Replies

All those charts and things, I knew I shouldn’t have pinged you to a thread like this (but RCW wanted you here too, I’m sure). You turn up with facts!!

Everyone knows his sentence is out of proportion, and if he’d spyed for any other nation he’d be commenting on Fox news as we speak. What are facts in a discussion of this nature.

To preempt you, I’ll post some of the leftist drivel I’m sure you’ll soon bring to the thread next. Mark my words, freepers will see through Ted Olson.

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Gibson Dunn & Crutcher Lawyers
1050 Connecticut Ave. NW
Washington DC 20036-5306

December 23, 1992

Mr. Phil Baum
Mr. Jerome A. Chanes
Natl. Jewish Community Relations Advisory Council [NJCRAC]
443 Park Avenue South
New York, New York 10016-7322

Re: Jonathan J. Pollard

Dear Mr. Baum and Mr. Chanes:

I have been supplied with a copy of your memorandum of November 30, 1992 to NJCRAC member agencies concerning your meeting with me on October 21, 1992. 1 am very disappointed with your memorandum for several reasons:

I had understood that our meeting was to be an off-the-record briefing. I do not recall being informed that you intended to memorialize your perceptions of the meeting along with out-of-context quotations and to distribute those remarks to member agencies. Had I known of your intentions, I would have concentrated on presenting a complete summary of Jonathan Pollard's positions on the commutation issue rather than allowing the time to be used almost exclusively for responding to hostile questions. Because the meeting was focused entirely on points advanced by persons who have historically been opposed to supporting Jonathan Pollard, the meeting and thus your memorandum is quite one-sided.

You did not extend me the courtesy of sharing your summary with me in advance of its dissemination to give me an opportunity to correct any errors and misimpressions. Had you been interested in a fully accurate and fair portrayal of these issues, you surely would have done so. Distribution of this memorandum without any effort to discuss it with me and without even sending me a copy betrays your intention to advocate your point of view rather than to present an objective and balanced presentation of the issues. I had been cautioned in advance not to expect fair treatment and urged not to respond to your invitation. Unfortunately your memorandum and the manner in which it was prepared confirms what I was told about your lack of objectivity.

Your summary mischaracterizes Mr. Pollard's posture before the Supreme Court. While it is certainly true that the Supreme Court accepts few of the cases submitted to it, Mr. Pollard's petition presented important and compelling legal questions, which your memorandum does not discuss. And, while it is also true that this Court has not been sympathetic recently to collateral attacks on sentences resulting from plea bargains, there was a real possibility that if the Court had taken the case, it would have agreed with Mr. Pollard that the sentencing judge's actions should have been scrutinized under a more exacting standard. Had there been such a review, there was a substantial likelihood that Mr. Pollard's sentence could well have been overturned. By focusing exclusively on the procedural posture of the case, you overlooked the more important substantive legal issues, i.e., the fact that Mr. Pollard's disproportionate sentence was the direct result of the Government's violation of its plea bargain with him.

1 did not state that there would have to be unanimity among Jewish organizations for Mr. Pollard's commutation application to be successful. I simply stated the obvious fact that there are strong reasons favoring a commutation of Mr. Pollard's sentence and that we were anxious, on his behalf, to receive the support of as many individuals and organizations as possible. However, the unwillingness of some organizations to support a humanitarian act or commutation by the President certainly can undermine Mr. Pollard's chances of success.

On the question of anti-Semitism, you correctly stated only a segment of my remarks and did not capture the gist of my point. I acknowledged that anti-Semitism could not be established in this case by clear, compelling and objective evidence. It seldom can. But I added that there are many in Government, who do not wish their identities to be revealed, who do believe that the Government's treatment of Jonathan Pollard was affected by anti-Semitism.

I also emphasized that Jonathan Pollard's actions, however misguided they may have been, were motivated by a desire to alert the people of Israel to the actions of nations sworn to destroy it. I stated my conviction that all individuals who care about human rights should be sensitive and concerned over excessive punishment of someone who had acted to save the lives of an historically persecuted people, Your summary ignores this point.

