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Damage to the United States - Legal Text

January 16, 2000

Justice4JP Prefacing Note:
This is Part One of a series of selected legal texts excerpted from the Pollard Memoranda in Aid of Sentencing.

The following legal document, written in 1987, was part of a court submission in aid of sentencing. The document makes a compelling case about the Government's failure to produce a single shred of evidence of any damage done to the United States as a result of the activities of Jonathan Pollard.

The government based its damage claims on potential worst-case scenarios that might occur at some future date, and not on any hard evidence. In the 13 years that have since elapsed, none of these worst-case scenarios ever occurred, and the government has yet to demonstrate a single example of any harm done to US national security.

The author of this document, Richard Hibey, was Jonathan Pollard's first attorney. He is the only attorney who was permitted to see the full classified record of the Pollard case - some of it only briefly. After Hibey, the US Government never again allowed access to the classified record of the case - even to Pollard's attorneys who held all of the necessary security clearances. Consequently, Jonathan Pollard has never been permitted to challenge these documents in a court of law - a gross violation of his constitutional right to due process.

The full text of "Damage to the United States" [US Govt. redacted] follows:


Damage to the United States

Excerpted from: Criminal No. 86-0207 [Redacted]
Jonathan J. Pollard 2nd Memorandum In Aid of Sentencing

Submitted February 27, 1987

A. Introduction

Perhaps the critical issue in the court's determination of an appropriate sentence for Mr. Pollard is the extent to which his conduct damaged the interests of the United States. In recognition of the importance of the damage issue, the United States has not only devoted a section of its public sentencing memorandum to a discussion of the alleged damage caused by him, but it also has filed a supplement to the memorandum elaborating on its contentions and has submitted an affidavit by the Secretary of Defense purportedly detailing the damage assessment.

While it is proper, indeed, obligatory, that he United States set forth its views regarding damage inflicted by Mr. Pollard's conduct, Mr. Pollard expected that the opinions expressed would be succinct , objective and relevant. Instead the United States has filed a blizzard of contentions notable for the emphasis on the phrases "may have," "could have," and "possibly has."

The damage assessment [1] in this case fails to establish the facts of injury in such a way as to justify the substantial incarceration for Mr. Pollard. As presented, it is an overstated polemic of the evidence one expects to find in a case of espionage. Instead of concentrating on the actual damage to US national interests, the United States has engaged in unbridled speculation on the potential damage. While this speculation would be germane if Mr. Pollard had only been apprehended yesterday, over 15 months have elapsed since his arrest.. During that time, the United States has debriefed him extensively, conducted exhaustive reviews of the documents delivered by him to the Israelis, and had the opportunity to observe any material alteration in the relationships between it and the Government of Israel, allied nations and friendly Arab nations. The United States should have developed a concrete assessment of the damage by now, thereby obviating the need for any speculation. The United States' reliance on speculation therefore underscores the tenuousness of its claims. [Justice4JP Note: how much more so is this the case now that 15 years - not just 15 months - have elapsed !]

B. There Was No Disclosure to the Enemy

In the first place, no injury is demonstrated in the same way as in the case of unauthorized disclosures to a hostile nation. This point comes home only when a comparison is made between which the Government asserted to be the injury to our national security in such celebrated cases as Walker, Pelton, and Morison. In each of these prosecutions, the injury to the United States was painfully clear: the Soviets received the classified materials.[2] The result was that sources of information were compromised, secret methods of collection were exposed, and locations of equipment and personnel revealed. Since the US intelligence effort is directed primarily at the Soviet Union, these repercussions meant basically that the States had to start over to reestablish a collection network. Accordingly, the United States was required to establish communication links, methods and channels, to replace lost equipment and personnel, to find new intercept sites, and to develop new technology to circumvent Soviet defenses or interference.

The Government has argued that the sheer volume* of information provided has made this one of the worst espionage cases in US history . *[Justice4JP Note: See Facts Page - points #20 and #21.] Again, this pandering fails to recognize the most salient of all facts in the case: the enemy was not the recipient of the information. Volume per se is irrelevant if it is not reflective of injury. As an example, in US v. Morison, United States District Court for the District of Maryland, the defendant was convicted and sentenced to 3 years in jail for having supplied Jane's Defense Weekly with a satellite photograph of a Soviet ship under construction. Mr. Pollard participated in the damage assessment for the Morison case.... [Section redacted by US Govt. for security reasons]... Thus the volume of the compromised information meant nothing; it was the Soviet's possession of it that created the injury to our national security.

