Pollard & Haddam: Prisoners of Secret Evidence

Milton Viorst - The Nation - February 28, 2000

Washington is obsessed with terrorism and national security. One result is the increased use of secret evidence in violation of U.S. legal protections.

Journalists who cover the Middle East - as I have for three decades - inevitably run into many victims, Jews and Arabs. Most are the victims of each other, though occasionally Jews are the victims of other Jews, as are Arabs of other Arabs. Jonathan Pollard, a Jew, and Anwar Haddam, an Arab, both of whom I have come to know in the course of my work, have been deeply embroiled in the Middle East wars. But, in prison today, they are victims of serious failings in the American system of justice.

Pollard, as most people know, is an American Jew with right-wing Zionist convictions who was sentenced to life in prison for spying for Israel. Haddam, whom few know, is an Algerian identified with Islamic fundamentalism who, having entered the United States legally, was locked up as his residency status expired. Though their cases are quite different - one espionage, the other immigration - both men are condemned to prison on the basis of information not available to them, to their lawyers or to the public.

A reader need not share the politics of Pollard or Haddam, much less endorse the course either has taken, to be troubled by these cases. I have no sympathy for either's ideology; neither of them, in fact, has much sympathy for the other's. Yet they are linked in their imprisonment by the government's vague invocation of national security. Both men are victims of proceedings deeply at odds with American legal protections.

Pollard is currently in the fifteenth year of a life sentence imposed for the damage he is alleged to have done to the United States; the damage has never been publicly specified. Haddam is serving his fourth year in a Virginia jail without ever having been sentenced for anything. He has not been investigated for, much less convicted of, a crime. The Immigration and Naturalization Service (INS) says only that to release him would be dangerous to the nation's security interests.

Pollard's case is kept alive by Israeli and American supporters, most - though by no means all - from the right wing of the Zionist community. None deny that he was a spy: in 1986 he pleaded guilty to one count of espionage while working for the Office of Naval Intelligence. What the government has declined to reveal are the facts behind the spying, specifically its allegations of the harm Pollard did to the United States, allegations on which the judge based his life sentence.

Haddam has no support system to keep his case in the public eye. Elected to Algeria's Parliament in 1991 on the ticket of the victorious Islamist party (FIS), he fled to France, then to America, after the Algerian Army overturned the election in a coup d'etat, igniting a civil war. Once a student here, he settled down with his wife and children and requested political asylum. While awaiting approval, he worked without U.S. objection as a spokesman against the Algerian regime. On several occasions he even traveled abroad with official approval, on political missions. Not only is Haddam unaffiliated with the terrorist groups associated with Algeria's Islamist opposition, one of them, the GIA, even placed him on its hit list. Nonetheless, in 1996 the INS arrested Haddam and instituted proceedings to deport him. It never told him why. It failed only because, under law, an alien cannot be repatriated to face execution or torture. What the INS did instead was put him in jail, and it has kept him there ever since.

Haddam's case bespeaks a wider problem than Pollard's. He is one of two dozen Arabs and/or Muslims jailed by the INS on allegations of support of, though not necessarily involvement in, terrorism. I write of Haddam because I know him, though any of the two dozen might be my subject. The INS's authority to jail them is long-standing, but it was rarely invoked before the passage, in the wake of the murderous bombing (by an Anglo-Saxon) in Oklahoma City, of the Anti-Terrorism and Effective Death Penalty Act of 1996.

The INS faces no requirement either to bring criminal charges or to produce evidence. In Haddam's case it has acknowledged in writing that it has "no information that [he] has committed any criminal acts.... Additionally, there is no criminal investigation pending against him."

Pollard's legal problem began when federal prosecutors, after his capture, persuaded him to waive trial and plead guilty. His acceptance of their offer was clearly "wired" - to use lawyers' jargon - to the treatment promised to his [former] wife, who was charged as an accessory. At the time, Anne Pollard was very ill. The prosecutors, having been relieved of the burden of submitting classified evidence at trial, agreed in return not to recommend a life sentence. They also pledged to request only a modest penalty - understood to mean no jail time - for Pollard's [former] wife.

But District Court Judge Aubrey Robinson disregarded the deal, sentencing Anne Pollard to five years and Jonathan to life, the maximum allowable terms. Under U.S. law, judges are free to disavow plea bargains, but prosecutors must nonetheless keep the agreement's terms. In Pollard's case, the prosecution went beyond the agreement to give the judge an unusual sentencing memo, which swayed his decision. Ironically, Judge Robinson, in imposing life, probably exceeded the federal guidelines that went into effect seven months later, narrowing judicial options as a means of toughening sentencing procedures.

