Pollard Is Victim Of Discrimination

David Kirshenbaum - Special to The Jewish Week, NY - July 12, 2002

A common thread in the major reports on the Jonathan Pollard case by Edwin Black and James Besser (June 21 and 28) is that Pollard remains in prison, in large measure, because of his personality and the public campaign he waged to try to explain the background to his actions. Their analyses are naive and misleading.

It should be recognized that spies as a class do not have the type of personalities and character that endear them to prosecutors or judges. Indeed, when you throw in the element of espionage for an enemy, one could readily understand the enormous gut disdain that a prosecutor or judge might have for someone who spied against his country.

And yet, contrary to Black's contention that spying for enemies "generally fetches a life sentence," of the approximately 50 spies for U.S. adversaries (mostly the Soviet Union and other Warsaw Pact countries), less than a handful received life terms. Thus, in more than 90 percent of these cases, whatever negative personal feelings prosecutors and judges must have had for spies for an enemy country did not impel them to seek or impose a life term. With the exception of Pollard, the percentage of life terms for spies for allied and neutral countries is zero.

Apparently, however, a Jew who spies not for an enemy but for Israel, one of the closest allies of the United States, is an infinitely more serious matter. For argument's sake, let's say Pollard is abrasive, cocky and self-righteous. Why should that have made him the object of more contempt than someone like CIA agent David Barnett, who sold the Soviets the names of 30 American agents? Barnett was given an 18-year sentence and paroled after serving only 10 years.

Similarly, highlighting the malpractice of Pollard's counsel misdirects the focus from what is so terribly egregious about the Pollard case. The significance of Richard Hibey's professional errors, as inexcusable as they were, pales in comparison to the deplorable and vicious governmental abuse and institutional misconduct in the case. As the Rev. Benjamin Hooks wrote about the Pollard affair in a 1993 letter to President Clinton, "As a lawyer and a minister, as well as a former judge and head of the NAACP, I have rarely encountered a case in which government arbitrariness was so clear cut and inexcusable." Is Rev. Hooks just another member of the "cult" of Pollard activists, so named by David Luchins?

In calling long ago for the commutation to time served of Pollard's life term, Rev. Hooks joined other Pollard "cult" members like Elie Wiesel, Pat Robertson, more than a thousand rabbis representing the spectrum of Judaism who signed full-page ads on Pollard's behalf, and the overwhelming majority of Jewish federations across the United States.

Edwin Black might have asked the intelligence officials with whom he spoke whether they actually had any evidence that any of the information Pollard gave to Israel ever got into Soviet hands or was, in fact, ever compromised to the detriment of the United States. Sixteen years after Pollard's arrest, no evidence has ever surfaced that could begin to justify Pollard's life sentence or anything close to it.

Given the nature of the charge against Pollard and the blatant and reprehensible way in which the prosecutors and intelligence community conspired to violate the government's three written promises to Pollard, their continued recourse to secret testimony 16 years after the fact and their shameless expectation that we blindly trust them is mind-boggling. Moreover, whatever Pollard did, including all the wild speculation of potential damage that over the years proved unfounded, was known and considered by the government when it signed a written agreement with Pollard.

By what standard of justice or decency does the government continue to shamelessly champion the continuation of the very life sentence it promised in writing not to even seek?

Jewish leaders who are unmoved by the context to Pollard's actions helping Israel when he felt they were not receiving vital U.S. information should do some honest introspection as to what really motivates their hard-heartedness.

The ambivalence, anger and resentment that some of these leaders exhibited toward Pollard and their often pejorative tone when relating to those who, at various stages, were confounded by the severity of Pollard's life term, had far more to do with fears and concerns as to how the Pollard affair would affect their personal positions than it did with the merits of the case.

Of course, Pollard doesn't "deserve what he got" because of the embarrassment and discomfiture the case caused American Jewry or its leadership. By the same token, the notion that an example had to be made of Pollard because of the prominent role of American Jews in government should be unacceptable to all Americans. And yet, it is frighteningly apparent that U.S. intelligence and government officials still opposed to Pollard's release are not only hell-bent on exacting a pound of flesh from Pollard and the Israelis but on sending an unmistakable warning to the American Jewish community in general, and to Jews who work in government, in particular.

The dual standard of justice that singles out Pollard for punishment infinitely more harsh than that imposed in every other case of espionage on behalf of a U.S. ally or even a neutral country raises profoundly troubling and disturbing questions. It is a fundamental principle of the American judicial system that people who commit similar crimes ought to receive reasonably similar punishments.

A just society that wants to deter certain behavior dare not seek to achieve such deterrence by singling out one individual or group for particularly harsh punishment. That is what we call discrimination. And that is the shameful and inexcusable reason why Pollard is still in prison.

David Kirshenbaum is an American-born attorney who made Aliyah and now practises law in Jerusalem.