In this case, no such allegation of such damage is made or proof offered. Secretary Weinberger nowhere alleges that , the United States has lost the lives or the utility of any agents, that it has been obligated to replace or relocate intelligence equipment, that it has had to alter communications signals, or that it has lost other sources of information, or that our technology has been compromised. Indeed, the memorandum only discusses the possibility that sources may be compromised in the future, thus requiring countermeasures. The absence of any countermeasures taken in the aftermath of Mr. Pollard's conduct therefore is perhaps the truest barometer of the actual damage, or absence thereof, to the national security. Consequently, the methodology of this damage assessment is seriously flawed for lack of a "clincher". The focus is not in the compromise of the substantive information but rather on the intangible, unproven speculation that we shall be unable to negotiate effectively with the Government of Israel over intelligence-sharing for some time. One may assume that if there were evidence of this, it would be presented in these papers. Certainly, after the passage of 18 months since the Israelis began receiving information from Mr. Pollard, such a development would have surfaced by now - if it in fact has happened; it has not.

C. The Political Impact

The speculation, in the absence of hard evidence, extends to the Secretary's concern about our allies. Again there is no showing of any adverse fallout with our allies from these disclosures. Again, with so many months having passed since the case broke, it is reasonable to expect some evidence of this adversity and not someone's theoretical notion that it could happen.

Even the political assessment is questionable. Is the Israel - Tunis raid different from the US raid on Tripoli? It is not fair or accurate to distinguish the two on the basis of our friendship with Tunis versus our enmity with Libya. Each was a violation of sovereign territory. Each was carried out for the same purpose: to retaliate against terrorists in their known locations. Each was praised by our President as responsible reactions to terrorism. After 15 months, since Mr. Pollard's arrest, our relations with each of those countries has not changed. Therefore the Secretary's policy analysis is less an analysis and more a convenient theory of injury which bears no relation to reality.

D. Israel's Intent in Receiving Classified Information

By the same token, fears about what Israel might do with this Information by sharing it with third countries, are completely unfounded, unless of course the Secretary is willing to state that information that Israel has lawfully received is also subject to improper sharing. If that is the case, the danger here is not peculiar to the compromised information; it extends to all of it - compromised and uncompromised alike.

The heinousness of any espionage must take into account the intent of the recipient of the classified information to harm the United States. There is no evidence in the damage assessment of Israel's intent to injure the United States by reason of its having illegally received classified information from Mr. Pollard. Israel is simply not the enemy - it is not the Soviet Union - it is not a Warsaw Pact nation - it is not China - it is not even India. Israel, as has been pointed out, enjoys a "special relationship" with the United States. It is our staunch steadfast ally. The worst that has been said about our loss in this case is that our negotiating posture in near-term intelligence exchanges might be jeopardized (although after 15 months no evidence of this appears).

There is more psychology at work here than there is injury. Notoriety is the direct result of the much-debated, discussed and analyzed phenomenon of how loyal Jewish-Americans can serve the ideal of supporting the Jewish State without doing violence to their allegiance to the United States. Mr. Pollard failed to maintain that intellectual and spiritual balance that Jewish-American strive to maintain between their love for Israel and their loyalty to the United States. For his actions as a result thereof, he must be accountable to our laws.

E. Relationship Between the United States and Israel

Just as a man who strikes another suffers varying degrees of punishment depending on whether the victim lives or dies, so should Mr. Pollard be sentenced on the basis of the damage he caused to the security of the United States. It is clear that punishment must be imposed in the form of incarceration but that does not mean it should be done without regard to the actual harm suffered by the United States. Accordingly, the one point he asks the court not to lose sight of is that the country to which he passed the information was not the Soviet Union. Instead, the recipient of the information is probably one of the closest, if not the closest ally, of the United States. Since Israel's formal establishment in 1948, the United States has provided substantial assistance to it, in the form of military hardware, financial aid, and intelligence information. Even though the United States has never committed formally to defending Israel from aggression, a cornerstone of US foreign policy for almost forty years has been a self-imposed duty to ensure the survival of the nation. To that end, Israel remains the largest recipient of US military equipment and financial aid, even though it is a diminutive country both in size and population.

The relationship between the United States and Israel is not exclusively that of donor-donee. The United States' commitment to the survival of Israel is not entirely a product of altruism. The United States does have a natural sympathy towards Israel because it is the only stable democracy in the Middle East, and because it is surrounded by hostile enemies with larger populations and resources, whom it nevertheless defeated in three wars. However, Israel has also undertaken operations from which the United States has derived substantial benefit. In past years, Israel has frustrated numerous terrorist activities against US targets and provided information to be used in US intelligence activities or actions against terrorism.

