The Dual Loyalty Question - Or Will Jonathan Pollard Become A Hero?

Hershel Shanks, Editor - Moment Magazine [Perspective] - February 1993

The problem with the case of Jonathan Pollard, the American Jew sentenced to life imprisonment for spying for Israel, is that it can't be resolved by his release. Indeed, his release - presumably by commutation of the sentence to time served (now seven years already) by the new president - will only escalate the interest in some unanswered questions. And that may be one reason why it won't be so easy to secure his release, despite President Clinton's pre-election promise to personally consider the Pollard case and despite the recent full-page ad in The New York Times calling for his release signed by nearly 600 rabbis and other Jewish leaders including Rabbi Norman Lamm, president of Yeshiva University; Rabbi Ismar Schorsch, chancellor of the Jewish Theological Seminary; Rabbi Alfred Gottschalk, president of Hebrew Union College; and Rabbi Arthur Green, president of the Reconstructionist Rabbinical Seminary.

A Jewish friend of mine who held a high and sensitive government position at the time Pollard was caught recently blew up at me at an otherwise warm and congenial dinner party. I had twice written about the Pollard case. The first time I had said Pollard's clearly excessive sentence was inexplicable ("How To Resolve the Pollard Case," June 1992). In my second piece on Pollard, I explained why I thought Pollard's clearly excessive sentence was a Jewish issue ("Is the Pollard Case a Jewish issue?" October 1992).

A brief reference at the dinner table to my Pollard pieces led to my friend's explosion: "I hope they never let him out; I hope he rots in prison."

It was the dual loyalty issue - not only a still persistent fear among Jews but perhaps a widespread belief among other Americans as well. As a result of the Pollard case, my friend and other Jews in similarly sensitive positions had become suspect. They may even have been the subjects of special investigations.

It is an issue that few dare to discuss openly.

After numerous discussions with people in a better position that I do know, I have come to the conclusion that two factors led to Pollard's unusually severe sentence, one of which will lead us back to the dual loyalty issue.

Incidentally, we will probably never hear from the sentencing judge, Judge Aubrey E. Robinson, Jr., on this subject. I recently wrote him the following letter:

"I am aware that judges are not required either to justify or explain the sentences they impose in criminal cases, yet the authority of and respect for our judicial system ultimately depends on the public's perception that judges are fair and unbiased.

"The life sentence you imposed in the Pollard case is very hard to understand. If any credit were given for the fact that he pleaded guilty, thereby saving the government the time and expense of a trial and the exposure of an enormous amount of classified information; the fact that he cooperated with the government after apprehension; and the fact that he spied for an ally, not an enemy - if any weight were givens to these factors, he could not have received the maximum sentence. At least so it seems to many. I don't know anyone who has defended the severity of the sentence.

"So far as I am aware, you have never explained your reasoning in imposing a life sentence in the face of these factors. I know of the very high respect in which you are held among the judiciary, the bar and the general public. Is there any forum in which you would be free to explain? If not by a letter could I interview you about the case?

"Is there any procedure or motion by which the sentence could be reconsidered by you?

"I know these are unusual questions, but this is an unusual case. There must be some way the public can be informed."

A few days later I sent him another letter:

"I just noticed the enclosed article in this morning's Washington Post, which indicates there is some precedent for what I am asking in the Pollard case. Apparently Judge William Hoeveler rather openly discussed the Noriega sentence in what the Post story calls 'an informal interview."

Here is Judge Robinson's reply:

"In reply to your letters of July 13 and July 20, 1992 please be advised that I intend to continue the practice to which I have adhered as a Judge of not discussing with the press, or the media, any of the matters in the cases over which it has been my responsibility to preside."

How then explain the sentence? I don't think it was anti-Semitism. By all accounts, this highly respected judge is not anti-Semitic. The still-secret affidavit submitted to the judge by then-Secretary of Defense Caspar Weinberger claiming extraordinary damage to American security as a result of Pollard's massive breach may have had something to do with it, but it was not the key.

Hell hath no fury like a woman spurned, said the poet. He was wrong. Hell hath no fury like a judge disobeyed. After a few years on the bench, it is very difficult for a judge not to believe, not simply that he was divinely appointed, but that somehow, in the administration of justice, he partakes of that divinity. After all, he constantly sits two feet above everyone else looking down on them. All day lawyers rise to address him, call him "your honor," belly laugh at the slightest effort at judicial humor, respectfully request permission to "approach" the bench, as the high seat on which he (and now more frequently she) sits is called. It is difficult, if not impossible, for ordinary human beings not to be affected by all this bowing and scraping. And the judges make the rules. Did you know that even in this great country, if you tell a certain person to go screw himself, you can lawfully be put in jail instantly without ever being tried - simply summarily punished? That's not true if you say that to the President. It's true only if you say that to a judge - it's called contempt of court. It's a crime. Freedom of speech doesn't apply in that situation. The judges make these rules.

