The American Congressional Record:
Fairness for Jonathan Pollard
Congressional Record
Hon. Eliot L. Engel of New York
In The House of Representatives
Tuesday, May 13, 1997
I do not believe that what Jonathan Pollard did was right. It was wrong; it broke the law and Jonathan Pollard deserved to be punished. Jonathan Pollard is the first to admit that. In fact, at a recent meeting I had with him at the Federal prison in Butner, NC, where he is incarcerated, he told me that he was wrong and deserved to be punished.
My problem with the entire Jonathan Pollard case is that while I don't expect him to be treated any better than anyone else committing similar acts, I certainly don't expect him to be treated any worse. The fact of the matter is that Jonathan Pollard has now served more than 11 years of a life sentence, far greater than anyone else convicted of similar crimes. In fact, a number of people convicted of spying for enemy countries, such as the former Soviet Union, have been given lighter sentences than Mr. Pollard - who was convicted of spying for a friendly country.
It is my understanding that Mr. Pollard pled guilty and
avoided
going to trial in exchange for a promise that the Justice
Department would not ask for a life sentence for him. Although
the
Justice Department did not per se request a life sentence,
others,
including Caspar Weinberger, did. Thus, Mr. Pollard was given a
life sentence, even though he had been led to believe he would
face
lesser punishment.
The two articles I am submitting into the Congressional Record
tell of the disparity of the Pollard case when contrasted with
another person who passed classified information to Saudi
Arabia.
As one can tell from the articles, the indictment of the person
accused of spying for the Saudis was subsequently dropped in
exchange for a last minute plea bargain agreement offered by the
Navy in which the alleged perpetrator spent not 1 day in jail
and
received only an other-than-honorable discharge.
I believe that questions of fairness and equity need to be
addressed in the Jonathan Pollard case. It is my contention
that
Jonathan Pollard has not been treated justly when one contrasts
his
length of incarceration with others who have been convicted of
similar crimes. People should be punished when they break the
law. No one, however, should be singled out for harsher
treatment
than others convicted of similar crimes. I believe this
happened
in the case of Jonathan Pollard.
I ask that articles by Alex Rose, entitled 'A Tale of Two
Spies,' and Morton Klein, entitled 'Double-Standard Spying,' be printed
at
this point in the Record.
From November, 1992 to September 1994, Lt. Cmdr. Michael
Schwartz
delivered secret national defense information to Saudi Arabia. A
15-year Navy veteran, Schwartz was subsequently arrested and
indicted for violating both the Uniform Code of Military Justice
and various federal statutes.
The indictment stated that while he was assigned to the U.S.
Military Training Mission in Riyadh, Schwartz had willfully
compromised sensitive information 'with intent or reason to
believe
it would be used to the injury of the United States, or to the
advantage of the Kingdom of Saudi Arabia.' According to press
reports, the documents in question included classified digests,
intelligence advisories and tactical intelligence summaries.
These
documents were classified up to the secret level and specified
'no
foreign disclosure.'
Although Schwartz was scheduled to be court-martialled for his
action, he accepted a last-minute plea agreement offered by the
Navy. While such arrangements are not unusual, particularly in
espionage cases involving American allies, Schwartz' so-called
'punishment' was unprecedented: 'other-than-honorable' discharge
from the Navy. In other words, Lt. Cmdr. Michael Schwartz was
not
obliged to spend a minute in jail.
For a remarkably similar offense - giving classified
information
to an ally - Jonathan Pollard received a life sentence with a
recommendation that he never be paroled.
What are the differences between the two cases?
The obvious ones have anti-Semitic overtones: Schwartz is not
Jewish, and Pollard was spying on behalf of Israel. Not nearly
as
apparent is that the U.S. Government - which had expressed
official
outrage at Israel's 'arrogance' in the Pollard case and
proclaimed
loudly (without offering any evidence) that his espionage was
the
worst in American history - has handled the Schwartz case with
kid
gloves and virtual silence.