.... [Section redacted by US Govt. for security reasons]...

Israel has also acted on the United States' behalf when direct US involvement would be politically impossible or detrimental to U.S. foreign policy. For instance, when the United States normalized relations with the People's Republic of China in 1978, the PRC insisted that the US diminish its arms sales to Taiwan. The United States ended direct sales to Taiwan, but Israel, with the encouragement of the United States, became the new supplier of US arms. More recently the media has been detailing Israel's covert role as a broker of US arms sales to Iran.

Given this extensive and intimate relationship between Israel and the United States, it should not be surprising that the Israeli and US Governments have entered into formal agreements for the exchange of intelligence information. Secretary Weinberger's affidavit admits that pursuant to these agreements a large quantity of intelligence information, much of it highly classified, is disclosed as a matter of policy to the Israelis. Secretary Weinberger insists however, that the information passed by Mr. Pollard to the Israelis exceeds the scope of the exchange agreements.

F. Criteria for Dissemination of Information to Israel

An inspection of the criteria the Secretary listed in gauging what information could be disseminated to the Israelis shows that, contrary to Secretary Weinberger's claims, the information Mr. Pollard passed to the Israelis does not undisputedly fall outside those criteria. Secretary Weinberger identifies six criteria used in making the determination whether to share the information.

...[A section approximately 4 pages double-spaced has been redacted at this point by the US Govt. The blanked out section begins on page 10 of the original document and the text is resumed midway into page 14. While the text it refers to has been blanked out, footnote number three [3] on page 11 was left in tact. It is included in the footnotes following this article. The text resumes on page 14 as follows]...

Secretary Weinberger repeatedly contends that the information given to the Israelis by Mr. Pollard has damaged US interests in the Middle East. While Mr. Pollard and his counsel lack access to information necessary to refute all of Secretary Weinberger's assertions, some of the assertions are contrary even to established viewpoints in the intelligence community. For instance, Secretary Weinberger insists that a stronger Israel upsets the balance of power in the Middle East and therefore makes armed conflict more likely. I the United States truly believed that, it would not provide Israel with the most sophisticated military equipment and generous foreign aid. Instead, one of the bulwarks of US policy in the Middle East is to ensure that Israel maintains a clear military superiority in the region. As stated in a classified report titled, "The Arab-Israel Military Balance," prepared by the US intelligence community, "the United States sells some of its best and most advanced equipment to Israel on a timely basis, occasionally even before some US forces receive it." Id.at 9. The unqualified support which the United States displays for Israel reflects in part a realization that Israel would not initiate a war simply because it thinks it has a military advantage over its enemies. To the contrary, with the knowledge of military superiority, Israel would not experience the insecurity which fuels war in the Middle East.

...[Another paragraph is redacted and blanked out of the document by the US Govt. here]...

Secretary Weinberger attempts to refute his own employees' analysis of the above-described political reality in the Middle East by pointing to the Tunis raid *[Justice4JP: the reference is to Israel's raid on PLO headquarters in Tunis] as an example of Israeli aggressiveness prompted by a clear military advantage over its enemies. Secretary Weinberger misses one key distinction. The raid on Tunisia was not directed at Tunisia, but was a surgical strike aimed at a terrorist organization. While relations with Tunisia may have been ruffled over the attack (though there was no rupture of ties), it is interesting that President Reagan, architect of US foreign policy, stated immediately after the raid that other nations have the right to strike at terrorists 'if they can pick out the people responsible." World News Digest, October 4, 1985.[4] In addition the strike was not a product of new-found intelligence data supplied by Mr. Pollard, but rather reflected an application of Israel's consistent policy of retaliating for terrorist actions against its nationals. Accordingly, the information which Mr. Pollard supplied undoubtedly furthered the attack, but did not induce it. Indeed, the information most likely minimized the loss of Israeli and Tunisian lives, which would be in the best interests of US policy, by permitting a more accurate attack against PLO headquarters.

G. Damage to Relations with Friendly Arab Countries

Secretary Weinberger's second contention is that US relations with friendly Arab countries have been damaged.

...[Another paragraph is redacted and blanked out of the document by the US Govt. here]...

