Pollard Applied for—and Was Denied—Parole; Now Even Those Initially Not Supportive Demand a Pardon

May 29, 2015 by Susan Rosenbluth

The American-Jewish community has long been divided on the issue of Jonathan Pollard’s incarceration, now in its 30^th year. The community has also been divided on how to help him win his freedom. Some have sided with Mr. Pollard, now 60, in insisting that he be granted Presidential clemency or a pardon. Others have advised him to ask for parole, especially when he became eligible for a hearing after serving ten years in prison.

Now, because there is doubt that Mr. Pollard can ever win parole, some strong voices are issuing harsh words for the Jewish community, insisting that, at every meeting with officials in the Obama administration, leaders of Jewish organizations, and especially financial political contributors, raise the issue of Mr. Pollard’s release.

Last month, for example, when President Barack Obama tried some damage-control with leaders of major Jewish groups, hoping to paper over harsh public remarks made by the White House regarding Israel and Prime Minister Benjamin Netanyahu as well as the sense that the administration, giddy with prospects of a deal with Iran, no longer values the relationship with American Jewry, an editorial in Hamodia held the community accountable for not seizing the moment.

“It would have been the perfect opportunity for them to plead with the President about something that ought to have been at the very top of the list of priorities, and, tragically, wasn’t,” said the editorial.

The paper suggested “the enormous unity that would have occurred” if the 30 Jews at the meeting had said: “Mr. President, the best assurance that Israel and the American-Jewish community are indeed protected and favorably considered by your administration is the dispensation of equal justice. Don’t just tell us you care. Please, show us. End the travesty of justice perpetrated on an Israeli agent who has been sitting in an American prison for a grossly disproportionate 30 years, with no respite. Release Jonathan Pollard and send him home to Israel. That will reassure us more than all the fine words and expressions of solidarity that we are hearing now. Thank you, Mr. President.”

Supporters

After being arrested in 1985, the former civilian naval-intelligence analyst pled guilty in 1987 to selling classified information to a US ally, Israel, and was sentenced to life in prison.

Almost from the beginning, there has been a strong cadre of Pollard supporters who insist he was wrongly imprisoned in the first place. These supporters argue that Israel was entitled to the information he passed onto Jerusalem. Further, they add, the US government reneged on its own plea bargain with Mr. Pollard not to seek a life sentence in exchange for his guilty plea. He pled guilty, and, thus, averted an embarrassing trial for the US, but he was sentenced to life anyway. His supporters maintain that this in itself is evidence that the government lied: Who would plead guilty only to receive the maximum punishment. He might have fared better if he had insisted on a trial.

Other supporters recognize that Mr. Pollard transgressed the law, but, they say, his punishment was disproportionate not only to his own crime, but also when compared to the offenses of others charged with much more serious incidents of spying.

Opponents

For many years, Mr. Pollard’s detractors, some of them in the Jewish community, said that he was not only guilty as charged, but deserving of the punishment. Writing in the Washington Post in 2012, four former directors of US Naval Intelligence, William Studeman, Sumner Shapiro, John L. Butts, and Thomas Brooks, decried “the myths that have arisen from this clever public relations campaign…aimed at transforming Pollard from greedy, arrogant betrayer of the American national trust into Pollard, committed Israeli patriot.”

But even these Pollard opponents argued that, if, as Mr. Pollard and his supporters claim, he has “suffered enough” for his crime, “he is free to apply for parole as the American judicial system provides.”

For years, Mr. Pollard refused to do that. Esther Pollard, who is recognized as Mr. Pollard’s wife despite some reports that they were never married, insisted that they had been advised not to seek parole because, she said, after being denied, he would be given something she called “a 25-year set-a-side,” which, she said, meant he would not be able to ask for parole for another 25 years. Despite her claim, the “set-a-side” is not a paradigm recognized by the legal community.

A Dangled Prize

To the frustration of many in the Jewish community, Mr. Pollard insisted on being granted Presidential clemency or an outright pardon.

Over the years, he has sometimes come close to winning that prize, but, always, in the end, it was denied. In September 2011, Vice-President Joseph Biden reportedly told a group of rabbis that Mr. Obama was considering clemency until Mr. Biden himself forbade it.

