David Zwiebel, director of government affairs and general counsel of Agudath Israel of America, a national Orthodox Jewish organization, was “Of Counsel” on the amicus curiae brief submitted in support of Jonathan J. Pollard’s 1991 appeal to the U.S. Court of Appeals for the D.C. Circuit.

The Federal government’s “Victim Impact Statement” in the criminal proceeding against Jonathan J. Pollard, published here for the first time, is significant both for what it says and for where it fits in the larger picture of the government’s case against Pollard. In addition to the portion published here, the Victim Impact Statement contains two more paragraphs. These detailed how Pollard’s actions “significantly affected the normal flow of work” at the Anti-Terrorist Alert Center where he had been employed and how they had an “emotional effect on personnel” at the center.

Pollard, it will be recalled, was an intelligence research specialist with the U.S. Navy who received a life sentence in March 1987 after being convicted of spying for Israel. Efforts over the past decade to reduce his sentence and withdraw his plea have been rejected,¹ as have his requests to the president for commutation of sentence and clemency. As a result, he continues to languish in Federal prison.

Life imprisonment is apparently the harshest punishment ever meted out to someone found guilty of spying during peace time. Indeed, since the execution of Julius and Ethel Rosenberg in 1953, during the Korean War, no spy has received a harsher sentence, even during war time. The severity of Pollard’s sentence is in itself noteworthy.

It is all the more so in light of two other factors. First, Pollard did not stand trial for his crime. Rather, he received his life sentence after entering into a plea-bargain agreement in which the government promised not to seek a life sentence. Entering into that agreement, Pollard relinquished his right to a trial, cooperated with government investigators, pleaded guilty -- all, presumably, with the expectation that some leniency would be shown in his sentence. The expectation was reasonable, but it proved illusory. Secondly, Pollard was sentenced to life in prison despite the fact that he was never accused of delivering classified information to an enemy of the United States. Rather, he was accused of delivering such information to Israel, a close and staunch American ally. There may be no other case of a life sentence imposed for spying on behalf of a strategic ally.

All of these factors lead one to assume that there must have been something extraordinary about Pollard’s crime -- that it caused damage to the United States of such enormous magnitude as to justify a life sentence, after a plea bargain, for committing peace time espionage on behalf of an ally. What could that enormous damage have been?

THE CRIMINAL INDICTMENT

The logical starting place to find an answer would be the June 1986 criminal indictment, in which the government detailed its charges against Pollard. Yet the indictment provides nary a clue. On the contrary, it strongly implies that Pollard’s actions were not perceived as having caused great harm to American interests.

Specifically, the indictment charges Pollard with violating 18 U.S.C. § 794 (c), the Federal law that makes it a crime to deliver defense information to a foreign government “with intent or reason to believe” that the information is to be used in one of two ways: “to the injury of the United States”, or, alternatively, “to the advantage of a foreign nation.” In its charge against Pollard, the government did not cite the first prong of the statute; rather, the charge against him simply cited the second prong, alleging that he had “intent and reason to believe that the [information] would be used to the advantage of ISRAEL.”²

To be sure, the espionage statute contemplates no legal distinction between spying for an enemy, which clearly would satisfy the “to the injury of the United States” prong of the law, and spying for an ally; both are theoretically subject to the same penalties. But legal equivalence is not moral equivalence. Disclosing classified information to a friendly state, though a serious offense, obviously involves much less moral culpability than disclosing the same information to an enemy. The government’s decision not to charge Pollard with intending to harm the United States thus gave him good reason to anticipate something less than a life sentence; when he pled guilty to the charge of espionage “to the advantage of a foreign nation,” it was entirely rational to assume that the court would show some leniency in sentencing.

Between the time of the plea bargain in May 1986 and the time of sentencing ten months later, however, the government sang quite a different tune. And it was in the Victim Impact Statement (VIS), obtained recently by Pollard as part of his pre-sentence interview report,³ that the government appears to have first started that change.

THE VICTIM IMPACT STATEMENT

The Federal Rules of Criminal Procedure authorize a judge to consider as a factor relevant to the defendant’s sentence the impact that the defendant’s crime had on the victim of the crime.⁴ The victim of Pollard’s crime being the United States, the government, through its lawyers, assistant U.S. attorneys Charles S. Leeper and David F. Geneson, submitted the VIS sometime between May 1986 and January 1987⁵to U.S. District Judge Aubrey E. Robinson, Jr., as the opening salvo in its damage-assessment barrage.