Even the Jewish War Veterans, whose lack of sympathy for
Pollard
is a matter of record, was nevertheless moved to revulsion by
the
Schwartz affair. The JWV said that it believes 'that when
compared
to other crimes of espionage by Navy personnel, both to enemy
and
friendly governments, the punishment is a farce. In each of the
other cases, harsh prison sentences, including life-time
sentences,
were meted out.' The Jewish veterans also questioned what
information was passed to the Saudis, and who in the Saudi royal
family knew of the Schwartz espionage.
Other questions, as well, beg answers:
Granted, the Navy's unwillingness to address any of these
issues
may be understandable; but it's also important to recognize the
fact that a mindset like theirs, which subordinates American
interests to protecting Saudi sensitivities at all costs, can
have
deadly consequences. Anyone doubting this need only recall the
bombing of our Khobar Towers facility in Dhahran two years ago.
Reacting to the inadequate security precautions that allowed
this
outrage to occur, a Washington Post editorial of July 12, 1995
observed that 'The suggestions of American reluctance to offend
the
culturally delicate Saudis by demanding more attention to the
security of Saudi Arabia's American protectors amount to an
intelligence failure of a profound sort.' No doubt this same
type
of craven fear of ruffling Saudi Arabia's feathers was the
principal reason why Schwartz did not have to stand trial nor
suffer a jail sentence, and was not referred to by the Secretary
of
Defense as a 'traitor' - something which Pollard, by the way,
was
falsely accused of being by Caspar Weinberger.
Although the Government subsequently apologized for
Weinberger's
groundless charge, this episode should remove any doubt as to
what
the Department of Defense's actual attitude towards Israel was
at
the time of Pollard's arrest. It also tends to confirm what
many
in the Jewish community have believed all along; namely that the
Pollard affair was used by certain elements within our national
security establishment as a means of tarnishing the popular
perception of Israel as both a valuable and reliable ally.
After
all, if Pollard was a 'traitor' as Weinberger had stated who,
then,
was the 'enemy'? That Schwartz was never used to smear the
country
he served, further highlights the politically-driven distinction
our government drew between these two cases of 'friendly'
espionage.
There are, of course, other aspects of the Schwartz case which
President Clinton obviously never even considered before he
turned
down Pollard's last clemency appeal. For example, the
Government's
decision not to prosecute Schwartz calls into question CIA
arguments that Pollard cannot be released because he knows too
much. This is an absurdity. Schwartz was spying until
recently,
whereas Pollard has been in prison for more than 11 years! How
is
it that Schwartz is not a threat to national security but
Pollard
is?
The President also seems to have been heavily influenced by
the
views of Joseph DiGenova, the U.S. attorney who prosecuted
Pollard.
Briefly put, DiGenova feels that individuals caught spying for
close allies like Israel should actually be punished more
harshly
than those caught spying for enemies, since there is a greater
'danger' that individuals would feel more predisposed to help
friends. If there is any merit to this logic, it has been
totallylost in the government's refusal to prosecute Schwartz
vigorously,
rather than to have set him free.
But nobody, apparently, brought this to the President's
attention.
Lastly, our government sought to justify its decision not to
prosecute Schwartz by claiming that the information he provided
Saudi Arabia was 'less sensitive' than what Pollard gave to
Israel.
One needs to recall, though, that Schwartz was indicted and
confessed to a serious crime. Clearly, some punishment was
therefore warranted beyond his mere 'less-than-honorable'
discharge
from the Navy. The fact that this did not occur demonstrates
that
extra-legal considerations came into play in the disparate
treatment. In other words, politics was allowed to corrupt the
U.S. judicial system. Anything, then, the national security
establishment might have to say about the relative sensitivity
of
Schwartz' information is simply too tainted to be believed.
Yet,
the same intelligence and defense agencies who rescued Schwartz
from prosecution are the very ones who have counselled President
Clinton to adhere to a policy of 'selective prosecution' towards
Pollard. So how objective could their advice have been?