On that occasion, as on previous ones, a pardon for Mr. Pollard was considered a prize to dangle in front of Israeli leaders as an incentive to acquiesce to Arab demands.

Wye River Accords

In 1998, then US-President Bill Clinton was reportedly so close to freeing Mr. Pollard as part of the Wye River Accords, in which Israel agreed to withdraw from 13 percent of Judea and Samaria’s Area C, that Mr. Pollard’s parents were advised to prepare for his release. During those negotiations, Prime Minister Benjamin Netanyahu had made it clear to the Americans that he wanted Mr. Pollard released. The deal to free him was reportedly scuttled when then-CIA director George Tenet threatened to resign if Mr. Pollard was released, a report that Mr. Tenet later denied.

The real reason there was no Clinton pardon may have been revealed by then-US negotiator Dennis Ross in his 2005 book, The Missing Peace. Mr. Ross said he advised Mr. Clinton to keep Mr. Pollard in prison so that the spy could be used as a bargaining chip for final-status peace talks between the Arabs and Israel.

According to Mr. Ross, when Mr. Clinton asked if Mr. Pollard was “a big political issue in Israel,” Mr. Ross said yes, “because he is considered a soldier for Israel and there is an ethos in Israel that you never leave a soldier behind in the field. But if you want my advice, I would not release him now. It would be a huge payoff for Bibi; you don’t have many like this in your pocket. I would save it for permanent status. You will need it later. Don’t use it now.”

“Persian Carpet”

According to reports, when Mr. Obama considered releasing Mr. Pollard in 2011, it was to pressure Israel into reinstating an expired freeze on Jewish building in Judea and Samaria.

Critics say that Presidents Clinton and Obama were convinced that by holding Mr. Pollard in prison, the Arabs could receive more important concessions from Israel.

“Over the years, Washington has routinely sold the same Persian carpet-Pollard over and over again to Jerusalem for increasingly higher prices, but never delivers,” Mrs. Pollard once said.

Obama Hint

On a visit to Israel in March of 2013, Mr. Obama himself as much as told Mr. Pollard and his supporters that his only path to freedom lay in asking for parole. In an interview with Israeli television, the President made clear that he had no intention of granting Mr. Pollard clemency, but, he said, “what I am going to be doing is make sure that he—like every other American who has been sentenced—is accorded the same kinds of review and same examination of the equities that any other individual would be provided.”

Mr. Obama said his obligation as President was to uphold American laws and ensure that they were applied consistently, “to make sure that every individual is treated fairly and equally.”

Thus encouraged by the President, Mr. Pollard applied for parole in December 2013 and his initial parole hearing was scheduled for April 1, 2014. Just before the date, however, there were reports that Mr. Obama, despite his announcement in Israel, was prepared to free Mr. Pollard if Mr. Netanyahu’s government agreed to release another batch of Palestinian-terrorist prisoners, many of them serving life sentences for having murdered Jews.

According to Mr. Pollard’s supporters, he promptly withdrew his parole application so that it could not be connected to a trade for terrorists, which he and his supporters found abhorrent.

Pollard for Terrorists

In an extensive article published in The New Republic, it was reported that, this time, using Mr. Pollard as a bargaining chip was suggested by US Secretary of State John Kerry. According to the piece, written by Ben Birnbaum and Amir Tibon, Mr. Obama “wasn’t going to touch the option, unless it facilitated a true breakthrough.”

According to the article, after a great deal of persuasion from Mr. Kerry, Mr. Obama told his Secretary of State, “I’m not doing this because I want to, John. I’m doing this for you.”

According to the article, Mr. Netanyahu was prepared to release the terrorists in exchange for Mr. Pollard, but others in his coalition, especially Jewish Home chairman Naftali Bennett threatened to quit the government if the terrorists were freed.

In an interview with Yediot Achronot, former Israeli Justice Minister Tzipi Livni blamed Mr. Bennett and his colleagues for Mr. Pollard’s continued incarceration.

Neglecting to mention that Mr. Pollard objected to being freed in exchange for the terrorists, Ms. Livni told reporters, “We reached the point with the US that they were ready to free him. Those who want him free should ask themselves why he wasn’t freed. The settler leaders who call on every stage for releasing Pollard immediately must ask themselves what their contribution was to him remaining in prison.”

