Jonathan Pollard: Separating Fact From Fabrication

Recent media reports have cast the spotlight once again on Jonathan Pollard, a Jewish-American, who in the 1980s confessed to spying for the State of Israel, and has been imprisoned for more than 28 years.  He is currently serving his sentence at the the Federal Correctional Institution in Butner, NC.

Pollard is a polarizing figure who generates strong opinions both from those who feel his life sentence should be commuted to time served and those who believe he should never be paroled or set free.  Even among American Jews and non-Jews who strongly support Israel, there are deep divisions concerning what should be the fate of Pollard.

As U.S. Secretary of State John Kerry has scrambled recently to keep the current round of talks between Israel and the Palestinians from derailing, Pollard’s name has repeatedly surfaced related to the possibility that the U.S. government would release him as a goodwill gesture to Israel, provided Israel agrees to release 26 Palestinians with “blood on their hands” being held in Israeli prisons, in addition to another potential 400 prisoners who have not committed capital crimes.

What follows is a Q&A pertaining to Jonathan Pollard.  It provides insights for those who know little about his case, as well as those who have watched it closely for many years.

An audio interview enumerating these facts, recorded in November 2006 with Pollard’s wife Esther, can be heard here.  I conducted the interview, along with Dr. Donald Salem, a Los Angeles-based pro-Israel advocate.

Who is Jonathan Pollard?

Jonathan Pollard is a former American naval intelligence analyst who spied against the United States on behalf of Israel in the early 1980s. He was caught and imprisoned in 1985.

So Pollard committed treason?

No. The laws concerning treason are only applicable during times of war or with regard to enemy nations. Because Israel and the United States are allied nations, Pollard’s crime was “passing classified information to an ally, without intent to harm the United States.”

Even if he didn’t intend to, did Pollard harm the United States?

No. The classified information that Pollard passed to Israel pertained to the WMD capabilities of countries – such as Syria, Iran, Iraq, and Libya – that threatened to attack Israel and its civilian sites. The United States was obligated to provide Israel this very same information under a 1983 Memorandum of Understanding, but did not.

When Pollard discovered that Israel was not given the defensive information that it was promised, he asked his U.S. intelligence superiors about it, and was told: “Jews get nervous talking about poison gas; they don’t need to know.”

Pollard passed the information to Israel anyway. At no point was the safety of U.S. citizens compromised.

Still, as a naval analyst, Pollard should not have gone over the head of his superiors like that.

Absolutely correct. Regardless of the considerations and motive, Pollard committed a serious crime when he shared the classified information with Israel.

So he deserves his life sentence?

In the United States, the median sentence for crimes similar to that committed by Pollard is between two and four years, total. After Pollard’s sentencing, the law regarding punishment for passing classified information to an ally was amended. The maximum sentence for such a crime now stands at 10 years.

Other individuals who have spied for allied nations against the United States, such as Michael Schwartz (not Jewish) on behalf of Saudi Arabia in the 1990s, have received a sentence as light as naval discharge, with no jail time.

Even individuals who have spied for enemy nations, such as Iran’s Mohammad Reza Alavi in the 2000s, have received sentences as light as two years.

So no, Jonathan Pollard – compared to those who engaged in similar misconduct – did not and does not deserve his life sentence.

Well the United States doesn’t just go handing out life sentences for no good reason. Why was Pollard singled out to receive such harsh treatment?

As part of a plea bargain seeking a lighter sentence, Pollard pled guilty to the crime of passing classified information. By doing so, he avoided embroiling the U.S. and Israel in a lengthy and potentially embarrassing trial. Nonetheless, in violation of that agreement with Pollard, the American government sentenced him to life, and recommended against parole.

The key determining factor was a 46-page memo to the judge from then U.S. Secretary of Defense Caspar Weinberger. The contents of that memo, which is the reason most frequently cited to explain Pollard’s harsh sentence, are classified.

Nobody, including Pollard and his lawyers, has been allowed to examine the memo that condemned him.

What about anti-Semitism?  Is that a possible explanation? 

Many observers believe anti-Semitism may be a factor. More likely, however, is the concern of U.S. presidents, including George H.W. Bush, Bill Clinton, George W. Bush and Barack Obama, that freeing Pollard would be viewed in some sectors as bowing to Israel and the so-called “Jewish lobby.”

It has not been in the self interest of any U.S. president to risk his political capital to release Pollard.  So while it’s doubtful that anti-Semitism is behind Pollard’s continued incarceration, it is highly likely that if Pollard was not Jewish and had been spying for a different American ally – say France or England – he’d be a free man long ago.

Why didn’t Pollard appeal his sentencing, which appears to have violated his fifth amendment (due process) and eighth amendment (cruel and unusual punishment) rights?

Pollard wanted to appeal, but his attorney missed the filing deadline. Pollard subsequently asked for the right to appeal, but lost that case.

Some theorize that the reason that Pollard has remained in jail for so long is because the information he gathered for Israel was then passed to the Russians, in exchange for the release of Jews from the Soviet Union. If that were the case, wouldn’t it explain his life sentence (the USSR was – of course – an enemy nation)?

Even if that scenario were true, it still wouldn’t affect the outcome of the Pollard case.

