Time for a fresh start

By MORRIS POLLARD, DAVID KIRSHENBAUM

NOVEMBER 22, 2009 02:52

Time for a fresh wind in

Yesterday, Jonathan Pollard began the twenty-fifth year of his life sentence for passing to Israel during the 1980s classified US data concerning various Arab states, including evidence of Saddam Hussein's development of chemical weapons. This distressing anniversary is an appropriate moment to take stock of the bona fides of Jonathan's unprecedented punishment and the continued obsession of many in the US government with insuring, in the words of Jonathan's lead prosecutor, that Jonathan "never see the light of day." One of the cornerstones of Barack Obama's presidency has been an expressed intent to make a clear break with a purported American policy of acting like a bully to the world. We would do well then to consider just who the United States was bullying and which countries it was coddling when the Pollard affair broke and whether US behavior is any different today under President Obama. PRIOR TO the Khomeini revolution in 1979, US Middle East policy was anchored in the "Twin Pillars" of Iran and Saudi Arabia. With the overthrow of the Shah, the US sought a replacement for one of its now fallen pillars. It turned to Iraq's Saddam Hussein, the brutal dictator of a country that was on America's list of state sponsors of terror. This US policy shift was the genesis to the Pollard. Throughout the 1980s, continuing until one week before Iraq's invasion of Kuwait in the summer of 1990, the US government pursued a policy of craven appeasement of Iraq. America turned a blind eye to Saddam Hussein's use of chemical weapons, it allowed the transfer of billions of dollars of US taxpayer backed credits to Iraq via the Atlanta branch of an Italian bank to secretly finance Hussein's purchase of both agricultural goods and weaponry, and cooperated in the sale to Iraq by third parties of a wide variety of military equipment, including US military rocket cluster bombs, chemical weapons technology and missile technology. Every sane government in the world today looks with grave concern at the nuclear weapons capability that Iran is on the threshold of acquiring. And they shudder at the thought of what might have been if Iraq had a nuclear weapon when it invaded Kuwait in 1990. That power was denied Saddam Hussein when Israel destroyed Iraq's Osiraq nuclear reactor in June 1981. But at the time, Israel was not thanked, but rather was subjected to near-universal condemnation, including from the United States. In the Reagan White House, there was a consensus among vice president George Bush, defense secretary Caspar Weinberger and chief of staff James Baker that Israel needed to be punished. Weinberger persuaded Reagan to delay delivery of F-16 fighter jets to Israel and the similarly incensed Deputy CIA Director Bobby Ray Inman ordered withholding from Israel all satellite photography and other similar materials involving areas more than 250 miles from Israel's borders. This ban was then formally approved by Weinberger and converted what was until then a routine intelligence transfer into a criminal violation. Thus, transmittal to Israel of photographs of the eastern sections of Syria and Iraq, including chemical weapons plants in eastern Iraq built and financed by US companies, became the grounds for Pollard's life sentence. The background behind Jonathan's actions is not presented as grounds for exoneration, but rather as a reason for the mitigation of the severity of his punishment. For it is uncontestable that Jonathan is in a party of one who has been singled out from all other Americans who spied for non US adversaries. Thus, of the more than 20 Americans caught spying for friendly or neutral countries, both before and after Jonathan's arrest, none received a sentence even remotely close to life, the average sentence being between two and four years. These included cases of spies for supposed US allies like Egypt and Saudi Arabia, who were receiving very generous American foreign aid or military protection at the time they were spying on the United States. Most recently, Ronald Montaperto, a Defense Intelligence Agency analyst who admitted passing classified intelligence to the Chinese during a 14-year period, was sentenced to three months in prison. And of the more than 60 spies for US adversaries over the past quarter-century, many of whom caused massive and demonstrable harm to the US, barely a handful received life terms. CIA agent David Barnett, who sold the Soviets the names of 30 American agents, was given an 18-year sentence and paroled after 10 years. Michael Walker, for many years a key figure in the Walker family Soviet spy ring, was sentenced to 25 years and released after serving 15. William Kampiles, a CIA officer who sold the Soviets the operating manual to the KH-11 satellite, America's eye in the sky, received a 40-year sentence and was released after 18 years. Abdul Kedar Helmy, an Egyptian-born American, transmitted classified materials to Egypt that were used in a joint weapons program with Iraq to vastly increase the range of ballistic missiles, including Iraq's Scud missiles, which were later fired on US troops during