Analysis: Pollard’s tragedy of errors

After a ‘perfect storm’ of mistakes on multiple sides, it’s the mundane legal act of parole that will grant Pollard his freedom this weekend.

By GIL STERN STERN HOFFMAN
November 20, 2015 15:11

Jonathan Pollard freed from prison after 30 years

Jonathan Pollard freed from prison after 30 years

 
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Dictionaries define William Shakespeare’s tragedies as his plays dealing with tragic events and having an unhappy ending, especially one concerning the downfall of the main character.

Shakespearean comedies, by contrast, are defined as his plays that have happy endings.

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Plays have already been performed about Israeli agent Jonathan Pollard, and a Hollywood film is said to be in the works. But his story does not fit either category.

Pollard’s life story has been absolutely tragic until now. There could still be a happy ending for him, but nothing can erase the events of the past three decades.

Pollard was released from Butner, North Carolina, prison after serving one day less than 30 years of his life sentence for passing classified information to an ally.

There could still be a last-minute change of plans by the US parole commission, which would not be surprising, only because Pollard has been about to be released so many times in the past.

The conditions for Pollard’s parole were not revealed officially at press time, but they were expected to include limitations on his movement and communication. He will not be giving interviews, which he did not want to do anyway, and he will be banned from using the Internet, which is virtually impossible to enforce.



The most serious limitation set to be imposed on Pollard is that, barring unforeseen circumstances, he will be prohibited from leaving America for at least five years. Unless Prime Minister Benjamin Netanyahu’s request of US President Barack Obama to allow Pollard to move to Israel unexpectedly bears fruit, Pollard’s dream of moving to Israel will apparently have to wait.

If that will indeed be the case, the campaign for Pollard’s freedom that has gone on for 25 years will shift to a struggle for his freedom of movement to the Jewish state. Perhaps Pollard himself will lead that effort, after his voice was unheard for so long, but he will most likely stay silent.

“Jonathan is not free yet,” his rabbi, National Council of Young Israel emeritus executive vice president Pesach Lerner, told Hamodia. “He won’t be free until he is standing in Jerusalem at the Western Wall, making his blessing of thanksgiving to God, with the people of Israel standing behind him to answer Amen.”

A campaign urging Obama to allow Pollard to move to Israel would not have a good chance of success, after decades of lobbying Democratic and Republican presidents to commute his sentence failed completely. In retrospect, neither of the two scenarios that were seen as most likely to bring about Pollard’s early release materialized.

There was no successful presidential persuasion, despite efforts by Israeli and American politicians, former heads of the CIA and FBI, and past confidants of Obama. Nor was Pollard freed as part of a prisoner exchange involving Palestinian terrorists or Israeli diplomatic concessions to an American president, which nearly happened at least twice.

Instead, what apparently will enable Pollard’s release is a dry legal procedure, known as parole. Parole is defined as the release of a prisoner before the completion of a sentence, on the promise of good behavior.

In this case, Pollard cannot go free completely, because although American life sentences are currently for 30 years, when he was sentenced they were for 45.

“Nothing in this case with the government is automatic,” Pollard’s lawyer Eliot Lauer told The Jerusalem Post.

“The statute required parole after 30 years, unless the government would establish to the satisfaction of the parole commission that there is a reasonable probability that Jonathan would commit a new crime upon release.”

Lauer said that for several months he and his fellow pro bono attorney Jacques Semmelman pressed the government and made several submissions, but it was not until six days before Pollard’s July 7 parole hearing that the government finally acknowledged it would not contend that upon release he would commit new crimes.

The parole commission at that point said it did not have to follow what the government was submitting, and the decision needed to be made by the parole commission aided by a full hearing. The hearing proceeded and on July 28 the commission rendered its decision for parole.

The decision was surprising, in light of the unsuccessful effort to bring about parole for Pollard a year ago.

Despite intervention by former president Shimon Peres with Obama, the parole commission’s rejection letter, which the Post exclusively obtained, was harsh in tone.

“The breadth and scope of the classified information that you sold to the Israelis was the greatest compromise of US security to that date,” the letter said. “You passed thousands of Top Secret documents to Israeli agents, threatening US relations in the Middle East among the Arab countries.”

The parole commission complained that had it not been for Pollard, the US could have received intelligence from Israel in return for the information he had provided. Given all this information, paroling you at this time would depreciate the seriousness of the offense and promote disrespect for the law,” the letter concluded.

When Lauer asked then whether the US government would once again oppose Pollard’s parole this July, a commission official replied, “Absolutely, vigorously” – indicating that it would be no different than the hearing that had just concluded.

Former senior US officials with firsthand knowledge of the classified files in the Pollard case wrote Obama protesting the parole commission’s verdict and its reasoning. They wrote that the parole process was flawed and unjust, and that the charges the commission leveled at Pollard were not supported by any evidence in the public record or the classified file.

It is unlikely the letter was the reason the parole commission did an 180-degree aboutface from one year to the next. The more likely reason is that last year’s review was a special one requested by Pollard’s lawyers, while the review after 30 years is standard.

Obama made clear when he came to Israel in March 2013 that Pollard’s release would come about via standard legal procedures.

“I have no plans for releasing Jonathan Pollard immediately, but what I am going to be doing is make sure that he – like every other American who has been sentenced – is accorded the same kinds of review and same examination of the equities that any other individual would be provided,” Obama told Channel 2 anchorwoman Yonit Levi in an interview on his visit.

The fact that others who committed the same crime as Pollard on behalf of different countries received sentences of two to four years did not appear to move Obama.

Nor did years of legal mistakes and alleged misconduct that resulted in Pollard never having a trial or an appeal.

The list goes on an on: The plea agreement the US prosecution violated by seeking a life sentence; the one-page appeal request form his lawyer of Lebanese descent, Richard Hibey, did not file on time; and the repeated failure to persuade the courts to reopen the case all kept Pollard in prison unnecessarily.

There were also political errors that resulted in the backfiring of two attempts by Netanyahu to bring about Pollard’s release in return for Israeli diplomatic concessions to US administrations, which preferred to keep holding him as a bargaining chip. Pollard himself also missed opportunities where he apparently could have helped himself had he behaved differently.

Zionist Union MK Nachman Shai, who heads the Knesset’s pro-Pollard caucus, said Israeli governments could have cooperated better with American legal authorities following Pollard’s 1985 arrest.

“The Americans see him as a special case,” he said. “Maybe it was because it’s Israel, and maybe because of the quality of the information he provided. What he did deeply upset the US, and I have never understood why.”

World-renowned criminal lawyer Alan Dershowitz, who represented Pollard after his appeal was not filed, blamed Pollard’s 30 years in prison on a toxic combination of American injustice and politics and US Jews’ indifference.

“It’s all about politics,” Dershowitz said in a phone interview. “He should have been out after five years. This is not a man who received justice.”

Dershowitz singled out the plea agreement with Pollard that was breached by the prosecution at the request of then-defense secretary Caspar Weinberger, and CIA chief George Tenet threatening to quit if Pollard was released as part of the 1998 Wye River Accords. Dershowitz told US president Bill Clinton at the time that Tenet’s objection was political and illegal, and the CIA head should have been fired for it.

According to Dershowitz, American Jewish leaders also cannot escape responsibility, because they were initially frightened by charges of dual loyalty, which caused them to fail to stand up for their fellow Jew. The Jewish leaders eventually changed their tune and united for Pollard’s release, but it was much too late by then.

“In this case, everybody made mistakes,” Dershowitz concluded. “It was a perfect storm.”

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