Justice Rubinstein: U.S. should free convicted spy Pollard

http://www.haaretz.com/ ^ | Jack

[BeHoldAPaleHorse]

Ah.

So, in addition to defending morally indefensible acts by his co-tribalists, he also feels free to lie to those who aren't his co-tribalists.

In short, he shows the high moral standards of Communists and radical Islamists.

[bvw]

Oh I'm so sorry, so sorry ... you are wrong. Ted Olsen, whose wife was Freeper BKO, explains it thusly (see SJackson's 117):

2. Disproportionality of sentence

Mr. Pollard's sentence of life in prison is grossly disproportionate to punishments in comparable cases. Your wholly inaccurate and distorted rejection of this fact ignores both the facts and fundamental principles of our criminal justice system.

You assert that "comparisons between Pollard's sentence and sentences meted out to others . . . are inappropriate," and that such an analysis of the proportionality of Mr. Pollard's sentence is improper as a jurisprudential matter. That, of course, is nonsense It is a fundamental principle of justice and jurisprudence that the law should treat similarly situated individuals similarly and that punishments, insofar as possible, should be relatively equal and proportionate. The fact that Mr. Pollard's sentence is completely out of scale with those imposed for comparable offenses is a highly salient consideration in his efforts to seek a commutation of his sentence.

Moreover, the Supreme court of the United States has held as a matter of constitutional "principle that a criminal sentence must be proportional to the crime for which the defendant has been convicted-" Solem V. Helm, 463 U.S. 277, 290 (1983) (emphasis added) . The Court has struck down as unconstitutional punishments that are "significantly disproportionate to [the] crime," id. at 303, based on a comparison "with sentences imposed on other criminals" Id. At 292; see also Harmelin V. Michigan, 111 S. Ct. 2680, 2702-05 (1991) (Kennedy, J., concurring) (reiterating that the constitution forbids "extreme sentences that are 'grossly disproportionate' to the crime") - It is well recognized that disproportionality in sentencing when compared to others convicted of similar crimes is "fundamentally unfair," and accordingly, it "has also been a fundamental part of . . . the clemency philosophy." Kobil, The Quality of Mercy Strained: Wrestling the Pardoning Power from the King, 69 Tex. L. R. S69, 627 (1991).*

[*NOTE: For example: President Carter commuted the 20 year sentence of Watergate conspirator G. Gordon Liddy after 4 years and 3 months because Liddy had served much more time than the other Watergate participants. Id. The reason given by the White House Counsel was that "[it] was a clear case of unfair disparity." Id. (citations omitted).]

You also argue that Mr. Pollard's sentence was not disproportionate. But that is clearly incorrect. As thoroughly documented in Mr. Pollard's commutation application, his sentence was manifestly inconsistent with the punishment historically imposed for disclosing intelligence information to an ally of the United States. Indeed, the more than seven-year period that Mr. Pollard has already served is much closer to the typical sentence for comparable offenses. The only other life sentences imposed for espionage in the United States of which we are aware -- including each of the instances cited in your memorandum -- involved individuals who spied for the Soviet Union (or Eastern block countries that were under its control) during the Cold War. We believe that Mr. Pollard is the only person in the history of our Nation to receive a life sentence for giving information to an ally.

3. The Pertinence of the Fact that Mr. Pollard Spied for a Close Ally

Your memorandum asserts that it is irrelevant that Mr. Pollard provided intelligence information to Israel, one of the United States closest allies, as opposed to a country that is hostile to the United States. That assertion is legally incorrect and morally perplexing. While it may be a crime to disclose any classified information to anyone, both the law and society recognize the difference between efforts to harm the United States by giving information to its enemies and supplying data to an ally to help save the lives of victims of aggression.

You contend that "as a legal matter, the law on espionage does not distinguish between allies and enemies. . . ." But the law, including the Constitution of the United States most certainly does make such a distinction. The most serious espionage crime is treason, which, unlike Mr. Pollard's offense, is punishable by death, and is defined explicitly in the Constitution as consisting "only in levying war against [the United States), or in adhering to their Enemies [or] giving them Aid and Comfort." (emphasis added) . The statutes on espionage also recognize that providing information to an enemy is different in kind from and more reprehensible than supplying information to a country that is an ally of the United States, explicitly singling out the former for special treatment. Compare 18 U.S.C. 794(b) and 794(a); 18 U.S.C. 2382. The law distinguishes between those whose conduct occurred with reason to believe it may harm the United States. Mr. Pollard was not charged with that offense.

Moreover, the vastly harsher sentences imposed on individuals who have committed espionage against the United States an behalf of hostile nations demonstrate the obvious and fundamental principle that spying for an enemy is a far more egregious offense that deserves more severe punishment than providing intelligence data to an ally. As discussed above, life sentence have historically been reserved exclusively for individuals who have spied for countries that are hostile to the United States, while persons who, like Mr. Pollard, assisted allies have been subjected to far less severe punishments that more closely approximate the time that Mr. Pollard has already served in prison.

