July 4, 2002
Why Jonathan Pollard is Still in Prison
Jonathan Pollard's provocative conduct while in federal custody sealed his own fate.
On January 7, 2002, former Israeli prime minister Benjamin Netanyahu arrived without fanfare at the Federal Correction Center in Butner, North Carolina to visit America's most controversial Jewish prisoner. Now serving his 17th year of incarceration Jonathan Jay Pollard, prisoner 09185-016, pleaded guilty in 1986 to spying for Israel. He was sentenced to life imprisonment despite a binding plea bargain that would have guaranteed his eventual freedom.
For several hours, within earshot of a National Security Agency monitor, Netanyahu and Pollard spoke about the anguish of Pollard's imprisonment and practical ideas to set him free. "Contrary to perfidious rumors about his manner," remembers Netanyahu in a telephone interview, "Pollard was absolutely clear and in control, both intellectually and emotionally." "A great injustice has been perpetrated by keeping Pollard endlessly in jail," Netanyahu asserted, summarizing a key point among those advocating that he be freed.
Netanyahu's crusading tone is now a common feature of the Jonathan Pollard saga. Since that tumultuous afternoon, March 4, 1987, when federal Judge Aubrey Robinson stunned his courtroom by imposing a life sentence, Pollard has been the cause célèbre of an international movement to free him. The roster of those advocating for Pollard's release, or the overturn of his sentence, includes Israeli prime ministers; Nobel laureate Elie Wiesel, who has visited Pollard twice in prison; numerous members of Congress; and an armada of America's most celebrated defense attorneys, including Harvard's flamboyant Alan Dershowitz and Theodore Olsen, now the U.S. Solicitor General. Legions of grass-root supporters both within America's Jewish community and the Israeli electorate call for Pollard's immediate release. But an equally impressive group insists on his continued incarceration. Virtually the entire U.S. intelligence and defense establishment, with CIA director George Tenet acting as point man, want Pollard to remain in jail forever. Few are as adamant about that as senior intelligence officers who happen to be Jewish. Numerous ranking members of Congress, including Sen. Joseph Lieberman, and a large number of American Jewry's top communal leaders do not object to Pollard remaining behind bars. What's more, some top Jewish professional leaders privately express revulsion at efforts to win Pollard's freedom.
Endless articles and several books have been written about this complex and mysterious case, but one haunting question towers about all others: why has Jonathan Pollard been imprisoned so long?
He was convicted of a single count of disclosing documents to an ally foreign government, in violation of Title 18, section 794c. The far more serious crime of selling classified information to an enemy nation, such as Iraq or the Soviet Union, violates section 794b, and generally fetches a life sentence. But in contrast, those who divulge the nation's secrets to allies, as Pollard did, always receive lesser sentences.
His life term rivals only those handed down to America's greatest traitors, such as Aldrich Ames, whose treachery killed American agents, and John Walker who revealed our nuclear submarine positions to the Soviets. So why is Pollard still in prison with no end in sight to his life sentence? Pro-Pollard groups suggest anti-Semitism, but numerous Jewish organizations insist that is not the case. Some pundits maintain the spy's knowledge of America's secrets are so sensitive, his enemies so powerful, the politics so volatile, his crime so severe, that he can never be released.
But after an intense review of thousands of pages of Pollard-related documents, and dozens of interviews with prosecutors, senior intelligence officers, current and former Israeli and American government officials, the defense attorneys, and an exclusive prison interview with Jonathan Pollard himself, it seems clear the reason Pollard remains in prison has more to do with legal technicalities and foolhardy bravura than political intrigue. The focus now comes down to just two men. The first is Pollard's own original defense attorney, Richard A. Hibey, who is accused in court papers of having irrevocably mishandled the case 15 years ago in ways that may never be undone. The other is Jonathan Pollard himself, whose provocative conduct while in federal custody sealed his own fate. Pollard's only hope for freedom is now a habeas corpus action launched by his new pro bono attorneys.
No one has ever been able to identify reliably exactly what secrets Pollard sold to Israel. Jewish leaders who have been briefed by trustworthy sources have constantly been told the same refrain: "If you only knew how severe the damage was." Despite reams of guesswork and Washington's porous nature, the details are still undisclosed.
But those details are clearly enumerated in a 46-page sworn declaration to the sentencing judge by then-Secretary of Defense Caspar Weinberger, most of which has been classified top secret. The secret affidavit includes a classified analysis of 20 illegally disclosed documents.
"The judge requested -- the court asked -- for a confidential, highly-classified summary to report the damage done," Weinberger told me in an interview. Although the declaration was signed by Weinberger and submitted as the Secretary's personal affidavit, the damning document was in fact assembled piecemeal by an inter-agency group of intelligence officials independently assessing Pollard's damage to their own operations. A redacted copy of that sworn 46-page declaration, obtained by this reporter, together with information and analysis reported by several of the actual contributors, indicates that Pollard indeed compromised the most sensitive aspect of American intelligence, providing Israel with the highest level of secret information. "More than 1,000 unredacted messages and cables," of which a significant number were not just top-secret but "codeword sensitive," were delivered to Pollard's Israeli handlers, according to the Weinberger Declaration.
Washington feared that Israel could have traded the secret materials with other intelligence services. The information could have even ended up in Moscow, perhaps as a bargaining chip at a time when Israel was trying to free Soviet Jews. Numerous intelligence reports about Soviet missile systems, delivered by Pollard, exposed the way America analyzed Soviet weapons. He transmitted regional surveillance data from the VQ-2 reconnaissance squadron in Spain, thereby enabling Israel to virtually track America's own intelligence capability in the Mediterranean and even over Israel itself. This was crucial in Israel's 1985 bombing of the P.L.O. headquarters in Tunis, which depended upon Israeli F-15s evading both American and Arab listening posts over North Africa.