The VIS asserts, in conclusory language, that the damage caused by Pollard was essentially threefold: the breadth and scope of Pollard’s disclosures were great, the disclosures threatened U.S. relations with its Arab allies, and they reduced U.S. bargaining leverage over intelligence with the Israelis.

As the first sentence of the VIS makes clear, this document was submitted prior to the submission of the government’s classified in camera damage assessment affidavit, and was intended only to provide a summary of the more detailed submission to come. It is unlikely, therefore, that the VIS played a critical role in Judge Robinson’s eventual sentencing decision. Its historical value, though, is quite significant -- for it marks the point at which the government began to transform the charge against Pollard from the second prong of the espionage statue (“to the advantage of a foreign nation”), to which Pollard had pled guilty, to the first (“to the injury of the United States”), for which Pollard had never been charged.

THE WEINBERGER DECLARATIONS

The VIS was but the first step in this transformation. In January 1987, the government submitted a 46-page classified declaration from Secretary of Defense Caspar Weinberger that described in detail the harm Pollard’s activities had allegedly caused to national security. (This is presumably the in camera affidavit anticipated in the first sentence of the VIS.)

We do not know precisely what Secretary Weinberger wrote in this declaration; much of the document remains classified and unavailable to the public. In the heavily redacted version that has been released, however, there appears the charge, for the first time, that Pollard had endangered American lives. By disclosing to the Israelis “sources and methods of information acquisition,” Weinberger asserted, Pollard “jeopardized ... the sources of that information, by placing it outside of a U.S. controlled security environment.”⁶In addition, “U.S. combat forces, wherever they are deployed in this world, could be unacceptably endangered through successful exploitation of this data.”⁷

Then, on March 3, 1987 -- the day before Pollard was to be sentenced -- Secretary Weinberger submitted a supplemental declaration to the court, which included the following:

It is difficult for me, even in the so-called “year of the spy,” to conceive of a greater harm to national security than that caused by the defendant in the view of the breadth, the critical importance to the U.S., and the high sensitivity of the information he sold to Israel ... I respectfully submit that any U.S. citizen, and in particular a trusted government official, who sells U.S. secrets to any foreign nation should not be punished merely as a common criminal. Rather the punishment imposed should reflect the perfidy of the individual’s actions, the magnitude of the treason committed, and the needs of national security.⁸

Weinberger here accuses Pollard of “treason” -- a legal term of art defined in both the Constitution and Federal statute as levying war against the United States or aiding America’s enemies.⁹ The secretary’s use of the term is breathtakingly inappropriate.¹⁰

In making its case against Pollard, the government traveled a great distance: from choosing in its indictment not to charge Pollard with injuring the United States, to listing in the Victim Impact Statement allegations of damage to American interests, to raising in Secretary Weinberger’s January declaration the specter of danger to American lives, to accusing Pollard of “treason” in Weinberger’s eve-of-sentencing supplemental declaration. It almost appears that the government leveled a charge of lesser magnitude against Pollard; successfully secured his guilty plea; and then post-facto kept upping the ante, to the point where a life sentence became almost inevitable.

ASSESSING THE DAMAGE

The VIS is historically significant not only because it marks the point at which the government began to proceed against Pollard in a manner never even hinted in the indictment, but also because it affords outside observers an opportunity to evaluate the quality of the government’s articulated concerns about the damage Pollard caused.

That such evaluation today enjoys the advantages of a decade’s hindsight does not diminish its relevance or importance. President Clinton’s ongoing reference to “the considerable damage that [Pollard’s] actions caused our nation” and “the damage done to our national security” as prime factors in his refusal to grant Pollard clemency¹¹ make it entirely appropriate to consider how well the VIS’s damage assessments have withstood the test of time.

