By Eliot Lauer and Jacques Semmelman
A recent breakthrough in the case of Jonathan Pollard has shed powerful new light on the injustice of his continued incarceration. Key portions of a critical classified document, on which the government has relied as its justification for keeping Mr. Pollard in prison for nearly 30 years, have now been declassified.
As a result, longstanding government assertions that this specific classified document contains the proof that Mr. Pollard caused unprecedented harm to U.S. national security when he delivered classified information to Israel, have now been exposed as utter falsehoods.
On Nov. 13, 2014, after years of litigation, the Interagency Security Classification Appeals Panel, or ISCAP, granted our appeal on behalf of our pro bono client, Jonathan Pollard, and ordered the declassification of significant portions of a declaration that had been submitted to the court in 1987 by then-Secretary of Defense Caspar W. Weinberger in connection with Mr. Pollard’s sentencing.
Mr. Pollard had imparted classified information to the state of Israel. He was arrested in 1985. In 1987, Mr. Pollard was sentenced to life in prison, largely on the basis of the Weinberger declaration.
Since then, the government has stridently invoked the Weinberger declaration as its basis to oppose executive clemency or parole for Mr. Pollard. The government has asserted that Mr. Pollard should not be released from prison because the Weinberger declaration establishes that Mr. Pollard caused greater harm to U.S. national security than had ever occurred previously. The government has been able to present this harsh characterization of the Weinberger declaration without fear of contradiction, as no one representing Mr. Pollard has been allowed to see the Weinberger declaration since the day Mr. Pollard was sentenced.
For all these years, virtually the entire Weinberger declaration has been kept under seal by the government under the rubric “classified information.” The government has fought fiercely to prevent the two of us – Mr. Pollard’s security-cleared counsel since 2000 – from seeing any of the classified portion of the Weinberger declaration, even under the strictest security conditions.
The recent disclosures ordered by ISCAP show that the government has been dishonestly hiding behind the mask of “classified information” to materially mischaracterize the nature and extent of the harm caused by Mr. Pollard. The newly disclosed material shows that any harm that may have been caused by Mr. Pollard was in the form of short-term disruption in foreign relations between the United States and certain Arab countries. That is not at all the same thing as harm to U.S. national security. And it was dishonest for the government to pretend that it is.
The government’s deception had its most blatant and prejudicial impact at Mr. Pollard’s parole hearing held in July 2014, during which the government invoked the Weinberger declaration and – without showing it to the parole commission – urged the commission to accept its representation that the document substantiated more harm to the national security of the United States than had ever occurred previously. In its decision denying parole, the commission took the government at its word and essentially parroted the government’s characterization of the Weinberger declaration when it wrote that Mr. Pollard had caused “the greatest compromise of U.S. security to that date.”
That is an outright falsehood, and the recent revelations prove it.
The newly disclosed portions reveal the substance of the Weinberger declaration, which is devoted to the possible effect of Mr. Pollard’s actions on U.S. relations with Arab countries.
Thus, it is now revealed that Mr. Pollard provided Israel with information concerning the “political-economic affairs of Middle Eastern nations,” various “Middle Eastern orders of battle,” and the “technology of Soviet weapons and radar systems” used by various Arab governments. The potential consequence to the United States of Mr. Pollard’s conduct is described by Mr. Weinberger as “a high probability of harm to the foreign relations of the U.S. with friendly Arab nations.”
While the phrase “damage to the national security” is used as a section heading, what appears below it is, once again, in the nature of potential impact on foreign relations. For example, Mr. Weinberger bemoans the fact that Mr. Pollard provided information that enabled Israel to conduct a “successful strike on PLO headquarters in Tunisia” while “avoiding contact with Libyan Air Forces.” In the same section, Mr. Weinberger decries the fact that Mr. Pollard “provided information on Soviet built air-to-air missile systems and Middle East air orders of battle,” even while acknowledging that “[s]ince Israel depends for its national security on control of Middle East air space, much of this information was considered vital, and, as Col. Sella [of the Israeli Air Force] remarked, was not previously possessed by Israel.”
At Mr. Pollard’s sentencing, the government submitted a Victim Impact Statement, or VIS, the instrument designed by law specifically to allow the victim of a crime – in this case the government itself – to describe to the sentencing judge the full harm suffered.
The VIS says nothing about harm to U.S. national security. The VIS focuses on relations with Middle Eastern countries, and on the lack of a quid pro quo for information the United States would have preferred to barter with Israel:
Mr. Pollard’s unauthorized disclosures have threatened the U.S. [sic] relations with numerous Middle East Arab allies, many of whom question the extent to which Mr. Pollard’s disclosures of classified information have skewed the balance of power in the Middle East. Moreover, because Mr. Pollard provided the Israelis virtually any classified document requested by Mr. Pollard’s coconspirators, the U.S. has been deprived of the quid pro quo routinely received during authorized and official intelligence exchanges with Israel, and Israel has received information classified at a level far in excess of that ever contemplated by the National Security Council. The obvious result of Mr. Pollard’s largesse is that U.S. bargaining leverage with the Israeli government in any further intelligence exchanges has been undermined. In short, Mr. Pollard’s activities have adversely affected U.S. relations with both its Middle East Arab allies and the government of Israel. (Emphasis added.)
The VIS thus reflects friction between the United States and “Middle East Arab allies,” and temporary reduction in bargaining leverage by the United States. It says nothing at all about harm to U.S. national security, and certainly does not allege, in words or in substance, that this was the greatest compromise of U.S. national security up to that time.
Those who have opposed relief for Mr. Pollard have asserted that the VIS merely describes what could be shared with the public, and that grave damage to U.S. national security is documented in the secret Weinberger declaration. This has now been proven false. The Weinberger declaration is merely a more detailed version of the VIS.
The new revelations also dovetail closely with the disclosures in another recently declassified document, a 1987 CIA study of the Pollard case. The CIA study concludes that Mr. Pollard supplied Israel with information regarding Arab and Pakistani nuclear intelligence, Arab military capability and weaponry (including biological and chemical weapons), Soviet advisers in Syria and Soviet training of Syrian personnel, the PLO’s Force 17, and a radio signal notation manual requested by Israel to help in the decryption of intercepted communications of Soviet military advisers in Damascus.
Tellingly, the CIA study specifically states that Israel never requested information from Mr. Pollard concerning “U.S. military activities, plans, capabilities, or equipment.” Thus, both recently disclosed government documents, as well as the VIS, point to the same conclusion: Mr. Pollard’s activities may have ruffled some feathers in the Middle East, but there was no material impact on U.S. national security.
The government’s unconscionable deception has deprived Mr. Pollard of his freedom for too many years. The document brandished by the government to implement its scheme, hidden from scrutiny until now, has finally been exposed for what it is: a description of a brief, long-forgotten blip in foreign relations, not a frightening exposition of unprecedented harm to U.S. national security.
After nearly three decades, in light of the government’s perfidy, the only conceivable way to provide a belated measure of justice is to end Mr. Pollard’s incarceration immediately. President Obama has the solemn duty to uphold the law of the land by finally putting a stop to this ongoing travesty. There are no more excuses. The president should exercise his constitutional power and grant clemency to Jonathan Pollard.
Eliot Lauer and Jacques Semmelman, litigation partners at Curtis, Mallet-Prevost, Colt & Mosle LLP, have been Jonathan Pollard’s pro bono attorneys since 2000. Lauer has 41 years of experience as a civil and criminal litigator. Semmelman has 31 years of experience, and was formerly a federal prosecutor in New York.