It seems, though, that nobody has seen fit to point this out
to
the President; and unless somebody does, Clinton will never know
why his refusal to commute Pollard's sentence threatens to
undermine one of our most important legal traditions: namely,
the
assurance that when a person is convicted of breaking the law,
he
or she will receive approximately the same punishment that any
other person would receive for a similar violation that was
committed under comparable circumstances. However, given the
way
Schwartz was preferentially handled, this principle of equal
justice has been grossly violated in the case of Jonathan
Pollard.
But Clinton not only declined to correct this situation by
granting
Pollard clemency, he did so in a way that placed his own
imprimatur
on Pollard's clearly-aberrant life sentence.
What a growing number of people are slowly recognizing,
though,
is that if our legal system does not work for Pollard because of
who and what he is, it could fail each and every one of us, as
well, both as Jews and as Americans.
In our society, justice cannot simply be a theoretical concept
- it must be seen to be done. Only in this way will our
much-touted
system of checks and balances have meaning. It is critical,
therefore, that Congress investigate how a Saudi spy (Schwartz)
was
permitted to act with impunity while an Israeli spy (Pollard)
was
treated as an enemy agent. Two spies, two countries and two
vastly
different punishments cannot help but leave one with the
distinct
feeling that there is a double standard in need of challenging.
We all know what happens to an American who illegally passes classified U.S. intelligence data to Israel:
In the case of Pollard, he helped a country that is
What happens, on the other hand, when an American illegally passes classified U.S. intelligence data to an Arab dictatorship that can hardly be described as a
Not a day in jail. Not a penny in fines. And not a word of concern from any Clinton Administration official about the fact that Saudi Arabia, which is supposed to be an ally of the United States, was using a spy to steal American intelligence secrets, just months after American soldiers were dying in defense of Saudi Arabia during the Gulf War.
U.S. officials would not even admit that the Saudis had recruited Schwartz; they told The Washington Post that Schwartz had not been hired by Saudi Arabia, but rather "was only trying to be friendly and cooperative to a U.S. ally."
The government's handling of the Schwartz case is particularly troubling in view of the many recent Saudi actions that fell far short of what one would expect from an ally:
Mughniyah was on an airplane that was scheduled to land in Saudi Arabia, and the U.S. informed the Saudis that they intended to arrest him during the stopover. The Saudis responded by preventing the plane from landing, so that Mughniyah could escape.
Jonathan asked: "Why am I still in jail, while Michael Schwartz is walking free?"
Morton Klein
A Tale of Two Spies
Alex Rose
Have the Saudis been asked for a formal apology? Have they promised not to recruit any more American intelligence officers or to
close the intelligence unit responsible for the affair? Have the
Saudis agreed to allow participants in the operation to be
questioned by American counter-espionage authorities? Have they
returned all the stolen documents? What other countries may have
seen the information Schwartz gave to the Saudis? (This item
loomed
large in the Government's assessment of Pollard. Why did it lose
its relevance for Schwartz?)
Double-Standard Spying
April 11, 1994 - The Jewish Press - Morton Klein
life imprisonment
, repeated refusals by the President to grant clemency, leaks to the media of false allegations against the defendant and against Israel. That's what happened in the Jonathan Pollard case. He broke the law and he was, understandably, punished for doing so.
America's closest ally
in the Mideast. The information Pollard illegally gave Israel helped protect it from Arab aggression.
reliable ally
of the United States? Lieutenant-Commander Michael Schwartz was last year arrested for providing such data to Saudi Arabia. A U.S. Navy grand jury indicted him on the charge of espionage, which carries a sentence of life imprisonment
. His punishment? An "other than honorable discharge."
I recently had the opportunity to speak with Jonathan Pollard by telephone, from his prison cell in Butner, North Carolina. He is now in his 12th year of incarceration, although no other individual convicted of a similar type of spying for an ally of the U.S. has ever served more than five years in prison.
Good question - one that Jewish leaders should be asking the Clinton Administration at every opportunity.
President, Zionist Organization of America