With respect to solitary confinement, I stated that it is not necessary for Mr. Pollard to he in solitary confinement in the nation's most closely guarded prison. However, if he is going to be held in that institution, it is necessary that he be protected from others who would harm him.

Your reference to the government of Israel is confusing because it was wrenched from its context. I stated that there were a variety of reasons, after the fact, why the Government of Israel may not have wished to associate itself with Mr. Pollard's conduct. However, the fact is that Mr. Pollard was transmitting information to persons whom he had every reason to believe were fully authorized representatives of the Government of Israel. And the information he supplied was, indeed, transmitted to Israel. Certainly the Government of Israel should, and in fact has, come forward to aid Mr. Pollard's effort to seek a commutation of his sentence. We would hope that you and the NJCRAC member agencies would feel as sympathetic as Israel's last two prime ministers.

With respect to the level and nature of advocacy on behalf of Mr. Pollard, I simply acknowledged that it was entirely possible that some supporters of Mr. Pollard may have over-pleaded their case. I do not know this to be true, but stated that I understood how that could happen given the growing number of people who support his cause, most of whom are not subject to our control. However, I emphasized that the indisputable facts of Mr. Pollard's situation warranted the relief that we were seeking and that any exaggeration or hyperbole that may have occurred had to do with peripheral issues and could not distract from the central point that justice requires that Mr. Pollard be released from prison.

With respect to the issue of ex parte communication with Judge Robinson, I believe that I said that I did not know whether there had been any ex parte communication with Judge Robinson, but that Judge Robinson had categorically denied such an allegation and that, absent clear evidence of such conduct, there was no point in focusing on that subject. It was simply distracting from other considerably more compelling issues. There is no point to continue in discussing this issue. It is legally and substantively irrelevant and I do not know why it is so important to you.

As to the question of Mr. Pollard's remorse, I pointed out that Mr. Pollard's 60 Minutes statement was many years ago and had been superseded by many explicit statements by him of remorse. I also said that his statement on 60 Minutes in no way excuses the Government's response to it: the deliberate violation of its plea agreement with Mr. Pollard. Your concern with ill-conceived statements by Mr. Pollard several years ago is another red herring. Mr. Pollard has acknowledged that his conduct was wrong and asks, not that he be forgiven, but that his punishment be brought to an end. Dwelling on statements he made six years ago simply avoids today's issues.

The Government has recently taken the position that parole may be considered in 1995. But the essential point is that the law enforcement and intelligence agency officials who will be given the opportunity to express themselves on the subject have indicated that they will oppose parole. The experts with whom we have consulted agree that parole is a virtual impossibility under these circumstances. The emphasis on the possibility of parole avoids addressing the circumstances and fairness of Mr. Pollard's incarceration. The fact is that he has been punished enough now.

Your memorandum overlooks the massive evidence of injustice and unfairness in the treatment of Mr. Pollard and the fact that his sentence is utterly out of scale with that imposed on any other individuals who gave information to an ally in order to save lives. I am enclosing the memorandum we filed on December 11 in support of Mr. Pollard's commutation application.

As a matter of fundamental fairness, you should circulate this letter and the enclosed memorandum to the member agencies to whom you circulated your November 30 memorandum.

very truly yours,
Theodore B. Olson

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Pollard Has Been Punished Enough

March 8, 1994 - Theodore Olson, Esq. - The Wall St. Journal

It is plain than columnist Al Hunt and the anti-Pollard faction within the Clinton administration for whom he is giving voice do not like Jonathan Pollard (“President Clinton, Don’t Free the Traitor Pollard, February 24). But his rationale for opposing clemency is mostly misinformation and ignorance, and his conclusion implicitly concedes the shallowness of his convictions.