Peres for Pollard

Before any deal was made, actions by the Palestinian Authority, including unilateral appeals to the UN for recognition as a state without negotiations with Israel, convinced Jerusalem not to release the terrorist prisoners. Mr. Pollard then reapplied for a parole hearing, which was scheduled for July 1, 2014. Among those supporting him was then-President Shimon Peres.

According to Israeli reporter Gil Hoffman, who wrote extensively in The Jerusalem Post about Mr. Pollard’s quest for parole, Mr. Peres’s role was “more than symbolic.” The Prime Minister at the time of Mr. Pollard’s arrest, Mr. Peres did not alert the embassy staff to ensure Mr. Pollard would be let in, and he gave the US documents that incriminated him.

“Many Israelis see Pollard’s continued incarceration as a lingering stain on Peres’s decades of public service,” said Mr. Hoffman.

According to Mr. Hoffman, Mr. Peres had a message for Mr. Obama: “You don’t have to grant clemency. In fact, you can distance yourself from the matter completely. Just privately, let the US Justice Department know that you don’t oppose paroling Pollard and letting him leave for Israel.”

“Obama would not need to get his hands dirty, just keep the commitment he had made to Israelis 15 months earlier to treat Pollard fairly, like any other prisoner, and let his parole be assessed naturally on the merits of his case,” said Mr. Hoffman.

Strong Effort

But the appeal for parole didn’t work, despite the fact that attorneys Eliot Lauer and Jacques Semmelman, who have represented Mr. Pollard pro-bono for 15 years, filed a supplemental submission to the US Parole Commission, stressing that Mr. Pollard had been a model prisoner with a top “salient factor score.” This is an actuarial device used by the parole commission as an aid in assessing a federal prisoner’s likelihood of recidivism after release, which is the main factor when considering parole.

According to Mr. Hoffman, the attorneys’ document showed that an apartment had been rented for Mr. Pollard in the New York area and employment had been secured for him as an analyst in an investment firm.

“Further incarceration would serve no purpose, as he has been severely punished,” the attorneys wrote. “The commission should set an effective date of parole so that Mr. Pollard can be released as promptly as possible.”

“A Lynching”

According to Mr. Hoffman, as soon as the commission convened, “all hopes that the hearing would be fair were dashed.”

“The government’s representatives spoke menacingly, treated Pollard with contempt, prevented Lauer from making his case, and made it clear that [Pollard] would not see the Jewish state any time soon, if ever. Those present described the hearing as a ‘kangaroo court’ and even ‘a lynching,’” he said.

In August, Mr. Pollard received his rejection letter, informing him that the commission had relied on information, much of which, his supporters insist, has long been refuted. For example, the commission said, “The breadth and scope of the classified information that you sold to the Israelis was the greatest compromise of US security to that date.”

False Information

This was based on a 1987 classified memorandum, written by then US-Defense Secretary Caspar Weinberger. “It was false at the time and has proven grossly inaccurate in hindsight,” said Mr. Hoffman, noting that Mr. Pollard was never indicted for harming the US or for compromising codes, agents, or war plans. He was never charged with treason. In 2002, Mr. Weinberger himself discounted the memorandum as politically motivated.

“Over the years, Pollard was falsely accused of compromising American agents in Eastern Europe, when it was actually the head of the CIA’s Soviet/Eastern Europe Division, Aldrich Ames, who had committed the crime and then blamed Pollard,” said Mr. Hoffman.

The commission maintained that Mr. Pollard had “passed thousands of top secret documents to Israeli agents, threatening US relations in the Middle East among the Arab countries,” and further complained that if Pollard had not given Israel this information, the US could have received intelligence from Jerusalem in exchange for the material he had provided gratis.

“Given all this information, paroling you at this time would depreciate the seriousness of the offense and promote disrespect for the law,” the letter concluded.

Unclear Future

It is unclear what Mr. Pollard can expect next. Although he is entitled to another review of his case in July of this year, no one is optimistic. According to Mr. Hoffman, when asked whether the government will again oppose Mr. Pollard’s parole, a commission official replied, “Absolutely, vigorously.” Mr. Hoffman said this indicates the result will be no different.