The Israelis assuredly realize that disclosure of the extent of the information received from Mr. Pollard will jeopardize the advantage which the information gives them over their present or potential enemies, since it would spur the enemies to take effective countermeasures.

...[Another paragraph is redacted and blanked out of the document by the US Govt.here]...

A related concern of Secretary Weinberger's is that information acquired by Israel through Mr. Pollard's activities could be used against Arab countries in a manner which would damage US foreign policy. Secretary Weinberger again points to the raid against the PLO headquarters in Tunis as evidence of the uses to which the Israelis would put the information and the ensuing damage to US policy. Specifically, Secretary Weinberger contends that US relations with Tunisia have been injured because of the raid. Secretary Weinberger does not indicate, however, whether the damage, if any, which occurred to the bilateral relations was a result of the attack itself or of the United States' failure to condemn it immediately. Again assuming that the raid would have taken place regardless of Mr. Pollard's passing of information to the Israelis, Mr. Pollard may have minimized the damage to US -Tunisia relations by reducing the number of Tunisian fatalities.

Over eighteen months have elapsed since Mr. Pollard began providing information on Arab countries to the Israelis. During that time, Israel has not attacked one Arab country. Israel has had a long-standing policy which predates Mr. Pollard's involvement with them, of targeting terrorist bases located in Lebanon. If the information given by Mr. Pollard had altered the military balance, as Secretary Weinberger contends, Israel would have begun hostilities against Syria, in light of that country's provocative behavior in Lebanon.


Footnotes:

[1] The Weinberger affidavit must be recognized as not having been written by the Secretary of Defense. In the true spirit of overkill that characterized the Government's assessment damage in this case, the attempt to make more out of what is the real injury to the national security is demonstrated by this technique of having the Secretary sign the affidavit rather than the true author(s). In a pending espionage prosecution in the Eastern District of Virginia, in which the undersigned is also counsel, the damage assessments in that case were not signed by the Secretary of Defense. The point is noted here because this Court should not be bulldozed into not considering a challenge to the document just because it was signed by a cabinet minister...

[2] There is nothing in the damage assessment that speaks of damage to our national security in terms of our position vis-a-vis the Soviets. The first occasion where such a claim arises is in the Government's opposition to Mr. Pollard's recently denied Motion for Production of Evidence Favorable to the Accused. Since the allegation was made, and because of its incendiary nature, it is important to focus on it in order to point our that there is simply no basis in the evidence for it.

The only reference in the damage assessment to the Soviet issue regards the danger of a Soviet mole in Israeli intelligence. That issue is treated intra. Unless the Government is sandbagging everyone by bringing in such proof in "rebuttal," the record as it stands merely speculates, without any proof, that somehow our national security vis-a-vis Russia potentially has been damaged. To state this without more, is overkill and exploitive of the situation in which the Government holds every advantage and the defendant has no opportunity for rebuttal.

[3] Secretary Weinberger also laments the possibility that Mr. Pollard could have been a victim of a "false flag operation". A "false flag" is a situation where the offender is duped into believing that he is giving information to a perfectly benevolent recipient when in fact the ultimate recipient is the enemy. It is true that a "false flag" can operate in every espionage; however, it should also be factored into the question of punishment that there was no "false flag" here. Again we reiterate that the court should assess the actual damage, not what it could have done. All the indicia of the "flag" pointed squarely to Israel and nothing in Mr. Pollard's experience belied that. Thus, Mr. Pollard knew then-Colonel now-General Avi Sella to be an Israeli military hero who led the bombing raid on the Iraqi nuclear reactor site in 1981. While residing in New York, Sella's wife was nationally active in the Anti-Defamation League. In addition, Sella provided Mr. Pollard the entree to Yossi Yagur and Erit Erb, who became his first long-term handlers. More significantly, he met at length with Rafael Eitan, the ultimate controller of the operation, the man who "captured" Adolph Eichmann. Throughout the course of his operation, Mr. Pollard questioned these individuals at length to satisfy his curiosity, and to establish their bona fides. Even the best-trained agents could not have known the details or the events on which these individuals were quizzed. The specter of a "false flag" was, in reality, therefore, non-existent.

[4] When questioned by reporters on how the Israelis were certain that they were striking at PLO members rather than Tunisian civilians, President Reagan replied, "I have always had great faith in their intelligence." Id.


