Convicted Israeli spy Jonathan Pollard departs US District court after a hearing with his wife Elaine in the Manhattan borough of New York December 14, 2015..
(photo credit: LUCAS JACKSON / REUTERS)
"There may be times when we are powerless to prevent injustice,” said Nobel Laureate Elie Wiesel, “but there must never be a time when we fail to protest.”
That’s the primary reason why the Jonathan Pollard case has resonated among fair-minded Americans for the past quarter- century, those who recognize that while their justice system usually works remarkably well, when it fails it is incumbent on them to try setting it straight.
Simply put, Pollard’s life sentence for passing classified information to Israel was so grossly disproportionate a punishment for an offense that ordinarily carries a fine or two to four years in jail that it’s cried out for redress ever since his conviction 30 years ago.
Pollard was released on parole late last month, but he is far from a free man.
As has been amply reported in Israel but scarcely noted in American media, the conditions of his parole are among the harshest ever meted out: he is required to wear an electronic ankle bracelet to track his whereabouts, and is subject to unfettered monitoring and inspection of his computer and cell phone both at home and at work.
A strict 7 p.m. to 7 a.m. curfew makes it difficult for him, an observant Jew, to travel to and from work, or to attend prayer services.
Out of an apparent fear that he would flee the country, he is also forbidden to go near any international airport.
Those conditions were challenged earlier this week in a federal court in Manhattan.
US District Judge Katherine Forrest in Manhattan found that the US Parole Commission had provided little basis to justify why Pollard must wear an electronic bracelet and submit to monitoring of his work computer, and ordered the commission to clearly state whether it believed that he still possessed confidential information after 30 years in prison.
US law in this area is relatively straightforward.
Conditions for parole must be reasonably related to the goals of probation, such as rehabilitation. The limitations placed on most offenders generally relate to drug use and monthly reporting of their activities. Constitutional rights enjoyed by law-abiding citizens should be accorded to probationers, including the ability to travel outside the country. As such, the restrictions put on Pollard – who by all accounts was a model prisoner and often expressed remorse for his offense – appear to be little more than vindictive and punitive.
Federal courts have ruled that if the liberty interest at stake in a decision involving a condition of release is fundamental, a deprivation of that liberty is reasonably necessary only if it is narrowly tailored to serve a compelling government interest.
No such interest has been demonstrated here.
Although prosecutors and members of the intelligence community have often labeled Pollard a traitor, he was never charged with nor convicted of treason, defined by the Constitution as consorting with an enemy during wartime. Nor was there anything in his indictment to suggest he intended harm to America – or that he compromised the nation’s intelligence-gathering capabilities or caused injury to any of its agents.
Pollard’s most staunch defenders make no apology for his actions, but have ample reason to maintain that he was the victim of a monumental miscarriage of justice.
Among the uncontroverted facts are these: • In lieu of a trial, the government entered into a plea agreement under which it promised not to seek life imprisonment in return for Pollard’s cooperation. The Justice Department acknowledged in court that he had cooperated fully. Nevertheless, chief prosecutor Joseph DiGenova said immediately after sentencing he hoped Pollard “never sees the light of day.”
• Pollard was sentenced largely on the basis of private statements to the judge by then secretary of defense Caspar Weinberger, which were never seen by Pollard’s lawyers nor subjected to cross-examination.
Our system of law requires that an accused be confronted by, and given an opportunity to challenge, his accusers. Nowhere does his indictment allege that he gave classified information to three other countries before working for the Israelis, or that he betrayed worldwide intelligence data, as is often alleged in the media.
• Pollard’s subsequent appeal of his sentence was upheld on narrow procedural grounds – he had failed to file in a timely fashion. The dissenting judge in that decision, Stephen Williams, concluded that the government’s breach of the plea agreement was “a complete and gross miscarriage of justice.”
So too are the conditions put on Pollard’s parole, which reflect a never-ending animus by federal prosecutors – including those who had entered into the initial plea agreement by which Pollard fully abided but they shamelessly abrogated.
• As the famous French lawyer-philosopher Georges Montesquieu put it, “There is no crueler tyranny “than that which is perpetuated under the shield of law and in the name of justice.”Kenneth Lasson is a professor of law at the University of Baltimore, specializing in civil liberties and international human rights.