According to some legal opinions, based on a separate federal law, he could be paroled in November 2015, which would mark the end of 30 years in prison. According to that law, parole must be granted unless the parole commission determines that the prisoner has seriously violated prison rules or concludes that there is a “reasonable probability” he will commit a crime upon his release. There is documentary evidence in his file to negate either of these issues.

But the letter from the parole board mentions nothing about this possibility. It indicates that, if parole is denied this year, Mr. Pollard will have to continue serving his life sentence, meaning another 15 years. Given his health issues, which have required several hospitalizations, his supporters say his chances of surviving to 2030 are slim.

“Tradable Item”

Mr. Pollard’s attorneys are convinced that he remains in prison solely because the US government still wants him as a chip in a future Israeli-Palestinian peace process.

“Pollard is still in prison because he was transformed from an American who committed a crime and was sentenced unjustly, into a tradable item,” said Mr. Lauer. “Pollard became objectified because he served a purpose in the Arab-Israeli peace process. He’s an asset to be used and not given away.”

Now that the parole gambit has been tried unsuccessfully, Mr. Pollard and his supporters are on firmer ground when they revert to asking the community to exert pressure for Presidential clemency as the only option left.

Gaining Supporters

Even those who have never been particularly supportive of Mr. Pollard now agree. Jonathan Tobin, the editor of Commentary magazine, has never viewed Mr. Pollard as a hero or a martyr, but, he said, after the parole board’s letter, “There is simply no rationale for keeping him in prison any longer.”

Mr. Tobin maintained that Mr. Pollard “did great damage to the US” when he spied for Israel from 1984 to 1985 and he harmed the alliance between the two countries. Mr. Tobin also blamed him for “lending credence to those antisemites and foes of Israel who have tried to cast a shadow on the service of the many loyal American Jews who work in the defense establishment.”

But, Mr. Tobin does not accept the parole board’s view that Mr. Pollard was “somehow responsible for the penetration of US intelligence by the Soviet Union,” especially in light of revelations that naval officer John Walker, national security analyst Ronald Pelton, and, especially, Aldrich Ames were actually working for the Russians.

“Those facts now make the over-the-top claims by then-Defense Secretary Weinberger that Pollard’s espionage was the worst in American history look more like hyperbole than analysis,” said Mr. Tobin.

Mr. Tobin pointed out that when considering that other spies for friendly foreign powers “have been routinely deported, exchanged, or given far less harsh sentences, the treatment meted out to Pollard is disproportionate and, therefore, unjust.”

He dismissed the possibility that Mr. Pollard might still harbor military secrets. “There is literally nothing secret that he might still remember from his days at the Navy Department that is of the least utility to anyone 30 years later,” he said, adding that it is not necessary to “think well” of Mr. Pollard “to understand that there is something egregious about the desire of some in the government to see him die in prison after so much time served.”

Letter to the President

The roster of American leaders who support this position is growing. Shortly after Mr. Pollard’s application for parole was denied, eight senior US officials with first-hand knowledge of the case, including a classified file the use of which has been denied to Mr. Pollard and his attorneys, wrote to Mr. Obama, strongly protesting the injustice of the commission’s action and charging that a false accusation had been used against Mr. Pollard to deny him parole. The letter urges Mr. Obama “to act expeditiously to commute Mr. Pollard’s life sentence to the 29 years which he has already served.”

The letter, signed by Amb. James Woolsey, former director of the CIA; Sen Dennis DeConcini (D-AZ), former chair of the Senate Intelligence Committee; Robert MacFarlane, former US National Security Advisor; Lawrence Korb, former Assistant US Secretary of Defense; Bernard Nussbaum, former White House Counsel under Mr. Clinton; Rep Lee Hamilton (D-IN), former chair of the Select Committee on Intelligence and Homeland Security Advisor to Mr. Obama; and Prof Angelo Codevilla, former Senate Intelligence Committee staff, argues that the claim that Mr. Pollard’s espionage put the US at risk “is false and is not supported by any evidence in the public record or the classified file.” The signatories take exception to the fact that “this fiction” was the reason given by the Parole Commission for denying parole.