See Also:
• Part II: Pollard Particulars Relevant to Sentencing
• Part III: Extent and Value of Cooperation
• Part IV: Crime and Punishment - The Conclusion
• Rule 35 Motion for Reduction of Sentence

• Return to home page
• Return to Legal Texts page


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

UNITED STATES OF AMERICA
VS
JONATHAN J. POLLARD

Criminal No. 86-0207
Rule 35 Motion for Reduction of Sentence
Filed July 1, 1987


Justice4JP Introductory Notes

January 9, 2000

Legal Treachery that Doomed Pollard:

The primary responsibility of an attorney is to protect his client's constitutional rights, and especially his right to future appeals. Jonathan Pollard's first attorney Richard Hibey, astonishingly, failed to file a time-limited statement of intent to file a direct appeal. This failure - too gross to be a mere oversight - then prevented Jonathan Pollard from ever exercising his constitutional right to a direct appeal of his sentence.

What Hibey did file instead, was a Rule 35 motion to reduce sentence, the text of which follows these notes. While the Rule 35 motion was logical, factual and well-presented, it was not relevant. Such a document is generally filed when there is a clear indication from the sentencing judge to the defendant's attorney that a reduction of sentence would be considered. There was no such indication from Judge Robinson in this case.

Again, astonishingly, when the Rule 35 motion was denied by Judge Robinson, Hibey failed to appeal it.

What this means

First Hibey's failure to file a motion of intent to file a direct appeal within 10 days of Jonathan Pollard's sentencing, and then his failure to appeal the Rule 35 motion when it was denied, blocked Jonathan Pollard from any further appeals of his sentence.

Also, at no time did Hibey protest the fact that the sentencing judge had never advised Jonathan Pollard of his right to file a direct appeal, something which today is grounds for a "reversible error" (which could cause a sentence to be over-turned.)

While Hibey's fees were covertly paid by the Government of Israel, to this day it is not clear whose orders Hibey was following when he bumbled the case, making mistakes that even a junior law clerk would not make. What is clear is that they were not Jonathan Pollard's orders. Hibey's legal missteps are so blatant and so egregious that it is not reasonable to presume that they were simply accidental. This is especially so, when the combined weight of all of his "errors" forever blocked all of Pollard's chances of mounting a direct appeal of his sentence.

Nevertheless, Why This Document is Important Today

Richard Hibey, the author of this legal document and Jonathan Pollard's first attorney remains the only attorney who has seen the full classified record of the Pollard file. Even though he only saw parts of it for a few moments just before sentencing (i.e. the Caspar Weinberger memorandum to the sentencing judge) Hibey is able to state unequivocally that he has seen the full record and that the government has failed to show even one concrete example of any damage done by Pollard's espionage.

The complete text follows.


Memorandum of points and authorities in support of his (rule 35)
motion to reduce sentence of defendant Jonathan J. Pollard

I. Introduction

Defendant, Jonathan J. Pollard was sentenced on March 4, 1987 to life imprisonment for violation of the espionage laws. His wife, Ann Henderson-Pollard, was sentenced to concurrent five year sentences which are the subject of a separate motion to reduce.

The reasons for reducing Mr. Pollard's sentence are these:

  1. Notwithstanding the volume* and nature of the classified information given to the Israeli Government *[Justice4JP Note: See Facts Page - points #20 and #21.] the damage to the United States from his conduct was minimal.
  2. No due credit for Mr. Pollard's cooperation has been expressed by the the government; therefore its commitment to do so in aid of the court's sentencing was breached.
  3. The failure to recognize this cooperation through a sentence of less than life imprisonment may constitute a precedent in espionage law enforcement that might satisfy visceral reaction to the crime but will make it all the more difficult to obtain the full cooperation from suspects in the future cases prosecuted by the Justice Department.
  4. Current standards of sentencing suggest that the present sentence is excessive.

Mr. Pollard has created a perception of arrogance that one in his predicament can ill afford to convey. What is one man's arrogance may be another's naiveté regarding the realities which confront him. Such is Mr. Pollard's case.

Mr. Pollard's attitude toward his conduct and this case must be appraised in the light of three critical elements of his thinking about which the evidence is indisputable: his passionate Zionism; his unmitigated hatred of terrorism and the communist ideology which supports it; and his genuine and continuing belief in America.

Even to detail these feelings might be looked upon as further evidence of Mr. Pollard's arrogance through political testament and harangue[1]. This view is unjustified because the facts of this case have never suggested that his ideological agenda was anything other than what he has consistently, albeit stridently, represented throughout.

While this adds nothing endearing to the personality of the man, in the context of a sentencing in a case such as this, it should not be counted so heavily against him. In the final analysis, Mr. Pollard's wrong-doing is classically egregious and beyond acceptability, but never, by motive or intent, a heinous espionage born out of an arrogance that demands retribution.

