Last November, after serving 30 years of a life sentence in federal prison, Jonathan Pollard was paroled. Not because the government cut him any slack, but because life termers typically serve 30 years and it was doubtless too much, even for Mr. Pollard’s federal tormentors, to contemplate the notion that the only way he would leave prison would be in a coffin.
However, not content with having long treated Mr. Pollard so differently from others similarly situated – he is the only American ever given a life sentence for spying on behalf of an ally – there were broad, severe, and unprecedented restrictions placed upon him while he serves his parole period; restrictions that prevent him from traveling to Israel and, effectively, from becoming gainfully employed.
When Mr. Pollard was released and the restrictions announced, we commented (editorial, Nov. 27, 2015) on the venality of his incarceration and parole terms. We believe that editorial bears reprinting in light of Mr. Pollard’s continuing predicament.
Cutting Jonathan Pollard Some Slack
The release on parole of Jonathan Pollard from federal prison after he served 30 years of a life sentence for espionage has not eased the concerns many of us have had about this case. Indeed, the Obama administration’s refusal to allow Mr. Pollard to resettle in Israel only deepens those concerns.
While Mr. Pollard pleaded guilty to spying against the United States, the discriminatory treatment he has received at the hands of the government argues for his freedom to move to Israel. And therein lies the story. Spies are generally allowed to return to the land of their spymasters after serving their sentences, actually sometimes even before their sentences are up if a swap can be arranged.
We cannot help but believe the treatment of Mr. Pollard was and is rooted in the fact that he spied for Israel. Unfortunately, there is a surfeit of misinformation about what he did that provides cover for his highly unusual treatment.
For example, in an editorial arguing against allowing Mr. Pollard to move to Israel, The New York Times said this:
Under the rules of his parole, he cannot leave the United States for five years without permission, and the Obama administration has shown no intention of letting him go. It should not: Mr. Pollard grievously violated the laws and the trust of his country…. Many facts remain unknown because Mr. Pollard pleaded guilty, and his case did not come to trial. But the known facts do not warrant special consideration.
So despite “Many facts remain[ing] unknown” and the “known facts” having never been proved at trial, the Times and others are prepared to simply assume the worst about Mr. Pollard.
The story of his indictment and plea bargain raises other serious questions about his treatment. Thus, he was charged under a federal espionage statute that makes it a crime to deliver classified information to a foreign government “with intent or reason to believe” either that the information would result in “injury” to the U.S. or that the information would work “to the advantage of a foreign nation.”
Mr. Pollard was indicted under the “advantage” rather than the “injury” provision and subsequently pleaded guilty to providing secret information to Israel with knowledge that it would benefit that country. He was never charged under the “injury” provision. Yet not only had no one ever drawn a life sentence for violating the “advantage” provision, no one had ever drawn a life sentence for providing secret information to an ally under any circumstances. Moreover, government prosecutors agreed not to seek a life sentence in his case.
However, after the plea bargain was entered into and before the sentencing, federal prosecutors started providing information to the sentencing judge that they claimed pointed to all manner of injury Mr. Pollard had inflicted on the United States. Mr. Pollard’s lawyers were never given the opportunity to dispute those claims at a trial because Mr. Pollard, with his plea deal, waived his right to a trial. Yet this information apparently swayed the judge and he imposed a life sentence.
The strong likelihood that prosecutors violated the plea agreement didn’t matter. To be sure, there are some who contend that it was Mr. Pollard who breached the agreement because he had agreed not to go public about his case without permission and then sat for media interviews. Of course this argument ignores the fact that Mr. Pollard by then was already in federal detention and would not in any way have been accessible to the press without approval by the bureau of prisons.
In addition, the federal prosecutors who charged Pollard and subsequently entered the plea agreement with him did so on behalf of their client, the U.S. government. So the charge and agreement had to have had the approval of officials who had made an assessment of the nature and seriousness of Mr. Pollard’s crime. Yet all of that just went by the boards.
It is high time that Mr. Pollard be cut just a little slack. At the very least he should be allowed to get on with his life where he wants to lead it.
Shortly after that editorial appeared, a federal judge in Manhattan, upon prompt application of Mr. Pollard’s lawyers challenging the restrictions, ordered the government to provide an explanation for the unusual parole conditions.
The judge, Katherine B. Forrest, sitting on the United States District Court for the Southern District of New York, ordered the U.S. Parole Commission to provide the “factual basis” for the restrictions and to identify whether Mr. Pollard carries “in his head” information that could be damaging to the public. She added that “the current record is insufficient to support the breadth of such conditions [restrictions].”
Both the Justice Department’s submission and the Pollard response have been submitted to Judge Forrest and a ruling is expected shortly. Prosecutors have until now prevailed in their case against Jonathan Pollard based on the strength of supposition and secret, undisclosed information. At long last, the basic facts of the Pollard story may soon see the light of day.