As Mr. Pollard’s attorney, I offer these counterbalancing facts:

First, the matter of motives and money. Mr. Hunt’s carefully chosen litany of phrases such as “big bucks,” “well-paid” and “well-heeled” produces a profoundly false impression. As Mr. Hunt knows, Mr. Pollard sought out the Israelis and volunteered to give, not sell, information to Israel about nuclear, chemical and biological weapons under construction by Iraq and others for use against Israel. Six months down the line, Pollard was persuaded to accept paltry sums - pocket change compared with what Washington journalists routinely receive for weekend television appearances. Intelligence services know that it is impossible to control idealists - and it is standard procedure to corrupt them with money. Mr. Pollard was wrong to acquiesce, but everyone who has studied the record objectively knows that he acted as he did because he could not stand the implications of silence in the face of another Holocaust, not for money.

Second, Mr. Hunt repeatedly uses the term “traitor.” That word describes one who commits treason, the only crime considered so egregious that is mentioned in our Constitution. It is defined by law as committing war against the U.S. or aiding its enemies. It is punishable by death. Mr. Pollard did not commit, nor was he charged with, treason. Even the government has admitted that is use of the word “treason” and “traitor” to describe Mr. Pollard was wrong and “regrettable.” The court that reviewed Mr. Pollard’s case, whose opinion Mr. Hunt quotes, said that the “traitor” could justifiably be called “rank hyperbole.”

Third, Mr. Hunt’s comparison of Mr. Pollard to the Aldrich Ames case is appalling. Mr. Ames allegedly aided the Soviet Union when they were implacable enemies of the U.S.: Mr. Pollard helped one of our closest allies. Mr. Ames is said to have betrayed American agents: Mr. Pollard told Israel about instruments of mass destruction against Jews. Mr. Ames purportedly took millions of dollars and was motivated by greed: Mr. Pollard gave defensive information to save a people that had been nearly exterminated 50 years ago. What can Mr. Hunt be thinking?

Fourth, Mr. Hunt has mischaracterized the court decision regarding the government’s violation of the Pollard plea bargain. Mr. Pollard’s appeal was rejected as untimely, not because it was lacking in merit. All three judges who considered the appeal expressed considerable skepticism concerning the government’s conduct. One of the three went so far as to call Mr. Pollard’s treatment “a fundamental miscarriage of justice.”

The fact is that the government blatantly betrayed Mr. Pollard and its written contract with him. It made three promises, and broke them all. It agreed to represent to the sentencing judge that Mr. Pollard’s cooperation had been of “considerable value” to “enforcement of the espionage laws,” but did precisely the opposite, denigrating the value and motivation for that compensation - listing it among factors “compelling a substantial sentence.” It promised to limit its sentencing argumentation to the “facts and circumstances” of Mr. Pollard’s offense, but instead heaped savage vituperation on his motives on his motives, character and “arrogance.” Finally, it agreed not to seek a sentence of life in prison, but obtained exactly such a sentence by, among other things, demanding a sentence commensurate with the crime of treason.

Fifth, Mr. Hunt rejects as “bogus and irrelevant” the assertion that Mr. Pollard’s sentence was excessive. He could not be more wrong. Mr. Pollard has served more than eight years, mostly in solitary confinement in the nation’s harshest prison. No one who gave defense information to an ally has ever been punished so severely. The government did not even charge him with harming or having reason to know that his actions would harm the U.S. Once again, Mr. Hunt has outpaces Mr. Pollard’s prosecutors by pressing to maintain a level of punishment that the prosecutors promised not to seek.

Sixth, it is curious that Mr. Hunt thinks that the information Mr. Pollard gave away “was so sensitive that officials still insist they can’t provide specifics.” What officials? The Office of Naval Intelligence has said that much of Mr. Pollard’s information “was declassified during the Gulf War.” Mr. Pollard’s chief prosecutor has urged publicly that it all be declassified.

