Following the release of Gilad Schalit from the clutches of Hamas in the Gaza
Strip, one of the questions most often asked to spokesmen for Israel who address
audiences in the United States is why Israeli agent Jonathan Pollard remains in
an American federal prison.
Pollard will enter his 27th year in captivity
on November 21, even though the median sentence for those convicted of passing
classified information to an ally is just two to four years.
No one else
in American history has ever received a life sentence for this
Successive Democratic and Republican regimes in Washington can
be blamed for not commuting Pollard’s sentence. Some hold American Jewish
leaders responsible for not taking a public stand on Pollard until recently and
still not taking enough action.
The last seven prime ministers of Israel
undoubtedly could have each made Pollard a higher priority.
exclusive look at Pollard’s request for clemency from US President Barack Obama,
which he submitted a year ago, tells a deeper story of intrigue, legal
misconduct and the interference of an American defense secretary known for being
Pollard filed his request for clemency last October and over
the past year added seven supplemental filings with letters to Obama calling for
his release from many current and former senior American and Israeli officials.
After a plea from Pollard’s wife Esther, Prime Minister Binyamin Netanyahu
followed up with his own formal request three months later.
A White House
spokesman confirmed in May that such requests tend to be answered within six
weeks. He has not said why Obama has been dragging his feet.
requests were also filed in 1992 to thenpresident George Bush, in 1993 to
then-president Bill Clinton, and in 2008 to then-president George W. Bush. The
first two announced that they had denied the request to commute Pollard’s
George W. Bush left office without responding to the request at
While the US Board of Prisons web site lists a “presumptive parole
date” in 2015, following 30 years of Pollard’s sentence, the US Justice
Department is expected to oppose parole, so Pollard is unlikely to apply. If he
did apply and was rejected, it could bar him from requesting parole for another
15 years and harm chances of persuading a president to grant
Those close to Pollard warn that due to his poor health, he may
not survive four more years in prison. His clemency request reveals for the
first time his long list of ailments: Diabetes, nausea, dizziness, blackouts and
ongoing issues with his gall bladder, kidneys, sinuses, eyes and feet. He also
suffers from Meniere’s disease, which causes him to lose consciousness and fall
Despite an exemplary prison record, applying for parole
is also not an option for Pollard because of a severe impediment unilaterally
imposed by the US Justice Department preventing his pro bono attorneys, Eliot
Lauer and Jacques Semmelman, from seeing key documents that were submitted to
the judge before he was sentenced in 1987.
Requests for the lawyers to
have access to Pollard’s file have been rejected even though both lawyers
obtained the appropriate “top secret” security clearances.
lawyers have not seen their client’s entire court file, those opposed to parole
have free reign to say anything about Pollard without the risk of being
contradicted by the documents.
Explaining that their client was not
seeking to exonerate himself via a pardon, Pollard’s lawyers wrote in the
clemency request that “while there are serious and substantial issues
surrounding the sentencing process, Mr. Pollard has exhausted his remedies in
the US court system.
His sole remaining avenue of relief from his life
sentence is executive clemency.”
The request lists Pollard’s offense as
“conspiracy to deliver national defense information to a foreign government,”
but Pollard stressed in his own words: “I was never charged with, nor did I
plead guilty to harming the United States or aiding a foreign government that is
an enemy of the US.”
Pollard has expressed his remorse for his crime on
multiple occasions and also made a point of reiterating his remorse in the
document. The loyalty that he expresses to the US sounds surprising from a man
who hasn’t exactly been treated well by American institutions.
never, to this day, lost my love, respect, and gratitude for everything this
country has given me,” Pollard wrote. “I deeply regret what I did.
my intention at the time I committed this offense was only to help protect
Israel and never to cause damage to the US, I have long since come to understand
that what I did was wrong and that I should have acted on my concerns in a more
appropriate, legal manner."
Pollard received a life sentence on March 4, 1987,
despite a plea agreement he signed a year earlier in which he committed to plead
guilty and cooperate fully with the investigation against him in return for a
commitment by the American government not to seek a life sentence.
to the sentencing, the Department of Justice submitted a victim impact statement which revealed that no concrete harm had been done to the US as a result of
But then-American defense secretary Caspar
Weinberger submitted a 46-page classified declaration two months before the
sentencing that apparently claimed the opposite. Just one day before the
sentencing he submitted another, shorter letter to the judge in which he falsely
accused Pollard of causing at least as much harm to American national security
as had spies for the Soviet Union who were given life sentences.
of the Weinberger declaration that are in the public record indicate that it
consisted largely of projections of possible future harm.
lawyer at the time, who had full access to the document, responded to it by
saying that “Secretary Weinberger nowhere alleges that the US has lost the lives
or utility of any agents, that it has been obligated to replace or relocate
intelligence equipment, that it had to alter communication signals, or that it
has lost other sources of information, or that our technology has been
Indeed the memorandum only discusses the possibility that
sources may be compromised in the future.”
Years after other agents were
convicted of revealing information that Pollard was accused of leaking, his
current lawyers wrote in the clemency request that it is likely that many of
Weinberger’s projections never came to pass and that scrutinizing his
declaration would confirm that.
“The passage of nearly a quarter century
has demonstrated that the anticipated harm to the US has not materialized and
never will,” the lawyers wrote. “Inasmuch as Mr. Pollard’s life sentence was
premised, in substantial measure on these projections, commuting of the sentence
would be just and appropriate.”
Weinberger’s downplaying of Pollard’s
case in a 2002 interview with journalist Edwin Black substantiated the lawyers’
belief that the harm Weinberger projected did not materialize.
Pollard matter was comparatively minor,” Weinberger told Black. “It was
made far bigger than its actual importance.”
Weinberger’s deputy at the
time of the Pollard affair, Lawrence Korb, who is currently one of the most
outspoken advocates for Pollard’s release, recently said that “Weinberger had an
almost visceral dislike of Israel.”
If Weinberger’s declarations were so
damaging, why didn’t Pollard object to the last-minute submissions, rebut them
or request a hearing at which the government would have had to prove
Weinberger’s charges or withdraw them? The apparent answer is that Richard
Hibey, the lawyer of Lebanese descent whom Israel paid to represent Pollard,
did not tell him that he was entitled to any of those approaches. Pollard’s
clemency request includes a lengthy opinion written by former federal judge
George Leighton of Chicago in which he blamed Hibey for not preventing the life
sentence Pollard received.
“The evidence shows 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 life sentence,” Leighton wrote. “He
was deprived of effective assistance of counsel as a result of his counsel’s
failure to deal competently with unproven, highly damaging eleventh hour factual
assertions made by the government in a supplemental declaration of secretary of
defense Caspar Weinberger submitted the day before sentencing.”
problematic mistake by Hibey, who later represented the Palestinian Authority in
American courts, was that after the sentencing, he did not file a onepage
request for an appeal within the required 10 days. This barred Pollard from ever
appealing his life sentence, and as a result, there has never been any direct
appellate review of the sentencing.
Lauer and Semmelman, who became
Pollard’s lawyers in 2000, have attempted unsuccessfully to bring the case back
to courts, but their efforts have been rejected on procedural grounds, leaving
clemency by an American president as the only way Pollard can leave prison
“After nearly 25 years, we respectfully suggest that further
incarceration of Mr Pollard would serve no purpose,” Lauer and Semmelman wrote
Obama. “Any deterrent effect on others based on the sentence’s severity has been