II. Argument

  1. Damage

We have stated in one memorandum in aid of sentencing that the damage to the national security resulting from Mr. Pollard's conduct was minimal to the point of being almost non-existent. This contention is extraordinary (although the government has described it otherwise), but true nevertheless. The information here was passed, in violation of the law, to one of our closest allies. There is no evidence of its being or having been further compromised. In Secretary Weinberger's affidavit the damage to our national security was claimed in bureaucratic terms and no evidence was adduced in the record (public or sealed) that persons and/or systems have been compromised by virtue of Mr. Pollard's conduct.

This makes Secretary Weinberger's affidavits particularly shrill and inflammatory. In the first place, his principal affidavit was sealed in its entirety. Yet, Mr. Pollard's response thereto, citing liberally to it, is virtually free of censorship. Secondly, the Secretary's second affidavit, the one that describes Mr. Pollard's conduct as "treasonous" is, in its entirety, unclassified. This latter document adds nothing but rank hyperbole. After the sentencing, taking refuge in his classified affidavit, the Secretary claims that Mr. Pollard's attorneys deliberately misrepresented certain of his statements in this affidavit. See Reuters News Service article, dated March 5, 1987, attached hereto as Exhibit B. These kind of statements are a "forked tongue", representing nothing more than an effort to appeal to one reader or audience to the exclusion of another.[2]

Moreover others have begun to voice a perception that Secretary Weinberger has a penchant to exaggerate the damage resulting from acts of espionage. Most recently, Secretary Weinberger's claims of severe repercussions to the national security resulting from clandestine activities of the marines stationed at the U.S. Embassy in Moscow have been questioned. See Washington Post article, dated June 6, 1987, attached hereto as Exhibit G. As in Mr. Pollard's case, Mr. Weinberger speaks of damage before the full facts are known.[3]

It is, therefore, Mr. Pollard's contention that the nature and extent of any injury to the United States from his conduct has yet to be assessed accurately. The inquiry is a valid one: positing the most sensitive item of information that court can recall was given to the Israeli Government, how did it harm the national security? True, the Israelis were not supposed to have the information; but that can be said of the least sensitive of the information passed. Accordingly, the question must be pressed further in order to ascertain the severity of the offense. Nothing in Secretary Weinberger's affidavits even remotely suggests that with the passage of this most sensitive information, there was a loss of systems or personnel or setback of ongoing operations as a result of Mr. Pollard's conduct. Indeed this recognition is inherent in the decision of the government not to seek a life sentence.

  1. Cooperation

The way in which the government chose to advocate its position on damage to the national security presaged its barely perceptible statements regarding Mr. Pollard's cooperation in the government's investigation.

The government agreed to set forth in detail the nature, extent and value of Mr. Pollard's cooperation. On many times we received assurances that although a substantial (but not life) sentence would be sought, there would be a full statement regarding Mr. Pollard's cooperation. None was forthcoming. The government's pleadings contained fully two lines of reference to his cooperation and, at allocution, the government belittled the defendant's own efforts, made in good faith, to identify the areas in which he was helpful to the investigation, and contradicted his rendition of the value of his cooperation.

The irony of the government indicting Mr. Pollard's first Israeli contact on the basis of evidence he alone provided is all too bitter: the day before Mr. Pollard is sentenced, his testimony before the grand jury, prepared and elicited by the prosecutor, and the sole basis for a criminal charge, is credited as truthful as to each element of the crime of espionage and an Israeli officer is indicted. The next day, Pollard has no credibility at all; he is no longer of value to the government.

It may be said that this court would have sentenced Mr. Pollard to life even if the government had been more candid in its appraisal of his cooperation; but, certainly, the government's failure to honor its word to him on the critical question of his cooperation, certainly sealed his fate. There was no counterpoint to the perception of Mr. Pollard's arrogance. There was no verification of his good faith in this case. There was no context which the government alone could have supplied that would have allowed for a perspective that an initially-perceived arrogance was in truth an inaccurate picture of the man.

As a remedy for its failure to recognize the value of Mr. Pollard's cooperation, and consistent with its pledge under the plea agreement not to seek a life sentence for Mr. Pollard, the government should not oppose this motion for reduction.[4] Nevertheless, and perhaps not surprisingly, counsel has been informed that an opposition will be forthcoming.

