The first two questions that new US Ambassador Daniel Shapiro was asked by
Channel 2 diplomatic correspondent Udi Segal on Israel’s highest-rated news show
last week were both about the fate of the Israeli agent Jonathan Pollard, who
has served over 25 years in jail for espionage.
Despite the importance of
the issue to Israelis, it would have been understandable had Shapiro
diplomatically declined to address such a sensitive matter. But that’s not what
he did.RELATED:Esther Pollard: Jonathan 'conscious, aware' after surgeryPro-Pollard activists shut down White House switchboard
In bypassing the questions, Shapiro passed the buck and called
Pollard’s fate “an issue for the American legal system.”
If only it were
Pollard’s case is not before the courts. Even though the merits of
his case have never been heard in a court of law, all his legal remedies have
The US Constitution grants the president nearly unlimited
powers of clemency, specifically for cases like this, where the justice system
cannot or will not correct itself.
While the president is free to consult
with the justice system or the White House counsel, who receives recommendations
from the US pardon attorney, he is under no obligation to do so.
Office of the Pardon Attorney in the Justice Department was created to assist
the president with the sheer volume of work done in investigating and making
recommendations for clemency, but the president is neither bound by nor limited
by the office’s work. He does not require the pardon attorney’s or the White
House counsel’s recommendations, and he does not have to follow any prescribed
routine or investigation.
Bill Clinton’s tenure is a case study in the
unlimited power to grant clemency. Some of the more extreme examples include the
pardons Clinton gave international commodities trader and indicted tax evader
Marc Rich and to 16 members of FALN, a Puerto Rican nationalist group
responsible for 130 bombings in the US in the late 1970s and early
Given that the US justice system has not given Pollard a proper
forum and no more legal remedies exist, his attorneys filed an appeal for
clemency with President Barack Obama in October 2010. Although the formal filing
by the attorneys was done via the pardon attorney, it was addressed to the only
person who can grant clemency to a prisoner: Obama himself.
words, Pollard’s case is now formally awaiting the decision of Obama, and no one
else. His case is officially before the president and has been since
When Prime Minister Binyamin Netanyahu and President Shimon
Peres made their official requests for Pollard’s release, they made it directly
to the president and not to the pardon attorney or the White House
Netanyahu and Peres await a response from Obama, not from the
American legal system.
Similarly, all of the high-ranking American
officials from former CIA director James Woolsey, to former secretaries of state
George Schultz and Henry Kissinger, to former US attorney-general Michael
Mukasey have appealed for clemency for Pollard in the form of commutation of his
sentence to time served directly to the president, not the Justice
To sum things up: Jonathan’s fate is squarely in the hands of
Obama. The legal system is no longer relevant, so anyone who points to it as
being responsible for responding to requests for clemency for Pollard is
Normally, ambassadors can be excused for missteps
because they are functionaries who aren’t particularly close to decision-makers.
This may have been the case with Shapiro’s predecessor, James Cunningham, who
blamed the decision not to permit Pollard to attend his father’s funeral on the
American justice system, even though US officials said Cunningham had been
consulted on the matter.
This may also be true regarding Cunningham’s
predecessor, Richard Jones, who had to apologize for telling an audience at
Bar-Ilan University in May 2007: “The fact that he wasn’t executed is the mercy
that Jonathan Pollard will receive.”
But Shapiro is different. His status
as the president’s most trusted adviser on the Middle East predates Obama’s
election. As an expert on US-Israel relations, he should know better.
started off on the wrong foot.
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