The prosecution's forty-six-page sentencing memorandum, signed by then-Defense Secretary Caspar Weinberger, was classified secret. In a separate inflammatory letter delivered to the judge the day before sentencing, Weinberger demanded a penalty commensurate with Pollard's "treason" - though Pollard had never been accused of treason, a capital crime defined by the Constitution as aiding an enemy or making war on the United States. The Weinberger memo proved crucial. In submitting it the prosecutors, if they did not violate the plea-bargain deal, surely strained it beyond recognition. Weinberger himself, it should be noted, was later indicted for deceiving Congress in testimony on the Iran-Contra episode; he avoided trial through a pardon by President Bush.

In Pollard's post conviction proceedings, his lawyers conceded his guilt. Their target was his sentence, but they could challenge it only by demonstrating that the damage their client had done to the United States was less than the government claimed. Despite their having obtained top-secret clearances, however, the government denied Pollard's lawyers access to the Weinberger memo, ruling that they had no need to know. Without the memo, they were limited in making their case to contending that the government had tricked Pollard into surrendering his right to trial by offering promises it never intended to keep.

One of the three judges on the appeals panel agreed with the lawyers. Judge Stephen Williams wrote that the prosecution, while free to describe the crime for purposes of sentencing, could not "wrap the raw facts in inflammatory rhetoric ... naming him a traitor." The Weinberger memo, he wrote, called "for a life sentence in all but name." Describing the prosecutors' conduct as a "fundamental miscarriage of justice", Williams voted for reconsideration of Pollard's life term but was outnumbered. For whatever its psychological interest, I will point out that the judges who voted against Pollard - Laurence Silberman and Ruth Bader Ginsburg, now on the Supreme Court - are both Jews. Williams is not.

Pollard's case was unusual for another reason: He spied for a friendly state, a distinction the judicial system has traditionally recognized in sentencing. During the cold war nine Americans - including Aldrich Ames, the infamous CIA mole - were given life terms for spying for the Soviet Union; another dozen or so received sentences of up to thirty years, depending on the severity of damage to the country. Meanwhile, spies for friendly states (South Africa, the Philippines, Egypt, Ghana) received terms from two to eight years. In 1996 the government declined to prosecute at all a U.S. naval officer [Michael Schwartz, a non-Jew] who confessed to spying for Saudi Arabia Pollard is the only American ever sentenced to life for spying for a friendly government.

Since the trial, the Government has routinely leaked [unsubstantiated, unchallenged] information to the press to justify the sentence. The New York Times has written that "the information [Pollard] turned over included satellite photos of Iraqi chemical weapons plants, code-making formulas, raw intelligence revealing the location of American ships and classified data on U.S. training exercises." Other media, at various times, have reported that Pollard provided the data that Israel used in its bombing of the PLO headquarters in Tunis in 1985 and suggested that his revelations were "traded" by Israel to the KGB in return for exit visas for Soviet Jews.

In January 1999, during the heat of a campaign for presidential clemency by Pollard's supporters, Seymour Hersh published a wide-ranging attack in The New Yorker titled "The Traitor," purporting to be the last word on Pollard's misdeeds. Hersh found his crimes so outrageous that he chastised Jewish organizations for giving him their sympathy. Sources from within the intelligence community, he wrote, had imparted the secrets of the case to him "because they no longer had confidence that President Clinton would do what they believed was the right thing - keep Pollard locked up." Whatever the intelligence community's motives, the information Hersh published had never been presented in an official forum or offered to Pollard's lawyers. If Hersh's sources were truthful, they were themselves violating the espionage laws; if they were not they were perpetrating a hoax.

"The intelligence community - the FBI, the CIA, the Pentagon agencies - lives by leaks," a Washington lawyer who specializes in security cases told me. "What the FBI and the CIA say to the press is incredible, and in publishing it, the press is willing to be used. An assistant of Weinberger who helped draw up the memo told me it was shocking what his boss would say. He said the memo, pure speculation at best, would never pass a polygraph test. The agencies still have their thermostats on high over Pollard. "Most people in my business think they want to scare any sympathizers that Israel may still have in the agencies." (The CIA, in fact is currently embroiled in a controversy with a Jewish employee whom it fired after he failed polygraph tests relating to his ties with Israel. The agency acknowledges, and has apologized for, anti-Semitic remarks placed in a file by agents investigating the episode. The ex-employee, Adam Ciralsky, has cited CIA allegations of dual loyalty as grounds for a suit against the agency for damages.)