It is difficult to accept that the VIS’s contentions of damage -- about the breadth and scope of information Pollard transmitted to the Israelis, the impact on U.S.-Arab relations, and the absence of quid pro quo information from Israel -- add up to such enormous harm as to justify a life sentence. For decades, Washington has sought to assure Israel of a qualitative military and strategic advantage vis-à-vis its Arab neighbors; Pollard’s actions were, if anything, consistent with this goal. Events of subsequent years (and especially the Kuwait war) have shown America’s enormous credibility with its allies in the Arab world; Pollard’s actions had no discernible impact here. Finally, intelligence sharing between the United States and Israel has only been strengthened in the past decade, culminating in a historic strategic cooperation agreement between the two states in 1996; Israel now receives real-time data throughout the day from U.S. intelligence satellites. If Pollard’s actions indeed “adversely affected U.S. relations with both its Middle East Arab allies and the government of Israel,” as stated in the VIS, it seems fair over a decade later to say that such adverse impact was only of short duration.

It is difficult to accept that the VIS’s contentions of damage add up to such enormous harm as to justify a life sentence.

Nor, contrary to the concern expressed in Secretary Weinberger’s January 1987 declaration, is there any evidence that Pollard’s actions led to any loss of American life over the years. Indeed, in 1994, government sources were quoted as saying that “no one died as a result of the Pollards.”¹²

As Pollard now serves his twelfth year in Federal prison, with no release in sight, it would be useful to recall what this case was initially about: benefit to Israel, not harm to the United States. It would also be useful to evaluate whether the allegations of harm the government made only after winning a guilty plea from Pollard can withstand the scrutiny of a decade’s hindsight.

VICTIM IMPACT STATEMENT

The specific instances of damage to the national security caused by Mr. Pollard’s offense will be described in a classified damage session affidavit to be submitted to the Court in camera. Generally, it can be said that the breadth and scope of the classified information compromised by Mr. Pollard is among the greatest of any espionage operation uncovered by Federal authorities. Thousands of pages of Top Secret and Sensitive Compartmented Information were sold to the Israelis by Mr. Pollard. As explained in detail in the government’s in camera affidavit, Mr. Pollard’s unauthorized disclosures have threatened the U.S. relations with numerous Middle East Arab allies, many of whom question the extent to which Mr. Pollard’s disclosures of classified information have skewed the balance of power in the Middle East. Moreover, because Mr. Pollard provided the Israelis virtually any classified document requested by Mr. Pollard’s coconspirators, the U.S. has been deprived of the quid pro quo routinely received during authorized and official intelligence exchanges with Israel, and Israel has received information classified at a level far in excess of that ever contemplated by the National Security Council. The obvious result of Mr. Pollard’s largesse is that U.S. bargaining leverage with the Israeli government in any such further intelligence exchanges has been undermined. In short, Mr. Pollard’s activities have adversely affected U.S. relations with both its Middle East Arab allies and the government of Israel.

¹ See United States v. Pollard, 939 F.2d 1011 (D.C. Cir. 1992).
² Indictment at para. 15.
³ Telephone conversation with Jonathan Pollard, Jan. 7, 1997.
⁴ Federal Rules of Criminal Procedure, Rule 32 (c)(D).
⁵ The document, as it appears in the pre-sentence interview report, is not dated; it was issued some time after the plea bargain in May 1986 and the first Weinberger declaration of Jan. 1987.
⁶ Weinberger Declaration, Jan. 12, 1987, at pp. 28-29.
⁷ Ibid., at p. 44.
⁸ Weinberger Supplemental Declaration, Mar. 3, 1987, at paras. 2-3.
⁹ Constitution of the United States, Article 3, Clause 1; 18 U.S.C. § 2381.
¹⁰ It was inappropriate -- but not prejudicial, and not in violation of the government’s plea bargain pledge not to seek a life sentence. So ruled Judge Robinson in 1990, rejecting Pollard’s motion to withdraw his guilty plea, United States v. Pollard, 747 F. Supp. 797 (D.D.C. 1990); and so ruled a 2-1 majority of the D.C. Circuit Court of Appeals in upholding Judge Robinson’s decision. United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1992). Even Judge Robinson acknowledged, though, that “the Secretary may not have been neutral and detached,” 747 F. Supp. at 807; and the Court of Appeals took note of the “rather polemical tone” and the “rank hyperbole” of the Weinberger Supplemental Declaration. 959 F.2d at 1017, 1025.
¹¹ “Statement by the President,” Office of the Press Secretary, White House, Mar. 23, 1994, and The Forward, Aug. 2, 1996.
¹² “Plea in Ames Spy to Hinge on Wife’s Sentence”, The Washington Post, Apr. 23, 1994. “Pollards” in the plural because Pollard’s wife Anne had a role in the case as well, for which she was sentenced to five years in jail.