Finally, after all of Mr. Hunt’s rhetoric, his main grievance seems to be that Israel has failed to “come clean and acknowledge what a despicable act Pollard performed.” If it did so, he concludes, then “clemency [would] be in order.” This is an amazing conclusion because Mr. Pollard himself has admitted that what he did was wrong and has expressed great remorse for his actions. And two successive Israeli prime ministers have put in writing formal requests for mercy - not forgiveness - for the Pollard affair. The significance of these extraordinary official requests cannot have been lost on President Clinton - who, incidentally, may not be anxious to acknowledge publicly that the U.S. has spied on Israel. What more does Mr. Hunt want? Some sort of Chinese Communist public act of self-abasement?

There is more, but too little space to say it all. Defense Secretary-nominee Bobby Inman has publicly admitted that he cut off Israel from promised defensive information as retaliation for Israel’s destruction of Iraq’s nuclear reactors. (Maybe Mr. Hunt can tell us how many America soldiers would have died in the Persian Gulf had Israel not taken that action.) Mr. Pollard stepped into the breach and opened the spigot that Mr. Inman had closed. He had no right to do so, but voices as diverse as Cardinal Law, Nobel laureate Elie Wiesel, Benjamin Hooks, Father Drinan, Sen. Carol Mosely-Braun, Pat Robertson, dozens of Members of Congress, the city councils of New York, Los Angeles and Chicago, and two Israeli prime ministers have pleaded for an end to his punishment. Apparently many officials at State, Justice and the White House now agree.

The fundamental issue is when we can stop punishing a man who broke the law to expose a massive, malignant and malicious arms buildup so that a beleaguered people could defend themselves from weapons of terror and mass destruction. It might take some courage from President Clinton to do the right thing, but Mr. Pollard has been punished enough.

Theodore B. Olson is the former lead attorney for Jonathan Pollard.

Name	Country Spied For	Sentence	Time Served Before Release^*
James Wood	Soviet Union	2 years
Sahag Dedyan	Soviet Union	3 years
Randy Jeffries	Soviet Union	3-9 years
Amarylis Santos	Cuba	3½ years
Joseph Santos	Cuba	4 years
Mariano Faget	Cuba	5 years
Brian Horton	Soviet Union	6 years
Alejandro Alonso	Cuba	7 years
William Bell	Poland	8 years
Alfred Zoho	East Germany	8 years
Nikolay Ogarodnikova	Soviet Union	8 years
Francis X. Pizzo	Soviet Union	10 years
Daniel Richardson	Soviet Union	10 years
Ernst Forbich	East Germany	15 years
William Whalen	Soviet Union	15 years
Edwin Moore	Soviet Union	15 years
Troung Dinh Ung	North Vietnam	15 years
Ronald Humphrey	North Vietnam	15 years
Kurt Alan Stand	East Germany	17½ years
Robert Lipka	Soviet Union	18 years
David Barnett	Soviet Union	18 years
Svetlana Ogarodnikova	Soviet Union	18 years
Albert Sombolay	Iraq & Jordan	19 years
Richard Miller	Soviet Union	20 years	6 years
Theresa Maria Squillacote	East Germany	21.8 years
Sarkis Paskallan	Soviet Union	22 years
Harold Nicholson	Soviet Union	23 years
David Boone	Soviet Union	24 years
Ana Belen Montes	Cuba	25 years
Clayton Lonetree	Soviet Union	25 years	9 years
Michael Walker	Soviet Union	25 years	15 years
Bruce Ott	Soviet Union	25 years
Kelly Warren	Hungary & Czechoslovakia	25 years
Earl Pitts	Soviet Union	27 years
H.W. Boachanhaupi	Soviet Union	30 years
Roderick Ramsay	Hungary & Czechoslovakia	36 years
James Hall	Soviet Union & East Germany	40 years
Christopher Boyce	Soviet Union	40 years
William Kampiles	Soviet Union	40 years	19 years
Veldik Enger	Soviet Union	50 years
R.P. Charnyayev	Soviet Union	50 years
Marian Zacharski	Poland	Life	4 years
Aldrich Ames	Soviet Union	Life
Robert Hanssen	Soviet Union	Life

Table II: American Enemies

Aldrich Ames: A Case In Point