The intelligence community shows a similar fascination with Haddam. Interestingly, the State Department, holding that the United States has no quarrel with Haddam, stands firmly against them. State says that after his arrival here Haddam provided useful data on Algeria, and his efforts in behalf of a negotiated settlement of the bloody civil war there served U.S. policy. In 1995 France and Algeria lodged protests claiming that in Haddam the United States was harboring a terrorist. But since neither provided stronger evidence than political statements he had made to the European press, State rejected the protests.

Some State officials believe Haddam is caught in a deal between the FBI, which serves as the INS's chief investigatory arm, and French intelligence, which maintains close ties to the Algerian regime. Intelligence agencies often work together, they say, and it is no secret that France and the junta have long shared a hostility to Haddam's Islamist party. But despite its efforts, State could not keep Haddam out of jail. Department officials lament that when they differ with the FBI or with the other intelligence agencies, the courts -especially the special courts that have jurisdiction in immigration cases routinely cite security considerations and rule against them.

Since Haddam's jailing, his case has bounced around the immigration courts, producing diverse findings on his right to asylum and on the allegations that he is a danger to national security. With his family living in a Washington suburb, Haddam does not seem to be a candidate for flight. Yet the immigration courts have consistently rejected his release on bond, and the federal courts have refused to grant habeas corpus.

In 1997 an INS district director objected to Haddam's release, contending that he presented a risk of absconding. The INS also argued that no evidence had been presented demonstrating that it was "in the public interest to release him," a concept that turns the presumption of innocence on its head. Soon afterward, the INS told the court that it had learned of three international warrants against Haddam for violent activities related to terrorism; the State Department replied that the warrants, initiated by Algeria's military regime, contained not a hint of proof. Another letter from the INS cited as evidence of Haddam's riskiness a death sentence pronounced on him in Algeria in absentia. The federal judge hearing the case commented sardonically that with its successive submissions, the INS had at least shown a "slight evolution" in its reasons for keeping Haddam in jail.

In reviewing Haddam's habeas corpus plea, the Virginia judge, T.S. Ellis II, found much to criticize. He noted that the INS, in categorizing Haddam as a security risk, offered facts that "are not undisputed '" In a footnote he added that whatever his judgment, it "does not of course, represent any judicial finding that Haddam is engaged in or associated with terrorism ...... Still, he found that, under accepted constitutional doctrine, he was legally bound to defer to the INS. "The deferential standard," he wrote, "requires only that the district director ... identify the factual basis for his action ... even if the district court, on the information before it, would reach a different conclusion."

In a similar case in New Jersey a few months later, Judge William Walls reached the opposite conclusion, granting habeas corpus to Hany Kiareldeen, a Palestinian. Walls wrote that the government's unwillingness to prosecute shows that it doesn't find its own allegations credible. More important he said, "the INS' reliance on secret evidence raises serious issues about the integrity of the adversarial process, the impossibility of self-defense against undisclosed charges, and the reliability of government processes initiated and prosecuted in darkness.... The INS procedures patently failed the ... test of constitutional sufficiency." In ordering the INS to grant Kiareldeen his freedom Walls won applause from the New York Times, the Washington Post and other editorial pages.

In the last session of Congress, Democratic whip David Bonior and moderate California Republican Tom Campbell filed a bill consistent with Walls' reasoning. "Since 1996" said the cover letter to the bill, "the INS has increased its detention and deportation of non-citizens based on evidence kept secret from the detainees and their attorneys. The use of secret evidence has resulted in the detention of non-citizens based on unreliable allegations or erroneous information." The bill aims to prohibit the INS from using secret evidence, which its sponsors call an abuse of government.

But the Bonior-Campbell bill, in covering only aliens, would not help Pollard. "I guess we didn't think of that," said an aide to Campbell when I phoned. "It didn't occur to us that Americans might also be caught in the trap. We might have to do something about that '" Official Washington, however, is currently obsessed with terrorism, and the bill is not considered likely to pass. Meanwhile, Pollard and Haddam appear to have little prospect of getting their freedom anytime soon.

Milton Viorst is a Washington, DC, writer who specializes in the Middle East His most recent book is "In the Shadow of the Prophet: The Struggle for the Soul of Islam" (Anchor).