The government undoubtedly will assert that Mr. Pollard's post-plea conduct, specifically his conversations with a reporter and his letter to the Jewish Advocate (albeit published without his approval), justifies its filing of an opposition. While Mr. Pollard's conversations with the press were ill-advised, it is interesting that the government took no action to stop them until after sentencing. Even though Mr. Pollard spoke to the press in November, 1986, resulting in disclosures which the government claimed came perilously close to revealing classified information, the government still permitted Mr. Pollard full access to reporters. Only after the court imposed a life sentence did the government exercise its powers to cut off all access by the press to Mr. Pollard and to begin monitoring and censoring his mail. Under the circumstances, these communications have been stopped and are no longer a factor militating in favor of a maximum sentence.

  1. Precedent

There should be concern about the fact that a cooperating defendant, for whom it agreed to request a substantial, but not life sentence, receives nevertheless, a life sentence. In the context of an opposition to the reduction of a sentence, it is a virtual certainty that the government will not own up to this concern. Under such circumstances, it is appropriate for this court to understand that the ramification of its sentence in this case is to chill the prospect of a suspect in another espionage case being willing to cooperate when he knows it will not affect his sentence at all.

This could have serious repercussions in cases far more serious than this one. For example, a delay in cooperation because the suspect has trouble crediting the government's representations could result in a loss of intelligence systems as well as the lives of intelligence agents. Of course, the government could say that it will simply rely on the ability of its prosecutors to persuade the next spy it uncovers that their word is good; but that is too facile. When any espionage is uncovered, time is of the essence and event the ablest prosecutor will not know how exquisite the time factor is.

Therefore, even if the government will want the maximum sentence to be upheld, this court may, nevertheless, see wisdom in a reduction in a case such as this where the defendant's cooperation has been complete and valuable to the United States.

  1. Excessiveness

One trait that the judicial system has striven to exhibit is consistency in sentences for similar crimes. Indeed, the court is required to take into account, when imposing sentence on a defendant, sentences dispensed in similar cases. 18 U.S.C. # 3553a states that a court "shall consider ...(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." In keeping faith with the principle of uniformity, the court should consider whether the sentence given Mr. Pollard far exceeds the terms set by other judges in other cases.

If Mr. Pollard had engaged in espionage for the Soviet the Union or an East Bloc country, a life sentence possibly would have comported with other decisions. In recent cases, John Walker, Thomas Cavanaugh and Ronald Pelton all received life sentences for passing, or attempting to pass sensitive material to the Soviets. See NY Times articles dated November 8, 1986, May 25, 1985, and December 17, 1986, attached hereto as Exhibits J, K, and L. Richard Miller* received two concurrent life terms for conspiring to pass information to the Soviets while an employee of the FBI. See NY Times times article, dated July 20, 1986, attached hereto as Exhibit M, and a judge sentenced Jerry Whitworth to 365 years for his infamous role in the Walker spy ring. See NY Times article dated August 29, 1986, attached hereto as Exhibit N.

*[Justice4JP Note: With the passage of time, it is a fact that in many other espionage cases the original sentence often has little to do with the actual time served before release. For example in the case of Richard Miller who was sentenced to 2 concurrent life terms, Miller did 6 years in prison and was released in 1994. While Justice4JP does not have up to date information on all cases, other examples follow where relevant.]

Yet, not even those acting to benefit the Soviets necessarily receive lengthy sentences. Two years ago, Samuel Loring Morison, one of Mr. Pollard's co-workers, was convicted of passing a highly classified satellite photo to Jane's Defense Weekly, a British publication. In spite of the testimony that the publication of the photo gave the Soviet Union a far greater knowledge of U.S. satellite capabilities, the judge sentenced, Mr. Morison to only two* years in prison. See NY Times article dated December 8, 1985, attached hereto as Exhibit O *[Justice4JP Note: In point of fact Morison, served only 3 months in prison and was then released.] In 1981 David Barnett [who is a free man today- Justice4JP] was sentenced to 18 years for passing information to the Soviets on U.S. intelligence operations, including the names of dozens of U.S. operatives. See NY Times article dated June 29, 1981, attached hereto as Exhibit P. William Holden Bell received a sentence of 8 years for his role in providing information on antitank missile and radar technology to a Polish agent. Id.; See NY Times article dated December 17, 1981, attached hereto as Exhibit Q. In 1984, a judge in Florida sentenced Ernst Forbrich to 15 years for purchasing U.S. military secrets with the intent of passing them to East Germany. See NY Times article dated August 4, 1984, attached hereto as Exhibit R. Svetlana Ogorodnikova, a Soviet émigré received 18 years in 1985 for conspiring with Richard Miller to deliver classified documents to the Soviet Union. See NY Times article dated July 16, 1985, attached hereto as Exhibit S.