Your memorandum also misleadingly suggests that Mr. Pollard's reliance on the hostile nation/ally dichotomy is an attempt by him to excuse or justify his conduct. But that is not Mr. Pollard's point at all. Mr. Pollard acknowledges that he violated an important law of the United States. He pleaded guilty to that offense and agreed to cooperate fully with the government's investigation of his conduct. He has repeatedly expressed regret and remorse for his conduct and for any and all harm that his offense may have caused. Mr. Pollard is not arguing that his unlawful conduct in justified because he was motivated only by a desire to save lives.

But those who ask for an humanitarian commutation of Mr. Pollard's sentence to a severe punishment equivalent to the punishment already imposed are surely entitled to emphasize that Mr. Pollard's actions, admittedly wrong, was inspired by the desire to protect against violent aggression, to prevent a holocaust and to allow the people of Israel to defend themselves. This is a legitimate and important basis for the sentence commutation being sought from President Clinton.

4. Conditions of Incarceration

The fact that Mr. Pollard has been in solitary confinement for several years is not a "myth." And it is not a "myth" that Mr. Pollard has been incarcerated in the nation's harshest maximum security prison. Mr. Pollard did not ask to be placed in Marion prison -- where security measures are necessary to protect him from anti-Semitic prison gangs. Moreover, NJCRAC should understand that it is exceedingly difficult for Mr. Pollard to chronicle his specific, day-to-day prison experiences without exposing himself to repercussions. It should be obvious to anyone that solitary confinement in a prison containing the most violent and vicious criminals in the nation is not a circumstance that should be ignored or labeled as a "myth."

[bvw]

I should call myself "cicero's son's DAD", that is a tough male firgure in his life whose duty is to try to knock some sense into his thick skull.

Let me ask you, PHAPH, which "anti-semitic prison gang" do you palsy-palsy with?

[BeHoldAPaleHorse]

First, Teddy Olsen was Pollard's paid mouthpiece. I expect him to zealously argue his case--but I don't take Olsen's "facts" as gospel solely within the context of the pleading, as Olsen would wish.

Olsen completely ignores two key factors in Pollard's sentence: (a) the large volume and high classification level of the material in question (the level of Pollard's "take" put him into the Walker/Ames/Hannsen category), and (b) his refusal to assist in damage assessment.

BTW, in citing G. Gordon Liddy's commutation...kindly note that the G-Man was sentenced to 20 for not coming clean and giving a complete accounting of his misdeeds. When asked, Liddy candidly states that he didn't deserve the commutation he received.

"Let me ask you, PHAPH, which "anti-semitic prison gang" do you palsy-palsy with?"

And there you have it. Left without factual argument, bvw is forced to falsely claim that I associate with anti-semites.

You'd better hope that God was just kidding about that "Thou shalt not bear false witness against thy neighbor" thingie.

[bvw]

Hansen, Ames, the Walker family ... bad people acting with obviously evil motives to place us all at further risk. Not so Pollard. Pollard acted on behalf of our interest as he understood it, and not to place us at risk but to move us away from it. Iraq, until we liberated it, and Iran then and today are and were our enemies. Pollard's acts were against our enemies and on behalf of their perceived enemy, our ally, Israel.

[BeHoldAPaleHorse]

"Hansen, Ames, the Walker family ... bad people acting with obviously evil motives to place us all at further risk."

Same could be said of the Rosenbergs--oh, wait, they're your co-tribalists, and must be defended at all costs.

"Not so Pollard. Pollard acted on behalf of our interest as he understood it, and not to place us at risk but to move us away from it."

1. Pollard's job was to support execution of national policy, not to make it behind everyone else's back.

2. Have you ever heard the term "false flag recruitment?"

3. Pollard passed enormous amounts of intelligence that had absolutely nothing to do with Israel, Iraq, or Iran.

4. He has consistently refused to identify which documents he sent to Israel, precisely because admitting to everything he did would undermine his claim that he was a selfless patriot acting only in the US' best interests.

[bvw]

The same could NOT be said of the Rosenbergs. Julius worked on behalf of our most important ally in WWII -- the Soviet Union. It was that ALLY who took the brunt of Germany's attack, it was the Soviets who ground down the German war machine and who suffered losses far beyond any other of our allies. By helping the Soviet's efforts in WWII Julius Rosenberg was no more evil than any US merchant mariner who served on the icy and dangerous runs to Murmansk.

[BeHoldAPaleHorse]

"The same could NOT be said of the Rosenbergs."

He was spying for the USSR prior to World War II. Indeed, he worked with the USSR while they were aiding and abetting Nazi Germany.

"Julius worked on behalf of our most important ally in WWII -- the Soviet Union."

Our most important ally--and most loyal--was the United Kingdom. The USSR was, at best, a co-belligerent, but they did not act in any way, shape, or form as a real ally. Indeed, Stalin routinely used the threat of negotiating a separate peace with Hitler to force concessions from the United States. They even interned US aviators who landed in the Soviet Far East.

"By helping the Soviet's efforts in WWII Julius Rosenberg was no more evil than any US merchant mariner who served on the icy and dangerous runs to Murmansk."

Rosenberg did NOT help the USSR in World War II--he helped them to be able to fight World War III against the US.