Pardon Paradox

All the characters were in place. The topic was right. It was the story of a Bush, a Caspar and a pardon. But as I read the page one article, I quickly realized that something was missing. The roles had been reversed. Jonathan J. Pollard was still in jail.

Pollard, you may wonder. Is he one of the other Iran-Contra hoods whom Bush let off the hook? Sorry. My take on the whole pardon thing is a bit different than the others that have graced this page in the last two weeks. I'm less concerned about guys like Lawrence Walsh and Robert MacFarlane than about a Jewish man named Pollard marking time in a federal penitentiary. Since Casper W. Weinberger '38 helped secure a term of life imprisonment for Pollard, only Bush could have ended his excessive punishment by granting Pollard a pardon. But Bush let Weinberger go instead. The president lamely chose the wrong guy.

Jonathan Pollard was arrested in 1985 and charged by the U.S. government with spying for Israel. Hoping to receive a lesser sentence and to avoid a media trial that would have involved classified material, Pollard agreed to a plea bargain. He received a promise that, in exchange, the court would impose a sentence of "a substantial period of incarceration and a monetary fine"--language that legal experts interpreted to mean a sentence less than life imprisonment.

However, in March 1987, on the day of sentencing, then-Secretary of Defense Weinberger submitted an affidavit to the court stating that "It is difficult for me, even in the so-called year of the spy, to conceive a greater harm to national security than that caused by [Pollard]." In discussions with reporters, Weinberger had also said that Pollard "deserved to be hanged." Pollard did, in fact, receive the maximum sentence of life imprisonment--the decision to which Weinberger was clearly alluding in his sworn statement. Indeed, Pollard's lawyers later argued that Weinberger violated the terms of the plea bargain by implicitly calling for the harshest possible sentence.

Certainly Pollard had commited crimes and deserved to serve time in jail. But life? As Professor of Law Alan M. Dershowitz writes in Chutzpah, the penalty of life imprisonment for acts of espionage is "rarely imposed even on those who spy for our enemies and never imposed on those who spy for our friends." Dershowitz points out that, at the time of Pollard's conviction, "the average prison sentence imposed on a defendant convicted of spying for a U.S. ally, like Israel, was less than five years."

Yet Pollard was singled out and hit with the largest prison term ever given an American spying for a U.S. ally. In addition, Pollard's wife, Anne--who has since divorced the jailed spy--faced two concurrent five-year sentences for being an accessory after the fact. She was released after spending more than three years in prison--more time, says Dershowitz, than any American ever spent in jail for a comparable crime.

So why the iron fist? Could Pollard really have been U.S. national enemy #1? Soviet, Iraqi or Cuban spies did not represent "a greater harm to national security"--the accusation Weinberger leveled at Pollard? After all, it's no secret that all nations--even allies--spy on one another. In addition, the U.S. and Israel had already signed two intelligence exchange agreements to share information collected in their respective spy networks. Pollard relayed to the Israelis information regarding Iraq, Syria and the PLO in Tunis--material necessary for Israel's survival and not intended to harm the U.S. That doesn't vindicate Pollard's actions, but it should keep them in perspective.

Sources close to the case later learned that the sentencing judge, Aubrey Robinson, was told that Pollard had shared with Israel information regarding U.S. satellite monitoring of joint Israeli-South African missile tests. Robinson, who is Black, told his associates that he was extremely angry that Pollard was in any way involved with issues relating to South Africa's apartheid regime and took that matter into account when sentencing him.

From his jail cell, however, Pollard denied ever sharing information about South Africa, and his lawyers confirmed that the prosecution never presented any information to that effect. It was widely suspected that someone in the government, aware of Robinson's antipathy to the South African regime, provided the judge with false information to ensure a harsh sentencing for Pollard. Perhaps Weinberger himself did not whisper into Robinson's ear, but he certainly went out of his way to make sure Pollard received excessive punishment.

Many say Weinberger, whose surname is more recognizably Jewish than Pollard's, singled out Pollard because of his own religious background. In his book, Dershowitz quotes a prominent Washington lawyer close to Weinberger who said that the former Defense Secretary felt "burdened by his name and his grandfather's religion" and that, in his dealings with the Pollard case, Weinberger "leaned over backwards to show that there is absolutely nothing Jewish about him."

Those involved with the Pollard affair had suspicions that Bush, in a bid to woo Jewish voters, would pardon the spy toward the end of the presidential campaign. But, as Secretary of State-turned Chief of Staff James Baker put it so bluntly in a White House meeting, Jews were not among the GOP's top concerns on Election Day. (Quite frankly, American Jews--more than 80% of whom voted for Bill Clinton--did not want four more years of Bush and his Israel-squeezing sidekick, anyway.) Bush remained firm and instead pardoned a man who helped to orchestrate Pollard's unduly harsh sentence.

Once in office, Clinton, as a gesture of goodwill to the Jewish community in which he enjoys such wide support, should issue a pardon on behalf of Jonathan Pollard. Bush intervened to assist Weinberger--a man who called for undue harshness against Pollard. Clinton should turn around and pardon Pollard--a target of unfair treatment at the hands of a "patriot" who wasn't so clean himself.