Well, Pollard disobeyed the judge. While awaiting sentence, Pollard was ordered not to hive any interviews to the press. He disobeyed. He gave an interview to Wolf Blitzer, ten Washington correspondent for the Jerusalem Post.* [J4JP: Not true! See Jonathan Pollard's response below.]

But there was yet another reason for Pollard's harsh sentence. And this brings us back to the issue of dual loyalty: He was not really remorseful. True, he received money - or money was put away for him. But this was simply a way spymasters make sure their spies don't defect. Jonathan Pollard's spying was clearly ideological; he believed in what he was doing. He was a committed Zionist. He believed that, on the basis of understandings between Israel and the United States, Israel was entitled to the information he provided. He believed Israel needed this information for its defense, perhaps even for its survival.

Despite Pollard's expression of remorse at the time of his sentencing, it is doubtful that the judge believed him. As Wolf Blitzer said in his book on the case (Territory of Lies), "[Pollard] had to show his deep remorse."

Most people who have called for commutation of Pollard's sentence have, at the same time, condemned what he did, as I have. But more and more his supporters are saying - sotto voce, to be sure - that what he did was not so bad, was maybe even justified.

And if Jonathan Pollard is ever released, that question will be raised more insistently - by Pollard himself, if by no one else. And Jonathan Pollard may be able to make that case better than anyone else - at least better than anyone else willing to talk.

The Pollard case will not end with his release. It is like the Rosenberg case or the Alger Hiss case. Historians will be writing about it 50 years from now.

But it may not take 50 years. There is a new regime in Washington. Just as the new regime in Moscow is looking into the old files to find out what really happened - at places like Katyn forest - the new people in Washington will be able to look into the old files. Eventually, we will learn what Cap Weinberger said in that still-secret memo to the judge. Eventually, we will learn what Pollard gave to Israel. Eventually, we will learn whether - and, if so, how - this helped Israel during the Gulf War and according to some scenarios, helped the United States. At some point, security considerations will no longer justify keeping this information secret.

When that happens, the dual loyalty issue will again surface. "Was there any justification for Pollard's doing what he did?" will be the question. Many, including this writer, are likely to conclude no. At the very least, Pollard could have taken the matter to a higher level within the government. But many others will come to a different conclusion. For them, Pollard may become a hero. And that will make a lot of Jews uncomfortable. And it may lead many other Americans to question the loyalty of Jews.

These are the kinds of questions that will surely be raised when and if Pollard is released. This may account for the hesitation in some quarters in working for Pollard's release. There are other kinds of politically sensitive matters that Pollard and his defenders can be expected to raise once he is released and free to say what he wishes. This may explain why some elements in the Israeli government as well as the American government are not anxious to see him released.

One thing is certain. Pollard's release will not be the end of the Pollard case.

*Jonathan Pollard Responds

In the above article in Moment magazine (February 1993), editor Hershel Shanks attempts to explain my grossly disproportionate sentence and states that one of the reasons that I received a life sentence is that I had disobeyed the judge by giving an interview to the press. This is not true.

The fact of the matter is that neither Judge Robinson nor the Government barred me from talking to the press. If I wanted to meet with a reporter, all I had to do was obtain written permission from the Bureau of Prisons and restrict my comments to the Classification Guidelines established for such interviews. And this is exactly the procedure I followed for both of the discussions I had with Wolfe Blitzer prior to my sentencing.

The Government, however, did something highly suspicious on both of these occasions; namely, they neglected to send someone to monitor these interviews! Later, at sentencing, the prosecutor successfully inflamed the judge against me by claiming that not only had the interviews been secretly arranged behind their backs, but that I'd also disclosed highly classified material to Blitzer, which compromised the Intelligence community's "sources and methods." These claims are categorically false.

The prosecutors further held that my interviews constituted such a flagrant breach of the Plea Agreement that they were, in effect, an insult to the court's authority. In view of this, the prosecutors went on, the judge was urged to impose a sentence commensurate with my "treason, arrogance and continuing threat to national security." There were no charges and no evidence to support these inflammatory and false claims, but that did not deter the Government.

Moreover, the fact that I'd obtained permission to talk to Blitzer, that it was the Government's responsibility - not mine - to assure that somebody was present to monitor the interviews, and that I was never officially charged with having disclosed confidential information to Blitzer, all seems to have been lost on Judge Robinson, who subsequently handed me the harshest sentence he could - life.

Commenting on this turn of events several years later, Wolfe Blitzer stated that, as far as he was concerned, the go-ahead I'd been given to talk with him was part of a calculated scheme by the prosecutors designed to justify their planned violation of the Plea Agreement. Blitzer's take of this incident was eventually confirmed by none other than Joseph DiGenova who bragged to Robert Friedman of the Village Voice that he'd hoped the interview would be the "rope" with which I'd hang myself.

What he conveniently failed to mention, of course, was that he'd placed the noose around my neck and kicked the chair out from under my feet. But then again, why should DiGenova have been expected to remember such minor details?