GUEST VOICE: Pollard’s release doesn’t erase 30 years of injustice

Irwin Cotler

The official announcement that Jonathan Pollard will be paroled as of Nov. 21, having served 30 years for transmitting classified American documents to the Israeli government, is a welcome development. The fact of his prospective release, however, must not be allowed to overshadow the injustices of his life sentence – and 30-year prison term – as set forth below.

First, Pollard’s sentence of life imprisonment was then – and remains today – unprecedented, excessive, grossly disproportionate and unfair, and amounts to a denial of equality before the law. No other American who has pleaded guilty to spying for a U.S. ally has ever been sentenced to life. In such cases, the usual sentence is no more than eight years, with actual time served averaging two to four years or less.

Second, beyond being unjust in itself, the sentence breached the plea bargain according to which prosecutors had agreed not to seek life imprisonment in return for Pollard’s guilty plea, his co-operation with authorities, and the waiving of his right to trial by jury. The plea also saved the government the problems of conducting a trial involving highly sensitive information, and at which Pollard might well have been acquitted of the more serious charges. Indeed, Judge Stephen F. Williams of the U.S. Court of Appeals for the D.C. Circuit later described this breach as a “complete and gross miscarriage of justice.”

Third, Pollard’s sentence was imposed as a result of the submission – after the plea bargain and again in violation of it  – of a prejudicial, ex parte affidavit to the sentencing judge by then-secretary of defence Caspar Weinberger. Pollard never saw the affidavit, nor was he able to challenge it. In his submission, Weinberger claimed that Pollard had compromised American national security, was guilty of “treason,” and should never be released. However, in a 2004 interview, Weinberger admitted that, in retrospect, the Pollard matter was “comparatively minor.”

Fourth, Pollard has repeatedly and misleadingly been accused of treason – by the media, as well as by the departments of Defence, State, and Justice – despite never having been charged with it.

Fifth, false accusations have likewise been made by U.S. government agencies that Pollard compromised intelligence operations in Eastern Europe and was consequently implicated in the deaths of American informants. Yet, these accusations were never part of his indictment, and no evidence for them has ever been adduced. In fact, the architect of these treasonable acts, and the source of the disinformation, was none other than senior CIA official Aldrich Ames, who pleaded guilty to them in 1994.

Sixth, the recent declassification of a 1987 CIA damage assessment concerning Pollard confirms, in the words of Weinberger’s assistant secretary of defence Lawrence Korb, that “Pollard did not divulge the most sensitive U.S. national security programs” and “provided intelligence only on the Soviet Union’s activities in the Middle East.” The document also reveals that, whereas the sentencing judge overturned the plea agreement because Pollard had spoken to the media in supposed violation of the agreement’s terms, the interview had in fact been authorized by the government.

Seventh, Pollard was deprived of his right to effective legal counsel, as his attorney neglected to file a notice of intent to appeal following the prejudicial sentencing hearing. Pollard was therefore precluded from appealing his life sentence.

Eighth, virtually everyone who held a senior government position and dealt with the ramifications of what Pollard did at the time now support his release. They include former secretary of state George Shultz, FBI director and subsequent CIA director William Webster, and chairman of the senate intelligence and house intelligence committees, David Durenberger, and Lee Hamilton.

Ultimately, it must be remembered that Pollard fully honoured the very plea agreement that the government violated; he fully co-operated with authorities; he has expressed remorse for his actions; he has been a model prisoner for 30 years; he is now aging and in deteriorating health; and most egregiously, he has repeatedly been falsely accused of a crime he did not commit – treason – and unjustly sentenced to life in prison for the crime he did commit.

As such, while Pollard’s release on parole this fall will end his long-standing wrongful imprisonment, it will not in itself rectify the litany of wrongs to which he has been subjected. In the interest of justice, the injustice of Pollard’s excessively unfair and severe treatment must be acknowledged and denounced. 

Irwin Cotler is the MP for Mount Royal, former minister of justice and attorney general of Canada, and emeritus professor of law at McGill University.