WHILE AMERICAN troops defend our Mideast allies in the heat of the Saudi Arabian desert, it was 106 degrees the other day in the shade of Jonathan Pollard's cell at the federal penitentiary in Marion, Illinois. Pollard, you may recall, was arrested five years ago for passing along to Israel American intelligence data about hostile countries like Iraq. And now came denial of his latest appeal to withdraw a guilty plea on the ground that it was unfairly obtained.
Both the United States and Israel have handled the case poorly from the beginning. The Israelis refused their own agent the protection of their embassy in Washington -- while at the same time acknowledging and approving the role of his superiors back home. The Americans were plainly duplicitous in Pollard's prosecution, grossly discriminatory in his sentencing, and have been arbitrarily harsh concerning his imprisonment.
What is fact was Pollard's crime? He informed the Israelis that Iraq was building both nuclear facilities and what we now know as the Condor II missile (whose range enables it to reach Israel); told of planned PLO attacks on Israeli civilians and the projected numbers of casualties, and betrayed the fact that nerve and biological gases were being shipped to Iraq from West Germany. (When he asked his superiors why such intelligence was not being relayed to Israel, he was told "Jews are too sensitive about gas.")
None of the documents he passed along included anything that would compromise United States military efforts. Indeed Pollard was never indicted for nor convicted of treason or damaging American security.
Like all espionage, Pollard's activities were clearly illegal -- but they are hardly unique even among allies. During the Lebanon war, for example, a Jewish American who had risen through the ranks of the Israeli army was caught spying for the United States. American teen- agers were recruited to gather information on Israeli military installations while serving in a special Israeli unit called Gadna. In each of those cases Israel chose not to humiliate its closest ally; whatever protests it registered were done quietly through diplomatic channels.
Because the United States relies heavily on Israeli intelligence for its own operations abroad, it is quite possible that by enhancing Israel's knowledge of Arab capabilities and intentions Pollard was instrumental in preventing terrorist attacks against both Israelis and Americans. (Israelis remain appalled at the way Pollard was been treated, and many thousands have sent letters and money in his support.)
When Pollard was caught, he cooperated fully with the prosecutors in return for their implicit and explicit promises to mitigate the charges against him. Indeed Pollard provided the prosecution a great deal of data, including the names of high-ranking Israelis who were involved.
The prosecutors kept none of their promises. A plea bargain violated is no better than a contract breached; it should have been annulled. Judge Aubrey Robinson sentenced Pollard to life imprisonment. For the past two years he has been in solitary confinement at the most severe prison in the federal system; for a year prior he was kept in an insane asylum in Springfield, Missouri -- although the director of the Bureau of Prisons conceded, "he was not there as a patient."
In ignoring the plea bargain Judge Robinson relied heavily on a secret memo sent to him by the secretary of defense at the time, Caspar Weinberger. "Pollard gave Israel information it could use against Arab countries friendly to the U.S.," wrote Weinberger, "bolstering Israel's strength." He also said that Pollard should be "shot" or "hanged" for his crime.
It was an extraordinary breach of judicial process, not to mention an egregious overstatement of the offense and a betrayal of overt prejudice. Even Secretary of State George Schultz called the Weinberger memo "a nasty piece of work."
But the judge was also well aware that William Casey, then director of Central Intelligence, had urged the Justice Department to drop the charges, and that patently worse offenses had brought much lighter sentences. John Walker, who sold classified data to the Soviet Union over two decades, will be eligible for parole in 15 years. Clayton Lonetree disclosed the identities of American agents working in Russia; he was sentenced to 30 years, with parole possible in 10. On average, those convicted of selling American secrets to hostile governments spend 12 years in prison.
Judge Robinson would countenance none of that in condemning Pollard. And September 11 it was he again who rejected Pollard's latest appeal to withdraw the guilty plea and to stand trail. It should not be surprising, of course, that the judge would deny his own prejudice.
Pollard's father, world-renowned microbiologist at Notre Dame, said "Jonathan has never claimed he was innocent. But we believe in the Constitution, which guarantees equal justice under the law. Jonathan's sentence is a challenge to the intent and purpose of the Constitution. We believe this wrong will be righted, because our system works for all of America's citizens."
There is no getting around that what Pollard did, giving away American secrets, was wrong. The best spin that can be put on his spying -- to say that the data went to a friendly country whose security was at stake -- makes it a case of misplaced patriotism.
But what the United States government has done -- to renege on its end of an honestly negotiated plea bargain, and to mete out a punishment grossly disproportionate to that traditionally handed down for worse offenses -- is an even greater affront to American notions of fundamental fairness and civil liberties.
*Mr. Lasson teaches law at the University of Baltimore.