They also point out that the commission ignored the wealth of documentary evidence which mitigated in favor of Mr. Pollard, especially all the recommendations from top-level officials with first-hand knowledge of the case who called for his unconditional release.

For a Case Such as This

They do not argue that he committed a serious offense and received a “justifiably severe sentence,” but, they say, efforts to secure commutation of his life sentence began in earnest “only after Mr. Pollard had served 20 years as a model prisoner and adequately expressed remorse.”

“We are deeply troubled that his grossly disproportionate sentence is now continuing into a 30^th year of incarceration with no end in sight. Denying a man his freedom based on a claim of damage that is patently false while ignoring exculpatory documentary evidence and hiding behind a veil of secret evidence is neither fair nor just nor is it the American way,” says the letter, which points out that it is “precisely for cases like this, which clearly deviate from the standard of American justice—and compassion—that our nation prides itself on, that the Constitution grants the President of the US virtually unlimited powers of executive clemency.”

In a phone interview, one of the signatories, Mr. Korb, told Mr. Hoffman that the parole commission should have taken into account not just Mr. Weinberger’s discredited opinion, but also the views of former CIA and FBI heads and the former chairmen of congressional intelligence committees who support parole.

Antisemitism

William Webster, for example, who was head of the FBI when Mr. Pollard was arrested and later directed the CIA, has told reporters that he supports commuting Mr. Pollard’s sentence to time served. His reasons deal with “compassion” as well as the fact that others, whose offenses are at least as serious, have received less severe sentences.

Mr. Woolsey has told reporters that he believes antisemitism lies at the root of Mr. Pollard’s continued incarceration.

“My view is that he should be treated like other intelligence assets of allies. We spy on some allies, and they have spied on us. Because they’re allies, usually they have only been in prison for a few years. What I said is that people shouldn’t be hung up on [Pollard] being Jewish or Israeli. Pretend he’s Greek and release him,” he told Jerusalem Post managing editor Carolyn Glick.

Mr. Korb said it bothered him that the statements from Messrs Webster and Woolsey were ignored at the parole hearing.

“Woolsey saw Pollard’s whole file, and Jim’s a tough guy. You’ve got to hope that the parole board so overreacted that it will persuade people to say this is really a miscarriage of justice. It already was before. They broke their plea agreement, for heaven’s sake,” he said.

Renewed Efforts

Mr. Pollard’s supporters say that, especially in an election year, the American-Jewish community can exert meaningful pressure for a Presidential pardon. Malcolm Hoenlein, executive vice-president of the Conference of Presidents of Major American-Jewish Organizations, has recognized that winning Mr. Pollard’s freedom is a priority.

“It is an outrageous situation, a tragedy that has got to end,” he said.

National Council of Young Israel president Farley Weiss, whose organization has been supportive of Mr. Pollard for years, believes the failed parole hearing could prompt a renewed effort to lobby Mr. Obama by convincing him that denying clemency “is hurting relations with Israel and it’s wrong.”

Crossing Moral Boundaries

In Israel Likud Knesset Speaker Yuli Edelstein agreed, saying the parole board’s position on Mr. Pollard “crosses every moral boundary.”

Mr. Edelstein, who was the first Israeli minister to visit Mr. Pollard in prison, said he worries that Mr. Pollard’s failing health means he won’t survive.

“If, heaven forbid, this transpires, it would be remembered for generations as a breach in the Israel-US relationship,” he said.

“This fierce and outrageous denial of parole now will enrage the Jewish community,” said Mr. Weiss.

Everyone’s Fault

Others say that is naïve, but it has not kept voices like Hamodia’s from demanding action.

Referring to the Jewish tradition of pidyon shevuyim, securing the release of a Jew unjustly imprisoned, the paper insisted that the next few weeks and months are vital in the effort to obtain Mr. Pollard’s freedom and that, “with the exception of the handful of individuals who have worked tirelessly on Pollard’s behalf for many years, all of us are at fault for what happened last month in the White House,” when Jewish leaders were silent on the issue while meeting with Mr. Obama.

“It should now be clear to every intelligent observer that the reason Jonathan is still in prison isn’t because of what he did three decades ago. No one else who did what he did has served anything near the term that Mr. Pollard already has. He is still in jail because of who he is and whom he tried to help,” said the editorial.

S.L.R.