Editorial: 1992 Appeal Denied
March 27, 1992 - The Forward [NY]

As the case of Jonathan Pollard winds its way through the appeals courts, it
is becoming increasingly clear that at the bottom the outstanding issues are
political. Not that we'd want to belittle the relevance of the work of
Pollard's lawyers or of the further appeal that may be made to the highest
bench. But as the case has been winnowed by last week's opinions from the
U.S. Court of Appeals for the District of Columbia Circuit, it becomes clear
that if any mistakes were made, they were not made by the judge who took
Pollard's guilty plea and meted out his life sentence.

There had been suggestions that the sentencing judge, Aubrey Robinson, was
compromised because he had allegedly received out-of-channels information
about the material Pollard sent to Israel. Supposedly the judge learned that
some of the secrets Pollard passed to Israel referred to Israel's dealings
with South Africa. Judge Robinson, as a black man, might have been
particularly sensitive to such evidence. Such was the opinion of Arthur
Goldberg, who talked with Judge Robinson, according to an affidavit of Alan
Dershowitz. But this affidavit was not even credited by the one judge who
sided with Pollard on appeal, Stephen Williams.

What Judge Williams does credit, in a noteworthy dissent, is the argument
that the federal prosecutor violated the spirit, and on one key point even
the letter, of the deal under which he got Pollard to give up his right to a
trial and to plead guilty.

This is no small matter. In his dissent, from which we print excerpts in the
adjacent columns, Judge Williams goes through the prosecution's sentencing
memorandum, paragraph by paragraph, detailing the slyness by which the
prosecutor sought to evade the obligations of the contract he had made with
Pollard.

To get language strong enough to describe the offensiveness of the
prosecutor's behaviour in the Pollard plea bargain, the judge had to reach
for his Shakespeare, whence he quoted Macbeth's curse against the witches:

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.

Nor, incidentally, does the prosecution get much of a lift from the two
judges - Lawrence Silberman and Ruth Ginsburg - who sided against Pollard.
They just figure that the "hard-nosed dealings of the prosecution weren't
enough to justify a new hearing, according to various technical precedents
in case law. It may be on this point that the Supreme Court will have to get
involved.

Meanwhile, Pollard will be held, presumably in the solitary state in which
he has been confined for most of the time since he was arrested in 1985, and
the rest of us will be left to consider just what was the animus that led
the Justice Department to deal with Pollard in a way that prompts a judge to
question the prosecution's very integrity.

The clue, in our view, is to be found in the decision of President Reagan's
defense secretary, Caspar Weinberger, to use the word "treason" to describe
Pollard's crime. Treason is the most heinous of all crimes, and our
Constitution prohibits Congress or courts from defining treason in any way
other than as waging war against the United States or adhering to its
enemies. So when no less an officer as the secretary of defense invokes in a
written document the word "treason" to describe Pollard's crime, it can
suggest only that he wants the court to regard Israel as an enemy.

Such views are not surprising coming from Mr. Weinberger, whose hatred of
Israel often overrode better judgment. But we find it hard to imagine that
Pollard would have been handed a life sentence if the administration's star
witness hadn't been talking about Israel as though it were an enemy state,
not when spies for the Soviet Union were receiving lighter sentences.

One job of the courts, however, must be to remain unswayed by these kinds of
passions. It may be that the Supreme Court will be asked, and agree, to
untangle this knot. It may be that Pollard will spend the rest of his days
in his solitary basement cell. Or it may be that a future president will
conclude that it is no longer dangerous for a man in possession of the
secrets Pollard knows to go free and will then have the courage to explain
to a troubled public that although Pollard committed an extremely serious
crime, he was dealing with a friend of America and has served enough time.

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Note: The Supreme Court later refused to hear the appeal of this decision.
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See also:
Excerpts from Judge Steven William's Dissenting Opinion
http://www.jonathanpollard.org/1992/030292.htm

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JUSTICE FOR JONATHAN POLLARD
Website: http://www.JonathanPollard.org
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