With President Obama's call for a "pause" in the floundering if not failed Israeli-Palestinian peace negotiations, the U.S. gambit to use the promise of Jonathan Pollard's release as an incentive for talks has arguably now ended. The injection of Pollard's release -- the former U.S. naval intelligence analyst sentenced to life imprisonment in 1987 for passing secret documents to Israel -- as a bargaining chip should not have happened anyway and here is why.
Proponents of the peace process -- Democrat and Republican alike, as well as liberal and conservative pundits -- described the use of Pollard as a bargaining chip as lamentable, if not shameful. Indeed, President Obama should commute Pollard's sentence to time served as a matter of fundamental justice, rather than as quid pro quo.
First, Pollard's sentence of life imprisonment was then -- and remains today -- unprecedented, excessive, grossly disproportionate, unfair and unjust, 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 cooperation 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 where 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, the 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 Defense 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 not only been excessively punished for the crime he did commit, but has been punished for a crime he did not commit, nor was ever charged with: namely, treason. Long after the plea agreement, sources in the CIA, as well as the Departments of Defense, State, and Justice, maintained that he was guilty of treason, a misleading claim often repeated in the media at times coincident with Presidential reviews.
Fifth, false accusations by U.S. government agencies that Pollard compromised intelligence operations in Eastern Europe -- and was consequently implicated in the deaths of American informants -- were never part of the Pollard indictment, and no evidence for them has ever been adduced. Indeed, the architect of these treasonable acts, and the source of the disinformation, was none other than senior CIA official Aldrich Ames., who pleaded guilty in 1994.
Sixth, the recent declassification of a 1987 CIA damage assessment concerning Pollard confirms, in the words of Weinberger's Assistant Secretary of Defense 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, as Governor Bill Richardson recently wrote to President Obama, "virtually everyone who was in a high position of government -- 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, Chairman of the Senate Intelligence David Durenberger, and Chairman of House Intelligence Lee Hamilton." Senator Durenberger has expressed his "surprise at the sentence given Jonathan Pollard compared to others" and argued that "the harshness of [Pollard's] sentence ... was uncalled for."
Finally, it must be remembered that Pollard fully honored the very plea agreement that the government violated; he fully cooperated with authorities; he has expressed remorse for his actions; he has been a model prisoner for the past 29 years; he is now aging and in deteriorating health; and, over the years, he has been falsely accused of a crime he did not commit -- treason -- and unjustly sentenced to life in prison for the crime he did commit.
In the words of Lawrence Korb, "We believe that commuting Pollard's sentence to time served is the right and compassionate thing to do. We believe that his continued incarceration constitutes a travesty of justice and a stain on the American system of justice."
It is precisely for standing injustices like this, where the justice system has failed and cannot provide relief, where each new day in jail is a case of wrongful imprisonment, that the U.S. Constitution has vested in the President the power of executive clemency. In the case of Jonathan Pollard, the President should exercise this power not as a tactical manoeuver in Middle East peace negotiations, but as a matter of fidelity to the rule of law, the pursuit of justice, and simple humanity.
Irwin Cotler is a Member of the Canadian Parliament, emeritus Professor of Law at McGill University, and the former Minister of Justice and Attorney General of Canada.
Alan Dershowitz is the Felix Frankfurter Professor of Law at Harvard Law School, and a constitutional and criminal law scholar who consulted with Pollard's defense lawyers in the 1980s and 1990s. His autobiography, Taking the Stand, was recently published.