Jonathan Pollard red, white and blue.
(photo credit: Courtesy)
The striking new CIA disclosures that my husband, Jonathan Pollard, did not
transmit information about the United States to Israel reaffirms that there is
no justification for his continued incarceration after 28 years in prison.
Unfortunately, the new CIA disclosures do not provide a legal basis for
reopening his court case.
Contrary to popular misconception, the US does
not permit prisoners an endless number of appeals. The legal remedies available
to a prisoner are severely restricted. Jonathan has used up all of
Some background to understanding Jonathan’s Catch-22 dilemma: First
of all, as unbelievable as it seems, Jonathan has never been allowed a direct
appeal of his life sentence in a court of law. His own attorney deprived him of
Jonathan pleaded guilty, cooperated fully (which the recent
CIA disclosure acknowledges) and had a plea agreement in which the US government
agreed not to ask for a life sentence. Nevertheless, in breach of the agreement,
the government asked for a life sentence. Jonathan’s then-lawyer did nothing to
protest, allowing the judge to grant the government’s request and Jonathan was
sentenced to life in prison.
Jonathan’s lawyer then compounded the
disaster by failing to file a one-page notice of appeal within ten days. At that
time, Jonathan was being held incommunicado and he had no way of knowing that
his attorney was discarding his rights. Consequently, the attorney’s failure to
file deprived my husband forever of the right to any direct appellate review of
his life sentence.
The only challenge to the sentence that remained
available under American law was a collateral attack called habeas corpus, which
imposes a much higher burden of proof on the prisoner than would a direct
appeal. In 1990, Jonathan obtained a different lawyer who filed a habeas corpus
petition with the court.
In 1992, the Court of Appeals, in a two-to-one
decision, denied Jonathan’s habeas corpus petition. Two justices ruled that he
had not met the higher burden of proof required as a result of his original
lawyer’s foul-up. This amounts to being told, “Tough luck, Buddy. Stay in jail
for the rest of your life because your original lawyer did not protect your
right to appeal!” One conscientious judge disagreed with the majority, writing
that Jonathan’s life sentence represented a “fundamental miscarriage of justice”
requiring relief. This dissenting judge said that the government’s breach of the
plea agreement was sufficient reason for Jonathan’s sentence to be vacated, even
under the higher standard that applies to habeas corpus review.
Lauer and Jacques Semmelman of Curtis, Mallet-Prevost, Colt & Mosle LLP
became Jonathan Pollard’s pro bono attorneys in May 2000. An executive summary
on the Justice for Jonathan Pollard website provides an overview of the legal
initiatives undertaken by Lauer and Semmelman, between 2000 and
Despite the intensive efforts of Jonathan’s dynamic new legal team,
the American justice system denied their new habeas corpus petition which sought
to bring the case back to court on the ground of ineffective assistance by the
original lawyer. The courts denied the petition on the basis of the statute of
limitations, which had long since elapsed as Jonathan sat in jail, unaware of
these legal niceties.
When all legal remedies in the Court of Appeals had
been exhausted, the attorneys petitioned the US Supreme Court, which also
refused to hear the case. To this very day, the merits of Jonathan’s case have
never been heard in a US court of law. Unfortunately, nothing in the new CIA
revelations makes any difference to the Catch-22 rule that Jonathan has used up
all of his legal appeals.
Even if Caspar Weinberger himself were to
return from the grave today, offering to testify that the US government
deliberately hijacked the legal process which resulted in my husband’s life
sentence, Jonathan would not be permitted to bring the case back to court for
Weinberger to testify. No more legal appeals means exactly that.
is parole a viable option. As Jonathan’s attorneys have repeatedly explained:
“Applying for parole is not an option for Mr. Pollard, because of a severe
impediment which has been unilaterally imposed by the Department of Justice
(DOJ). The DOJ has refused to allow Mr. Pollard’s current attorneys, Eliot Lauer
and Jacques Semmelman (both of whom have the appropriate Top Secret/SCI-eligible
security clearances), from seeing the documents that were submitted to the
sentencing judge prior to Mr. Pollard’s sentencing in 1987. Although Mr.
Pollard’s lawyers have a clear ‘need to know,’ the DOJ has refused to allow them
to see their client’s entire court file, which is partly under seal. Without
access to that file, persons opposed to parole know that they have free reign to
say absolutely anything about Mr. Pollard without any risk that they will be
contradicted by the documents.”
Nor is there an “automatic release” date
for Jonathan on November 21, 2015.
This too is a popular misconception.
The 2015 date, which appears on the Bureau of Prisons’ website, marks the 30th
anniversary of Jonathan’s arrest.
It is not a release date, but a time at
which Jonathan can request parole.
The US government will still be able
to hide behind a veil of secrecy and vigorously oppose parole at that time. The
only option remaining is presidential commutation to time served.
newly declassified 1987 CIA damage assessment puts the lie to American
allegations that have been used for over a quarter of a century to justify
Jonathan’s continued incarceration. A second government damage assessment by the
Justice Department (the1987 Victim Impact Statement), now public record, forever
lays to rest the falsehood that Jonathan damaged US national security. By any
standard of fairness, the only conclusion that can be drawn from the combined
weight of both government damage assessments is that Jonathan should not have to
remain in prison a second longer.
While this travesty of justice may not
have originated on President Barack Obama’s watch, it has been fully revealed
under his tenure. It is precisely for cases like this, where the US justice
system is unwilling or unable to correct itself that the American Constitution
grants the president virtually unlimited powers of clemency. Justice requires
that Obama use his powers of executive clemency to release Jonathan Pollard now.