Editor’s note: Esther Pollard is the wife of imprisoned spy Jonathan Pollard, a former U.S. Navy intelligence analyst who was convicted in 1985 of one count of passing classified information to an ally, Israel, and sentenced to life imprisonment in spite of a plea agreement that was to spare him such a sentence. Jonathan became the only person in the history of the United States to receive life imprisonment for spying for an ally.
Esther discusses recent developments related to a bombshell lawsuit filed on behalf of her husband charging that Jonathan’s lawyer at the time of his sentencing, Richard Hibey, neglected to file any notice of appeal or inform Jonathan he had the right to appeal; publicly announced Jonathan had no avenue of appeal even though he did; failed to challenge a secret last-minute memo submitted to the court all but demanding a life sentence after the government promised not to seek such a sanction; and committed various other errors that denied Jonathan effective representation.
“The problem with Mr. Pollard is that he thinks he is unique.”
These words were spoken about my husband, Jonathan Pollard, by a judge in the U.S. Appeals Court for the District of Columbia.
Jonathan is in his 20th year of an unprecedented life sentence for his activities on behalf of Israel. On March 15, Jonathan’s pro bono attorneys, Eliot Lauer and Jacques Semmelman, appeared before a panel of three judges in the U.S. Appeals Court. Despite outward appearances, Jonathan’s case was never heard.
One of the judges, Judge Karen Henderson, asked no questions and made no comments of any kind. Another judge, Judge Judith Rogers, briefly engaged counsel for both sides. The third judge, Judge David Sentelle dominated the hearing. He was openly hostile, mocking and scornful.
Unchallenged by the other two judges, Judge Sentelle hijacked the hearing. He sidetracked the oral argument, verbally harassing and nitpicking on irrelevant matters until the attorneys’ time was up. Consequently, the only one heard that day was Judge Sentelle; and much of what he said was either irrelevant or deeply offensive.
For example, Judge Sentelle went so far as to insist that in this case the court does not have the authority to allow Jonathan’s security-cleared attorneys access to their client’s own sentencing file. How much more obvious could Sentelle’s contempt be, than to suggest that the court has no authority over court documents!
Worse, Judge Sentelle’s hostile declaration, “The problem with Mr. Pollard is that he thinks he is unique,” was deeply offensive to Jews and reverberated painfully in Israeli media reports.
“You are not unique” is code talk that has been used over and over again throughout the ages by those hostile to Israel and Jews, to deny concerns that Jews are being singled out for “special treatment.” It is the most routine of anti-Semitic devices, and it seems that it is always used precisely when Jews are indeed being singled out.
What makes Judge Sentelle’s remark even more stunning is that it so blatantly flies in the face of the facts.
The case is unique
Here are some of the unique features of the Pollard case that Judge Sentelle wishes to dismiss:
- Jonathan Pollard is the only person in the history of the United States to receive a life sentence for spying for an ally.
- Jonathan is in his 20th year of a life sentence for an offense which carries a median sentence of two to four years.
- Jonathan received his life sentence without benefit of trial, as the result of a plea bargain that he honored and the government abrogated.
- Jonathan was forever deprived of his legal right to a direct appeal of his life sentence because of egregious, ineffective assistance of counsel. His first attorney failed to file a simple notice of intent to appeal.
- Jonathan’s is the only espionage case in which then-Secretary of Defense Casper Weinberger personally intervened to influence the court.
- Weinberger delivered a memorandum to the sentencing judge, falsely accusing Jonathan of treason – a crime he was never accused of nor indicted for – and called for the maximum sentence of life.
- Since Jonathan was sentenced in 1987, neither he nor his security-cleared attorneys have ever been permitted to access the Weinberger document to challenge the lies it contains in a court of law.
- Jonathan is still not permitted to access the document even though Weinberger himself admitted in a 2002 interview that the case against Jonathan Pollard was actually “a small matter” and that it had been blown up and “made far bigger than its actual importance.”
Cruel and unusal punishment
Another unique feature of this case is the repeated attempts by the FBI to make Jonathan “buy” his way out of nightmarish prison conditions by incriminating other prominent American Jews. He was repeatedly asked to point out “co-conspirators” on lists of Jewish names he was shown. Jonathan adamantly refused.
More troubling still are the numerous episodes of cruel and unusual punishment that Jonathan has been subjected to – not only at the start of this case, but even as recently as the fall of 2003 when he was held in Washington for two weeks pending a Sept. 2 court date.
Some examples of cruel and unusual punishment Jonathan has endured include:
- being held naked, and incommunicado, in a prison facility for the criminally insane for a over a year (at Springfield);
- being held in harsh conditions in solitary confinement for nearly seven years (at Marion);
- being held naked, and incommunicado, in freezing temperatures in a dungeon cell (at Lewisberg);
- being subjected to extreme sensory deprivation;
- being subjected to severe physical degradation;
- being held in a sealed cell and gassed with chemical spray;
- being chained to a shower stall and blasted by torrents of ice water for long periods at a stretch;
- being denied appropriate medical treatment;
- being deprived of critical medication;
- being zapped into convulsions with an electric cattle prod.
Politics not justice
Perhaps the feature of this case that is the most disturbing is the way in which it has been exploited over the last two decades by government agencies. Jonathan’s continued incarceration has been a very useful tool for the government in the following ways:
The case is used to undermine Israel
To blacken Israel by blackening her agent, “unnamed” American officials continue to slander Jonathan in the media, falsely accusing him of crimes he was never accused of or indicted for – treason, compromising codes and betraying agents, among others. These false accusations are always made in the media, never in a court of law where Jonathan might challenge his accusers.