Desert Storm. Helmy received a prison term of less than four years. John Paul Lindh, an American who joined the Taliban terrorists fighting the United States, received a 21-year sentence. THUS THE message of those still opposed to Jonathan's release, even after 24 years in prison, is that we can wink at espionage on behalf of Egypt, Saudi Arabia and China. And we can limit the punishments of those who expose American agents, compromise America's most sophisticated electronic intelligence capabilities, advance the development of enemy weapons systems, and even fight alongside enemy combatants. But the unauthorized transmittal of classified data about Arab states to Israel, America's closest ally in the Middle East, in order to warn her of existential threats is unforgivable. For that crime, five years in prison is not enough; nor is 10 or 15 or 24 years sufficient punishment. There is no honor in such pseudo-patriotism. Is there not more? Must there not be some good reason why Jonathan is still in jail? In every other case of espionage pursued by the US government, the public has always been given at least some specific examples - not mere unsubstantiated claims - of actual damage which resulted from the espionage. For example, there have been few espionage cases as sensitive and as embarrassing to the intelligence community as the Aldrich Ames fiasco. And yet, immediately following Ames's arrest, it could be disclosed that Ames was responsible for the deaths of at least a dozen US operatives in the Soviet Union. Soon after, we could be told their code names. By contrast, 24 years after Jonathan's arrest, the US government has yet to put forth any evidence of actual damage caused to the United States as a result of his actions that could even begin to justify a punishment even remotely close to a life sentence. We are left with the condemnation by Jonathan's prosecutors that his actions damaged US relations with purported US allies in the Arab world, hypotheticals presented to the court of damage that could be caused in the future by Jonathan's transmittals, none of which made any real sense at the time and, in any event, never materialized, and the still secret testimony of Weinberger, who was later indicted for perjury and was spared a trial only by virtue of a presidential pardon. When Jonathan was arrested, the last thing the Reagan administration wanted was a public trial that could have exposed its massive assistance to Saddam Hussein, including participation by US companies in the building and financing of Iraqi chemical weapons plants. So the government induced Jonathan to forego a trial with threats to vigorously prosecute his ailing wife, who knew of, but did not participate in Jonathan's activities. Having thus avoided public scrutiny, the government then went after Jonathan with a vengeance to secure a life sentence. Judge Stephen Williams, a conservative Reagan appointee to the US Court of Appeals, found that the government misconduct in the Pollard case constituted a "fundamental defect" resulting in a "complete miscarriage of justice." Similarly, Benjamin Hooks, who as a former judge and long-time director of the civil rights organization, the NAACP, has seen and experienced many inequities during his lifetime, wrote about the Pollard case in a letter to Bill Clinton in 1993, "I have rarely encountered a case in which government arbitrariness was so clear cut and inexcusable." The government malfeasance in the Pollard affair and the refusal of successive administrations to bring the matter to a close are symptomatic of an often disturbing posture by the United States in its relations with Middle Eastern governments. Indeed, when you cut through the rhetoric, it is debatable whether there is much difference in this regard between Barack Obama and his predecessors in office. All have shown tremendous tolerance, even obsequiousness, in dealing with some of the worst human rights abusers in the Arab world, while having little compunction about using the bully pulpit to cast aspersions on the one democracy in the Middle East and treating Israel with suspicion and not as a friend. PRESIDENT OBAMA has expressed strong distaste for secret military tribunals at Guantanamo Bay and the Obama Justice Department has now agreed to give even the accused mastermind of the 9/11 terror attacks a civil public trial in New York City. We therefore have good reason to hope that the US Attorney General should have no problem ordering the release of Weinberger's 24-year-old secret testimony and explaining to the American people on what grounds Jonathan Pollard is still in prison. If the Justice Department is reluctant to do so because of the embarrassment it will suffer when it is revealed that, in the Pollard case, the Emperor has no clothes, President Obama can do the honorable act and announce this December that he is commuting Jonathan's life sentence to the nearly quarter century served. This would certainly signal evidence of the "fresh wind" in the White House that so many Americans have been hoping for. Dr. Morris Pollard is a professor emeritus at the University of Notre Dame and the father of Jonathan Pollard. David Kirshenbaum is an attorney.