But all of this was dwarfed, according to a principal author of the Weinberger Declaration, by photocopying for Israel the massive 10-volume RASIN Manual. An acronym for Radio and Signal Intelligence [RASIN], the precious manual is known as "the Bible," according to the intelligence officer. The RASIN Manual details America's global listening profile, frequency-by-frequency, source-by-source, geographic slice by geographic slice. RASIN was, in effect, a complete roadmap to American signal intelligence. Informed sources say Pollard's RASIN Manual disclosure was the crux of a secret exchange in Judge Robinson's courtroom just moments before the outraged judge finally pronounced a life sentence. Some estimate the loss of the RASIN manual cost America billions of dollars and many years in completely restructuring America's worldwide eavesdropping operation. Though Pollard has sought to downplay the consequences to the U.S. of his actions, his crime was lasting and devastating to the U.S. intelligence community.
THE MEDIA CAMPAIGN
To avoid a public trial, the government negotiated a binding, written plea agreement with both Pollard and his wife at the time, Anne. By way of background, plea agreements govern conduct of prosecutors and defendants in the time leading up to sentencing.
"A plea agreement is exactly what the two words suggest," explains distinguished former federal Judge George Leighton, who has studied the Pollard case. "It is an agreement between defendant and government governing the guilty plea and the length of sentence the government will insist upon. This is done to induce the defendant to relinquish the important right of trial. The government must live up to the agreement, and the plea agreement can be enforced against the government."
Pollard's binding plea agreement required him to cooperate fully with numerous polygraph examiners and intelligence investigators. This he did. In return, prosecutors promised that while they would indeed request substantial jail time, they would not ask for the maximum: life. Toward that end, prosecutors promised to stress to the judge the spy's post-arrest cooperation with investigators and polygraphers, and limit their allocution of facts to the circumstances of his espionage.
Prosecutors agreed to omit aggravating details of Pollard's high Israeli-paid lifestyle, suggestions of cooperation with South Africa, and other aggravating factors that could easily inflame the sentencing judge to mete out a longer term. As part of the overall deal, Anne, who assisted Pollard's espionage, would be shown leniency with a minimal term, and her bail while awaiting sentence would not be opposed. The two agreements were "wired," that is, both Pollards had to comply with all provisions.
Both agreements also routinely required the Pollards to obtain specific approval from the Director of Naval Intelligence for any media interviews or publication. Clearly, the government's intent was to restrict further classified disclosures, including inadvertent ones, and basically deprive the Pollards of any notoriety, prestige, income or other benefit that interviews, books, or movies might bring. Such conditions are standard in many plea agreements, especially those involving espionage. Keeping one's mouth shut and displaying remorse is the first priority when seeking the mercy of the court.
But the Pollards tried to outsmart mercy. They decided to rally the American Jewish community and massage public opinion, hoping to create outside pressure on the judge and prosecutors to dispense a reduced sentence. Without the knowledge of his attorney, Pollard granted two exclusive prison interviews to Wolf Blitzer, the CNN journalist who was then Washington correspondent for the Jerusalem Post. In these interviews, Pollard presented himself as a highly motivated Jew determined to help Israel in the face of an intransigent American intelligence community that was endangering the Jewish State.
"No Bumbler But Israel's Master Spy," the headline declared. Moreover, a letter from Pollard ran on the front page of the Jerusalem Post decrying his "judicial crucifixion," and assuring "the gains to Israel's long-term security were worth the risks" he took. The letter even lamented the fact that "no one has summoned the [Jewish] community to put a stop to this ordeal."
The result of the interview was a disaster for Pollard, who infuriated the government with his defiant stance.
After learning of one of the interviews, Pollard's defense attorney, Richard Hibey, is said to have shrieked so loudly into the phone, a partner rushed in to see if he was hurt. As damaging as the Jerusalem Post interview was, Anne Pollard's interview with "60 Minutes" a few days before the scheduled sentencing did far more damage. In that interview, Anne told the nation, "I feel my husband and I did what we were expected to do, and what our moral obligation was as Jews, what our moral obligation was as human beings, and I have no regrets about that."
Remorse now seemed a moot point.
Prosecutors Joseph diGenova and Charles Leeper were outraged, as was Judge Robinson. So was Pollard's now humiliated defense attorney Hibey, who was expected to keep his client in line.
"I assure you, Judge Robinson got a videotape of the 60 Minutes interview the very next day," recalls Hamilton "Phil" Fox, one of Pollard's subsequent defense attorneys. "It was a classic case of how not to behave," a senior member of the prosecution team told this reporter.
Jewish officers throughout the American intelligence commu
"Upon my release," Pollard continues, "this whole case and everything associated with it is consigned, as far as I'm concerned, to the dustbin of history. ... My life has been utterly destroyed. People I love and care for have been destroyed ... [To me] this is Kryptonite."
Finally, Pollard was asked point blank, "Do you really want to get out of here--or would you rather stay in prison as an international Jewish celebrity?"
With a voice riveted to determination, he replied, "I would rather eat the dust of Israel as a beggar and be with my wife than to continue this horrific existence that I'm currently suffering. ... I'm a very small person in the course of Jewish history, in the course of our people's existence; I'm a blip on the radar screen. I'm a footnote; a small footnote at that. ... I really screwed up and I can't -- if I get another chance, by the grace of God -- I can't screw up again. You only get one reprieve, and I'm not going to muck it up."
Edwin Black is the author of the international best-seller "IBM and the Holocaust" (Crown Books 2001 and Three Rivers Press 2002). This article was made possible by a grant from the Jewish Investigative Journalism Fund.
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