The case is used to slander Jews
Government memos, like the one the Defense Department issued in 1996 that was leaked to the media, cite the Pollard case as the reason the Jews cannot be trusted. The 1996 Defense memo identified Israel as a “non- traditional adversary,” not an ally. The Pollard case is always dredged up and paraded in the media by the government officials any time a new spy case breaks, or whenever Israel needs to be brought to heel. The 1997 Mega Spy Scandal (which turned out to be baseless) and the recent AIPAC Spy Scandal are examples. Both cases had nothing to do with Jonathan Pollard, yet his name was blasted all over the media as the prime example of how Israel and the Jews cannot be trusted.
The case is used to pander to the Arabs
In the government’s damage assessment of the case – the Victim Impact Statement – the worst “damage” that Jonathan was accused of was that he had angered the Arab allies by making Israel too strong. The harsh sentence he received and the “special treatment” he has been subjected to has been and continues to be an “offering” to appease the oil-rich Arabs.
The case is used to purge Jews from government
Jonathan was not the cause of anti-Semitism in the intelligence community; he was one of its victims. But his case is still used to justify government witch hunts to root out Jews in sensitive positions and cancel their security clearances. The David Tanenbaum and Adam Ciralsky cases – both were Jews ousted from the intelligence community because of their affiliation with Israel – are examples of this purge.
Hiding behind a veil of secrecy
The Justice, and Defense Departments, along with the intelligence community, willingly collude to keep the truth about the Pollard case buried. This ensures that the government can continue to exploit the case for other purposes, such as the above. It also explains why the government is so determined to keep Jonathan’s own court docket hidden under a veil of secrecy.
The best legal minds in the country support Jonathan’s right to access the material in his own sentencing docket. The American Civil Liberties Union, The National Association of Criminal Defense Lawyers, The American Association of Jewish Lawyers and Jurists and prominent individuals have filed a “friend of the court” brief in support of access to the documents. Their amicus brief expresses some compelling concerns about this case.
Others who have expressed their concerns about this case are: Sen. Hillary Rodham Clinton, D-N.Y., who said that she is troubled by “sentencing issues” in the Pollard case; Sir Rudy Giuliani, the No. 3 man at the Justice Department when the Pollard case broke, has repeatedly said that there is nothing in the Pollard file to justify the sentence he received; Sen. Charles Schumer, D-N.Y., Rep. Anthony Weiner, D-N.Y., and other American legislators have voiced similar concerns. All those who have seen the classified file, including Schumer and Weiner, say that it does not contain any justification for the life sentence Jonathan received.
And then there’s Dennis Ross, special envoy to the Middle East during the Clinton administration. In his new book, “The Missing Peace,” Ross openly acknowledges that Jonathan’s sentence is disproportionate and that he should be freed without condition.
Nevertheless, says Ross, Jonathan is too valuable as a bargaining chip with Israel to be freed as a matter of simple justice. Instead, Ross explains, Pollard should go free only in return for major concessions from Israel during “final status talks” with the Palestinians. No other American ally is treated with such disdain. Clearly it is politics, not justice that drives the Pollard case.
The problem is not with Mr. Pollard
No, Judge Sentelle. The problem is not with Jonathan Pollard.
It is with those American officials who, through five successive administrations, have used this case as a device to call into question the loyalty of American Jews and Israel’s reliability as an ally.
The problem is with those officials in the Justice, Defense and intelligence agencies who allow the case to fester because it is such a fine weapon with which to bludgeon Israel and the Jews.
And of course, the problem lies with Israel and the American Jewish leadership whose silence and complicity have exacerbated the situation and prolonged Jonathan’s agony. By continuously turning their backs on government excesses and judicial inequities in the Pollard case, they have tried to convince themselves that this really has nothing to do with them. Then along comes Judge Sentelle and reminds them that it does.
Israel and the American Jewish leaders have sat back for nearly two decades, patiently waiting for the American justice system to prove that it works as well for Jews as it does for every other religious minority. Yet, every time Jonathan Pollard – the Jew who spied for the Jewish state – encounters the American justice system, the entire Jewish world is slapped in the face all over again.
George Washington and Jonathan Pollard
Over 200 years ago, President George Washington visited the Truro Synagogue of the Jewish community of Rhode Island. He later penned a letter to the community declaring that Jews are welcome as full citizens of the United States of America and equal in every respect:
“It is now no more that toleration is spoken of,” Washington wrote, “as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” He also declared that the government gave “to bigotry no sanction, to persecution no assistance.”
Denied justice for 20 years, Jonathan’s case has become a noxious poison draining the vitality of the American Jewish community and undermining America’s relationship with Israel. If the promise that George Washington made to American Jews 200 years ago is to be honored; if the Jewish community in America is to have a future in this country, then justice for Jonathan Pollard, long delayed, must finally be done.
The Pollard case is not only about Jonathan Pollard. It is about America’s real attitude toward Jews and its relationship with Israel. It is also about whether or not the nation that is so devoted to bringing freedom to other parts of the world is capable of freeing itself. Government lies and judicial collusion are keeping Jonathan Pollard in prison. It is time for them to stop.
As long as Jonathan Pollard remains in prison, truth and justice in America are in prison too.
Esther Pollard is the wife of imprisoned spy Jonathan Pollard. For further information on the Jonathan Pollard case, visit the J4JP website.