on at least 25 occasions by a variety of persons at the Justice Department between November 19, 1993 and January 12, 2001, coinciding with Pollard’s clemency requests. Several inter-agency reviews have also presumably accessed additional copies outside the Justice Department. Hence, the prosecution has unlimited access, and the defense has none.
Lauer and Semmelman have been frustrated at every step by protracted delays, refusals, and volumes of hair-splitting government legal arguments. Lauer and Semmelman can’t even get an evidentiary hearing. “If we could only get the court to give us a hearing,” says Lauer, “we could subpoena documents and take testimony — and once and for all establish the facts.”
Each day the case drags on, Pollard remains imprisoned, serving longer than any American ever convicted of disclosing documents to an ally, and even longer than some who committed treason.
In an exclusive prison interview — his first in years — this reporter asked Pollard about the controversies swirling around him. To avoid duplicating the Blitzer incidents, this reporter first directly contacted the office of the Director of Naval Intelligence, conferring with his legal representatives, and obtained a letter of permission from the Bureau of Prisons with written assurance that it incorporated the implicit approval of the DNI, and then coordinated my visit with the two National Security Agency agents who monitor within earshot, Pollard’s non-attorney and non-spousal meetings with the outside world. “Within earshot” means seated directly across the table. Exchanges in any language but English are strictly verboten. Ironically, the intense government concern about Pollard releasing twenty-year-old technology secrets to outsiders is belied by the fact that he speaks without restriction or monitor to his Canadian wife, Esther, a foreign national in continuous contact with the very Israeli government responsible for the spying. And he freely talks to hundreds of fellow criminals in prison.
The Federal Correctional Institution at Butner, NC, nestled within a woodland and meadow perimeter, bears no resemblance to Alcatraz or Attica. Butner’s housing units and yard are spotless, groomed, and in many ways resemble a YMCA locker room. There are no bars on the cells, only steel doors with small windows. Prison officials understand they are holding a high-profile convict. Visitors are treated with extreme courtesy and professionalism within the confines of a medium security facility. But make no mistake, this is highly regimented prison. Hell can also be an antiseptic place.
Pollard himself, wearing a yarmulke, appeared in the interview room with all the verve of a dinner host. His mental faculties are razor sharp. Subscriptions to numerous newspapers and magazines, as well as constant attention to National Public Radio and CNN, keep Pollard informed about world events up to the minute. He devours books on a multiplicity of topics.
In a wide-ranging 90-minute interview, Pollard presented mixed messages about his original motives and a jumble of emotions. But he was clear about his predicament. Asked if he regretted his espionage, Pollard focused hard and replied, “I don’t think regret is strong enough a word to use. No one who has seen what has happened to me over the past seventeen years, could possibly say I feel good, to any degree over what I did.”
Did he regret his transgression or just being caught? “The transgression,” he quickly answered. His explanations for his crime wandered, but were summed up with the painful admission, “Whether this was done to Israel, or that was done to Israel — you know what, that’s not my responsibility anymore … I fought that battle with myself seventeen years ago, and you know … I lost that battle and I’m not going back to it. I’ve been destroyed and I destroyed a lot of people around me.”
Then why alienate so many who try to help you? “It’s a sore subject,” he says. “For the first ten years of this case, I worked quietly and behind the scenes to advance basically a political agenda to get myself out of this jam … hopefully, some kind of deal between the Israeli government and the American government to secure my release …. During the course of this initiative we got to know an awful lot of Jewish leaders here in the United States … and they seem to fall into one of several groups in their response to me. Some ran away from it … others promised to do things but basically didn’t … and others did harm … I didn’t really know how to react to these guys because I never had anything to do with these people before. I was naïve.”
Asked if he thought attacking those who tried to help would continue, he replied, “I’m looking for help wherever I can get it. I am thankful for anybody who can do anything constructive to help me.” He explained, “I’ve only tried to correct the record when people say things that are not correct or allege that I’ve done things that I haven’t done, or misstate my case, misrepresent my intentions, and my agenda. I want help and I need help. When people say we’re going to help you, they come here and they look at me … I’m in the pit and they look over and they say, ‘Jonathan, we’re going to get help for you.’ That sets off [in me]… you can’t imagine — I hope you’re never in a situation like this, where all you’re doing is staring up through a pit, an opening, praying that the person who just made you a promise, looking down at you, was sincere.”
Asked if he thought he should be freed as a “Jewish patriot,” or because he was denied due process, Pollard decisively replied, “Denied due process.” He was pressed, “What about the ‘Jewish patriot’ part?” Without hesitation, he responded, “That’s irrelevant … It has absolutely nothing to do with it.”
Pollard was then asked, “So those many organizations which rally for you and say you’re a Jewish patriot, you wish them to stop?” Pollard replied, “I wish them to focus on the merit of our case. The legal merit.”
What would he do if he was released? “I’ve learned an awful lot over the past seventeen years,” concedes Pollard. “I’ve grown quite a bit. I’ve learned the whole notion of consequences. My only interest when and if I get out is to lead as productive a life as possible … I’d like to leave this behind me. This case and everything associated with it is the source of unmitigated, unqualified horror to me.” He added that he has zero intention of writing a book, granting interviews on intelligence matters, or attacking those he senses failed to expedite his release.
“Upon my release,” Pollard continues, “this whole case and everything associated with it is consigned, as far as I’m concerned, to the dustbin of history … My life has been utterly destroyed. People I love and care for have been destroyed … [To me] this is Kryptonite.”
Finally, Pollard was asked point blank, “Do you really want to get out of here — or would you rather stay in prison as an international Jewish celebrity?”
With a voice riveted to determination, he replied, “I would rather eat the dust of Israel as a beggar and be with my wife than to continue this horrific existence that I’m currently suffering … I’m a very small person in the course of Jewish history, in the course of our people’s existence, I’m a blip on the radar screen. I’m a footnote; a small footnote at that … I really screwed up and I can’t–if I get another chance, by the grace of God — I can’t screw up again. You only get one reprieve, and I’m not going to muck it up.”
As we concluded the interview, the lawyers discussed flights home, the guards spoke of dinner reservations, the NSA monitors checked their wristwatches as they strolled out to a rented car, and this reporter called his office to plan upcoming travel. Everyone had someone to see, some place to go, something to do. But one man, Jonathan Pollard, wasn’t going anywhere — except the 100 yards back to his tiny cell.
What began as a tragedy has devolved into a disgrace for all who touch their hands to the sordid Pollard affair. He has managed to shoot his foot and pierce his own palms by daring the prosecutorial establishment to put him away forever — even at the risk of bending, breaking, or brutalizing due process. That’s exactly what happened. For years, Pollard has been gripped by delusions of communal grandeur.
But he possibly now grasps that fanciful talk of political paroles and magical commutations will never work. His only hope is the rule of law that guarantees every defendant — including the worst among us — due process. It is indeed the mandatory points of law that make our nation too precious to betray — by anyone, Pollard or prosecutor.
Therefore, in the final analysis, Pollard may not deserve public sympathies. But it is clear he deserves his hearing on habeas corpus. The American form of justice and due process demand it.