Let’s say that Pollard directly passed information to the Soviet Union. Some people who were direct couriers of U.S. secrets to the Russians received sentences as light as two or three years when caught.

If released, might Pollard still use his spy knowledge against the U.S.?

At the time that Pollard was passing classified documents, the world was a very different place. “Back to the Future” had not been released, “The Simpsons” had yet to air its first television episode, and Prince William, the Duke of Cambridge was only approaching his second birthday.

The World Wide Web was a decade away from common use, Apple computers held far less information than do most thumb drives today, and President Barack Obama was living in New York under the name “Barry” – just old enough to legally drink for the first time.

The point is, any information that Pollard may have obtained during the period that he was active (1983-1984) is long outdated, irrelevant, and unable to do any harm in the modern world.

What if Jonathan Pollard wasn’t spying exclusively for Israel? What if he was getting paid to spy for Pakistan or South Africa?

Even if that scenario was true, it still wouldn’t affect the outcome of the Pollard case, as both Pakistan and South Africa – like Israel – are U.S. allies.

I still don’t like Jonathan Pollard. His espionage calls into public question the loyalty of American Jews towards the United States. I simply can’t support his release from jail.

One need not like or respect Pollard to recognize the importance of the previously mentioned facts regarding his sentencing.

Moreover, Pollard specifically addressed this issue in his 1991 public letter of apology to the American Jewish community, writing:

I regret the adverse effect which my actions had on the United States, and the Jewish community. I am now and have always been very proud to be a citizen of this country. Moreover, the loyalty of American Jews to their Nation and its laws has been unwavering and intense.

In fact, American Jews have been particular champions of our legal system in good part because they know that our American law is the major bulwark against bigotry toward minority groups. In taking the actions I did, I failed to understand the critical nature of this stance, and the ammunition my actions provided to anyone who might want to accuse American Jews of having dual loyalties.

During the past six years in prison, I have also reflected on how and why, despite my idealism about the world and Israel’s place in it, I was capable of taking the actions I did. The answer has come to me, I think, through the maturity gained since the day of my arrest. My problem stemmed not from dual loyalties, but from my anxiety that the past would repeat itself unless I intervened.

Unfortunately, I failed to appreciate the fact that such concerns did not justify my indifference to the law. In my mind, though, assisting an ally did not involve or require betraying the United States. I never thought that enhancing Israel’s security would in any way jeopardize America’s strategic interests. But that judgment was not mine to make.”

Ultimately, Pollard’s behavior was not enough – either from a legal or humanitarian perspective – to condemn him to serving a life sentence for a crime typically associated with a two-to-four-year prison term.

Israel spies on America.  It’s true.

But America also spies on Israel and many other American allies. This is the way of the world, as most people understand it (underscored most recently by disclosures pertaining to the NSA scandal).

Have any public officials called for Pollard’s release?

Yes, including:

Former U.S. Attorney General Michael Mukasey – “In more than 18 years on the bench, I imposed [life] sentences on four defendants. [Murderers and terrorists]. Pollard’s offense does not nearly approach any of those….Pollard has suffered confinement well beyond the severity of what he did.”

Former Secretary of State Henry Kissinger – “I believe justice would be served by commuting the remainder of Pollard’s sentence of life imprisonment.”

Former CIA Director James Woolsey – “It is time for [Jonathan Pollard] to be released…and there should not be any quid pro quo.”

Former Soviet Jewish prisoner Natan Sharansky – “The time has come to vigorously and loudly demand his freedom.”

New York Senator Charles Schumer – “[T]he lifetime sentence imposed on Mr. Pollard is unduly severe and inconsistent with the sentences awarded to other Americans convicted of similar offenses. Indeed, Mr. Pollard’s sentence is harsher than the sentences meted out to individuals convicted of spying for enemy countries and is the harshest sentence in United States history for the crime of spying for an allied country.”

Gilad Schalit, former IDF soldier who was kidnapped by Hamas – “These days I cannot help but feel the great pain of Jonathan Pollard, jailed some 29 years — five times longer than my period of captivity, and this is the United States, our great friend.”

And, ironically…

U.S. Secretary of Defense Caspar Weinberger – “[T]he Pollard matter was comparatively minor. It was made far bigger than its actual importance.”

Should Pollard be released by the United States?

While emotions run high on this topic, an objective examination of the record makes it abundantly clear that Pollard has paid for his crimes and should be freed.

Should Pollard be released by the United States as a means of encouraging Israel to release Palestinian terrorists in the peace talks?

Nobody died because of Jonathan Pollard; no one was hurt.

If anything, innocent lives were saved. Releasing Pollard in an exchange for convicted terrorists – the murderers of Jews and other innocents – wrongly equates the two actions: Protecting Israel from WMDs and cold-blooded, indiscriminate terrorism.

Furthermore, releasing Pollard as part of a terror deal would be a de facto admission by America (and Israel) that his time-served is justified.

Finally it would prove what many have long suspected: Pollard’s imprisonment has been political in nature all along.

So no, as much as Pollard deserves to be freed, doing so as part of a “terrorist swap” is wrong.  Jonathan Pollard must be a free man – but not at any price.