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House arrest for Jonathan Pollard - as advocated by attorney Eric Sherby in his October 6 Post op-ed - in light of the profound injustice of this case is an absurd proposal.
It is an open secret in Washington that Jonathan is serving a life sentence not because of what he did, but because of what he represents - the State of Israel.
Conventional wisdom holds that Jonathan has had his day in court. In point of fact, every legal appeal to uphold Jonathan's constitutional right to a fair hearing has been summarily rejected on one technicality or another. In layman's terms, the case has never been heard.
Even in spite of the endorsements of such august organizations as the ACLU, the National Association of Criminal Defense Lawyers and the American Association of Jewish Lawyers and Jurists, and a host of top legal experts, the merits of the case for the release of Jonathan Pollard have never been heard in an American court of law.
According to top US officials, Jonathan Pollard is a political hostage.
Dennis Ross, former US special envoy to the Middle East, explicitly acknowledged that Jonathan deserved to be freed unconditionally, but was being held by the US because of his value as a bargaining chip. In his book The Missing Peace, Ross wrote that he advised president Bill Clinton at Wye to save Jonathan as a bargaining chip in the final status negotiations with the Palestinians.
Jonathan's use as a political tool was also confirmed in a 2002 interview with the late secretary of defense Caspar Weinberger, who is "credited" with driving Jonathan's life sentence. Weinberger admitted that "the Pollard matter was comparatively minor. It was made far bigger than its actual importance" to serve another political agenda.
It is inescapably apparent that there is a correlation between the US's handling of spy cases and American foreign policy. The recent sentencing of former Pentagon analyst Ronald Montaperto to a three-month sentence for years of passing highly classified information to the Chinese illustrates how the American justice system bent over backward so as not to antagonize the Chinese.
On the other hand, the unduly harsh treatment of Jonathan Pollard and the perpetuation of his grossly disproportionate life sentence leave no doubt about successive administrations' unrelenting covert hostility towards the Jewish state.
Montaperto's spying for more than a decade reportedly damaged America's ability to monitor China's covert sales of arms to nation-sponsors of terrorism, such as Iran and Syria. Nevertheless, in deference to China, prosecutors downgraded the charges against Montaperto to "mishandling of classified information," which carries no more than a four-year sentence. Letters to the judge from Montaperto's colleagues pared his punishment down to a mere three months!
IN JONATHAN'S case, prosecutors railroaded him into a accepting a plea-bargain agreement, which he honored and the US violated, sentencing him to life in prison. The median sentence for the offense Jonathan committed - one count of passing classified information to an ally with no intent to harm the US - is two to four years, not life!
Senior American legislators who have reportedly seen the classified portions of the Pollard file - Sen. Charles Schumer, Rep. Anthony Weiner and former New York mayor Rudy Giuliani - are on record that there is no evidence to justify a life sentence. Appellate Court Judge Stephen Williams, in a dissenting minority opinion, called this case "a fundamental miscarriage of justice."
Although the Justice Department allows access to the classified portions of Jonathan's file to officials who are interested in maintaining Jonathan's incarceration (24 such instances of access are part of the court record), it refuses to allow Jonathan's security-cleared attorneys access. The courts, in lock-step fashion, have upheld the government's assertion that Jonathan's attorneys "have no need to know" what is in their client's file.
However, and notwithstanding all of the foregoing, the single most cogent factor in the ongoing persecution of Jonathan Pollard is the failure of the government of Israel to step up to the plate and demand his release. Israel officially recognized Jonathan as its agent in 1998, but has never acted to secure his release.
In point of fact, Israel has already "paid" for Jonathan's release several times over (including freeing 750 murderers and terrorists with blood on their hands as part of the Wye Accords), but has never collected its due.
Instead, since Wye successive Israeli governments have cravenly wiped Jonathan from the agenda for fear of antagonizing the US. The more Israel tries to duck responsibility for its agent, the more this gives aid and comfort to elements in the Justice, intelligence and Defense departments who continue to exploit the Pollard case to the detriment of Israel and the Jews.
House arrest would be a boon to these elements. It would not end the injustice nor grant Jonathan the freedom to which he is entitled. Additionally, it would bode ill for the rest of Israel's captives.
Israel now has three new captives, Gilad Shalit, Eldad Regev and Ehud Goldwasser. Their very lives may depend on Israel's willingness finally to stand up for its rights. If Israel is incapable of dealing forthrightly with her American ally for the release of an agent in captivity, what hope is there for the captives in the hands of Israel's enemies?
Next month, two weeks before Jonathan enters his 22nd year of a life sentence, Prime Minister Ehud Olmert will meet with President George W. Bush. It is up to Olmert, to demand an end to this travesty of justice and bring Jonathan home.
It is precisely for cases such as this, in which the justice system has failed, that the US Constitution grants the president unlimited powers of clemency.
There is no other solution.