Civil Liberties: Habeas Corpus Justified for Jonathan Pollard

For 17 years, the question of why Jonathan Pollard is still serving a life sentence for spying for Israel has baffled his supporters.

After a months-long investigation, the record shows that Pollard received life because the legal system trampled his constitutional rights to due process after his provocative post-arrest conduct unnerved the judge, prosecutors and his own defense attorneys. Most damaging, Pollard's original defense attorney never filed the one-page appeal form within the required ten days, making any direct appeal of Pollard's life sentence impossible.

Now, only a habeas corpus petition launched by his new pro bono attorneys can get him released. That petition seems borne out by the facts.

Pollard originally negotiated a binding written plea agreement with prosecutors. The spy traded cooperation with government investigators for a promise to not request a life term, and allow pleading to the lesser offense of disclosing classified documents to a friendly government. Such offenses generally fetch less than five years in jail. Pollard did completely cooperate. But while awaiting sentencing back in 1986 and 1987, the spy launched an outrageous media campaign clearly designed to publicly pressure the judge and prosecutors.

In provocative interviews with Wolf Blitzer (then of the Jerusalem Post), Pollard bragged about his espionage. In a subsequent front-page letter from Pollard, he decried his"judicial crucifixion," and assured"the gains to Israel's long-term security were worth the risks." The letter even lamented the fact that"no one has summoned the [Jewish] community to put a stop to this ordeal."

The Jerusalem Post campaign was completely surpassed by wife Anne's audacious 60 Minutes interview. Anne told the nation,"I feel my husband and I did what we were expected to do, and what our moral obligation was as Jews, what our moral obligation was as human beings, and I have no regrets about that."

Prosecutors were outraged, as was the Judge. So was Pollard's now humiliated defense attorney Hibey, who was expected to keep his client in line.

Prosecutors hastily arranged for then-Secretary of Defense Caspar Weinberger to file an eleventh hour affidavit insisting,"It is difficult for me, in the so-called 'year of the spy' to conceive of a greater harm to national security." The"year of the spy" phrasing was a clear reference to recent life sentences meted out to America's most damaging spies, such as Aldrich Ames. The judge went along with the suggestion, disregarded the prosecution's breach of the plea agreement, and rendered a life term.

Ironically, Weinberger recently told me he omitted the Pollard incident from his published memoirs,"Because it was, in a sense, a very minor matter, but made very important." Asked to elaborate, Weinberger repeated,"As I say, the Pollard matter was comparatively minor. It was made far bigger than its actual importance."

Pollard's resulting life term could not be challenged because the one-page appeal form had not been filed."A defendant has only ten days to file a notice of appeal," explains Abraham Abramovsky, a Fordham University professor of criminal law who has studied the Pollard case."If he fails to do so, he can never again file for direct appellate review, no matter how outrageous the error."

A long list of eminent reviewers agree. Representative Anthony Weiner (NY) and other congressmen signed a November, 2000 letter to then-president Bill Clinton complaining,"Perhaps most troubling, after Mr. Pollard had been sentenced to life in prison, his attorney failed to file a Notice of Appeal… … [which] doomed Mr. Pollard to an unreviewed sentence of life in prison."

High-profile clemency efforts have been thwarted as well. Pollard has hardened the hearts of the entire intelligence establishment, including senior officers who are Jewish, by accusing them wholesale of abandoning Israel and thereby justifying his espionage. Any president who dares act on a Pollard clemency request triggers defiant opposition, as was seen when CIA director George Tenet vehemently opposed the commutation Clinton promised the Israelis at Wye River.

Pollard's international chorus of zealots have also alienated many in the Jewish community with crude attack tactics against any who dare show less than 100 percent devotion to his cause. For example, Pollard actually sued Israeli Prime Minister Ehud Barak to force weekly"progress reports."

But that is the whole point. The more alienating and noisome are Pollard's tactics, the more believable it is that the legal establishment ran roughshod over Pollard's constitutional rights-and in broad daylight with the world watching.

After 17 years, Pollard now grasps that fanciful talk of magical commutations will never work. In an exclusive prison interview, Pollard told me he now only wants people to focus on his legal rights, not any supposed notions of his Jewish importance."I'm a very small person in the course of Jewish history," Pollard conceded."I'm a footnote; a small footnote at that. … I really screwed up and … I can't screw up again."

Therefore, in the final analysis, Pollard may not deserve public sympathies. But it is clear he deserves his hearing on habeas corpus. The American form of justice and due process demand it.

Copyright 2002

Edwin Black

All Rights Reserved