A group of leading American constitutional and criminal law scholars and practitioners wrote to US President Obama to urge that he commute American-Israeli spy Jonathan Pollard’s sentence to time served.
The letter, dated June 20, was signed by seven professors from Harvard Law School, Obama’s alma mater: Alan M. Dershowitz, Charles J. Ogletree, Jr., Philip B. Heymann, Mary Ann Glendon, Gabriella Blum, Frank I. Michelman and Irwin Cotler (a Canadian law professor emeritus, former justice minister and attorney general of Canada, and a sometimes visiting professor at Harvard). Another three law experts also signed the missive: Nadine Stroessen, Monroe Freedman and Suzanne Last Stone.
The US-born Pollard, 59, has spent 29 years behind bars and is up for parole next year. A naval intelligence analyst, he was imprisoned in 1985 for passing American secrets to Israel. The American intelligence and defense community has for years dug in its heels over keeping Pollard imprisoned, even as calls for his release have grown louder in worldwide Jewish communities and mainstream Israeli politics.
Shimon Peres, who is meeting with Obama this week on one of the final trips of his presidency, which ends next month, assured Pollard’s wife Esther on Sunday that he would advocate for his release.
The letter sets forth what the signatories call ten compelling considerations for the exercise of executive clemency by Obama, as follows:
1. Pollard is now serving his twenty-ninth year of an unprecedented life sentence for the crime of “conveying classified information to a foreign government.” The usual sentence for this offense is six to eight years, with actual jail time before release averaging two to four years. Simply put, Pollard’s unprecedented life sentence is “excessive, grossly disproportionate, unfair and unjust.”
2. The sentence of life imprisonment is itself a breach of the plea bargain, wherein the prosecution had agreed not to seek life imprisonment in return for Pollard’s guilty plea, a breach characterized by Judge Stephen F. Williams of the U.S. Court of Appeals for the First District as a “complete and gross miscarriage of justice.”
3. The life sentence was itself secured as a result of the submission — after the plea bargain and in violation of it — of a prejudicial ex parte affidavit to the sentencing judge.
4. Pollard has not only been excessively and disproportionately punished for the crime he did commit, but has been effectively punished and maligned for the crime he never committed – nor was ever charged or convicted of – namely, the crime of treason.
5. Pollard was falsely accused over the years of having compromised US security and American lives in Eastern Europe, when it was Aldrich Ames, the head of the CIA’s Soviet/Eastern Europe Division, who had himself been both the architect of those treasonable acts, and the original source of the false allegations against Pollard.
6. A largely ignored December 2012 declassification of a 1987 CIA damage assessment concerning Pollard shows, as Lawrence Korb, assistant secretary of defense from 1981 to 1985 under Caspar Weinberger, reported, that “Pollard had cooperated with them fully and in good faith, acknowledged that Pollard did not divulge the most sensitive U.S. national security programs, including military activities, plans, capabilities, equipment, or communications… that Pollard provided intelligence only on the Soviet Union’s activities in the Middle East, the Arab States and Pakistan.” Yet CIA officials continued to knowingly and falsely accuse Pollard of actions prejudicial to US national security.
7. Pollard was himself deprived of the right to effective legal counsel and defense as his attorney neglected to file a notice of intent to appeal following the prejudicial sentencing hearing, and Pollard was therefore forever deprived of his right to a direct appeal against his life sentence. The only appeals he has been able to bring have been of a collateral nature only, were dismissed on technical and procedural grounds, and were never addressed on the merits. Indeed, American former prosecutors and directors intentionally mislead when they write that Pollard’s life sentence “was subsequently upheld by the Appellate Court” – masking the fact that the US Court of Appeals for the First District had rejected Pollard’s appeal in a two to one decision on narrow technical grounds.
8. Virtually everyone who was in a high position of government – and dealt with the ramifications of what Pollard did at the time – now supports his release, including secretary of state George Shultz, FBI director and subsequent CIA director William Webster, chairman of Senate Intelligence David Durenberger, and chairman of House Intelligence Lee Hamilton.
9. It is important to recall and to note that Pollard fully honored the plea agreement that the government violated; that he fully cooperated with the authorities; that he has been a model prisoner; that he has apologized and expressed remorse for his actions; that he has been falsely accused over the years – by those in a position to know better – of compromising American security if not American lives; that his sentence and imprisonment is as unjust as it is unprecedented; that Pollard is aging, in deteriorating health and deserving of release.
10. Finally, 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.”
The signatories conclude that “it is precisely for standing injustices like this – and where the justice system has failed – that the US Constitution has vested in the president the power of executive clemency. We urge you to exercise this power in the pursuit of justice, the rule of law and simple humanity.”