In vivid contrast, persons acting on behalf of non-Soviet countries have received far lesser sentences. For example, Enseign Steven Baba was court-martialed for having sent documents relating to electronic warfare secrets and indices of code words to the South African Embassy. The court imposed a sentence of 8 years at hard labor, yet under a plea bargain the sentence was reduced to 2 years. . *[Justice4JP Note: Baba served only 5 months of his sentence and was then released.] See NY Times articles dated December 4, 1981 and December 18,1981 and January 12, 1982, attached hereto as Exhibits T, U, and V. Similarly Sharon Scranage gave her boyfriend, a Ghana national, information gained as a CIA employee relating to the names of CIA operatives in Ghana. Although this information could have resulted in the loss of lives, the court sentenced Ms.Scranage to 5 years. Shortly thereafter, the court reduced the sentence to 2 years. *[Justice4JP Note: Scranage served only 8 months of her 2 year sentence and was then released.] See NY Times article dated April 11, 1986, attached hereto as Exhibit X. In both cases, the nation receiving the information was not considered an ally of the United States. Indeed neither country even had particularly friendly relations with the United States. Nevertheless, the judges presumably viewed the fact that the information was not passed to the Soviet Union as a relevant factor in sentencing.

Viewed in the context of other cases, Mr. Pollard's sentence is excessive. Espionage on behalf of one of the United States' closest allies does not merit the maximum sentence, especially in light of Mr. Pollard's guilty plea and his cooperation and the implicit recognition by the government, in the form of its agreement not to seek a life term, that the damage to the national security was not as great as Secretary Weinberger would have the court believe.

III Conclusion

For the foregoing reasons, defendant Jonathan J. Pollard respectfully requests that his sentence be reduced.

Respectfully submitted
Richard A. Hibey
Attorney for the Defendant Jonathan J. Pollard

Dated: June 25, 1987


Footnotes:

  1. Never his own best witness, Mr. Pollard expressed his sentiments regarding the sentence in a private letter to a Boston physician. A Boston weekly, the Jewish Advocate, recently published the text of the letter, attached hereto as Exhibit A. Devoid of any expression of remorse, the contents of the letter reflect a bitterness not uncommon in cases where the maximum sentence has been imposed.
  2. Secretary Weinberger has long been on record as opposed to broader sharing of intelligence with Israel. See New York Times article, dated March 19, 1983, attached hereto as Exhibit C. For example, after Israel experienced enormous success in defeating the Syrian military forces during its invasion of Lebanon, it offered to share its military strategies with the U.S. as part of an overall intelligence-sharing agreement . Although Israel has over two dozen intelligence-sharing agreements with the United States, Secretary Weinberger demurred, fearing the long-term commitments of such an agreement. See New York Times article, dated February 10, 1983, attached hereto as Exhibit D; Richelson, The U.S. Intelligence Community 205 (1985), relevant portions of which are attached here as Exhibit E. Only after Congress exerted pressure on Secretary Weinberger did he offer a counter-proposal. See New York Times article, dated, March 13, 1983, attached hereto as Exhibit F. This undoubtedly accounts for his heavy-handed assessment of the security breaches in this case.
  3. In Secretary Weinberger's defense, it appears that others within the government are not immune form the urge to overstate the damage resulting from acts of espionage. A commentator comparing the claims of damage made by  prosecutors and Defense Department officials in various espionage cases noted that "the otherwise publicity-shy world of espionage, superlatives are everywhere." Shenon, Washington Talk: Cloak and Dagger And Exaggeration, NY Times, February 20, 1987, attached hereto as Exhibit H.
  4. Immediately after the court imposed sentence on Mr. Pollard, the U.S. attorney himself, in response to questions regarding the amount of time Mr. Pollard would actually serve, stated that Mr. Pollard will "never see the light of day." See Reuters article dated March 5, 1987, attached hereto as Exhibit I. Such statements indicate that the government will, in spite of the plea bargain, attempt to keep Mr. Pollard incarcerated for his entire life.

See Also:
• Part I: Damage to the United States
• Part II: Pollard Particulars Relevant to Sentencing
• Part III: Extent and Value of Cooperation
• Part IV: Crime and Punishment - The Conclusion

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