Netanyahu’s Plea for Pollard

Opportunity rarely knocks as unambiguously as it has knocked on President Obama’s door in respect of Jonathan Pollard. It follows from Prime Minister Netanyahu’s letter to the president, reiterating Israel’s remorse for the spying operation that, more than a generation ago, paid Pollard to hand over some of America’s most sensitive secrets. Mr. Netanyahu asked Mr. Obama for clemency for Pollard, who has been in prison for 25 years of a life sentence. Were Mr. Obama to grant clemency, he would ameliorate a failure of due process, address a humanitarian issue, and take a step toward healing his own frayed relations with a Jewish community that has offered little but support for his administration.

It happens that we don’t think a life sentence is too long a punishment for conviction of secretly passing classified information to a foreign government, even, in serious cases, if conviction is for only one count, as it was in the case of Pollard. The one-time civilian analyst for the Navy did commit a serious crime. But it also happens that the sentence meted out to Pollard was vastly disproportionate to sentences handed down against other spies, including some who spied not for a friend of America, which is what Pollard did, but for countries that could be expected to use the fruits of spying in actions against us, like the Soviet Union or communist China.

The circumstances in which that disproportionate sentence was handed down against Pollard are what rankle American Jews even after all these years. The sense of it was caught in 1992 in a magnificent dissent by a rider of the District of Columbia Circuit of the United States Court of Appeals, Judge Stephen Williams. He was one of three judges who heard Pollard’s plea for a new sentencing hearing. The two other judges on the circuit panel, Laurence Silberman and Ruth Bader Ginsburg, sided against Pollard in a highly technical opinion. Judge Williams's dissent accused the government of having broken both the spirit and, in one respect, even the letter of the binding agreement under which it had obtained Pollard’s guilty plea.

Judges Silberman and Ginsburg wrote that “of course” the government “must keep the plea agreements it makes.” They conceded that “[a]ny breach of a promise that induced the guilty plea ordinarily entitles the defendant on direct review either to specific performance and resentencing before a different judge or to withdrawal of the guilty plea . . .” But, they wrote, “not all breaches of plea agreements can be said to result in complete miscarriages of justice.” Judge Williams, dissenting, wrote that “the government’s breach of the plea agreement was a fundamental miscarriage of justice requiring relief.”

The plea agreement imposed three obligations on the government, Judge Williams wrote. It had to bring to the sentencing judge’s attention Pollard’s cooperation following the plea. It had to refrain from asking for a life sentence. And it had to confine its own allocution to the “facts and circumstances” of Pollard’s crimes, rather than complain about his cooperation or allege a lack of cooperation afterward. In the end, Judge Williams concluded that the government “complied in spirit with none of its promises; with the third, it complied in neither letter nor spirit.” He blamed the prosecution, not the judge. And to underline the heartbreak, he concluded his dissent by quoting the curse of Shakespeare’s Macbeth against the witches “whose promises — and their sophistical interpretations of them — led him to doom.”

And be these juggling fiends no more believ’d,

That palter with us in a double sense;

That keep the word of promise to our ear,

And break it to our hope.

At the heart of the miscarriage, in our view, lay the reference by the then defense secretary, Caspar Weinberger, to treason in describing what Pollard did. This point was made in 1992 in an editorial in the Forward. It happens that the American Constitution forbids our courts or Congress from defining treason as anything other than levying war against the United States or adhering to its enemies, giving them aid and comfort. The use by an officer of the government of the language of treason admitted into the sentencing proceedings the sentiments of those who view Israel as an enemy of the United States, when in fact the opposite is the case. The sentencing should have been reheard, and nearly 25 years later it is way past time for Pollard to be released. Mr. Netanyahu echoed the sentiments of millions of Jews when he wrote to Mr. Obama, and it would be an act of courage, mercy, and justice for Mr. Obama to commute Pollard’s sentence to the time that he has already served.