JONATHAN Pollard was arrested seven years ago this week. His crime: He gave Israel critical information about the war-making capabilities of various Arab countries, data that had been gathered by U.S. intelligence agencies but inexplicably withheld from our most friendly ally in the Middle East. His thanks: He was denied asylum at the Israeli Embassy in Washington.
Now Pollard, condemned to life in solitary confinement at the country's toughest federal penitentiary, has exhausted all of his legal appeals.
But his case won't go away.
In return for his cooperation with prosecutors, the government promised not to seek a life sentence. Pollard fully lived up to his end of the bargain; the government did not. Among other things, it allowed Caspar Weinberger, then secretary of defense and now under indictment himself for perjury and obstruction of justice in the Iran-contra affair, to submit a statement that Pollard deserved the harshest possible punishment (indeed, to declare that he should be executed for his crime). The judge gave him the maximum sentence allowable by law.
Compared to the punishment meted out to perpetrators of worse crimes -- to spies for hostile nations who much more severely compromised our national security -- Pollard's treatment amounts to a gross and shameful miscarriage of justice. Unfortunately, however, the sheer unfairness of his punishment holds little sway as a legal argument: Lower courts are given wide latitude in weighing facts and dispensing penalties, and their judgments in this regard are seldom appealable.
To be sure there were a few clear-headed people of conscience -- like Nobel laureate Elie Wiesel, Notre Dame's Theodore Hesburgh and Israel's Anatole Scharansky -- who recognized early on the palpable injustice of the Pollard case. But now the silence is no longer deafening. The painful ironies have become apparent to growing numbers of fair-minded Americans who have come to compare Pollard's punishment with the sentences handed down to intelligence agents much more demonstrably perfidious.
There are many examples:
In 1981 David Barnett became the first CIA agent ever charged with espionage, for selling intelligence data to Russia (including the identities of 30 American agents). His conviction brought him an 18-year sentence. Later that year an American aircraft engineer, William Bell, received eight years for having handed over anti-tank missile radar technology to a Polish agent.
In 1985 Samuel Morrison, an analyst at the ultra-secret Naval Intelligence Support Center, was caught with some 7,500 classified documents in his apartment (including secret spy-satellite photographs of the Soviet Union's first nuclear aircraft carrier). He was sentenced to two years in prison, and was released after eight months. That same year Navy Ensign Stephen Baba was found guilty of illicitly transmitting to South Africa codes relating to electronic warfare. He received a two-year term.
In 1987 Marine Sgt. Clayton Lonetree was convicted of spying for the Soviet KGB. He was sentenced to 30 years and will soon be eligible for parole.
In 1989 an American rocket scientist named Abdelkader Helmy was caught exporting material used in Stealth missiles to Egypt, before he could implement his plan to sell it to Iraq. His conviction netted him three years and 10 months in prison.
In 1990 FBI Agent Richard Miller passed a counter-intelligence manual to a female Soviet agent in exchange for sex and money. He was sentenced to 20 years and is eligible for parole after seven.
The most recent case to stand in stark contrast is that of Army Specialist Albert Sombolay, who sold Iraq information on U.S. troop deployment and combat vehicles during the Persian Gulf war. He also offered the Iraqis samples of military clothing designed to protect against chemical warfare, as well as photographs of his unit's activities in Saudi Arabia. He pleaded guilty to espionage and contacting the enemy. He was dishonorably discharged, reduced in rank and sentenced to 34 years in prison -- later reduced to 19.
In fact, not one individual convicted of espionage is serving a longer term than Pollard -- even though he was charged with a lesser crime. He was not indicted for treason because there was none. However misguided his conduct, it was motivated primarily by his strong conviction that an executive agreement between the United States and Israel -- which he and others understood to require disclosure of the particular information he provided to the Israelis -- was being purposefully and systematically abrogated.
Jonathan Pollard's offense pales in comparison to those of a multitude of others now breathing free air. He never sought to give aid or comfort to an enemy. Though what he did was wrong, in no way did it compromise the internal security of the United States. The act of providing classified information to a friendly foreign country is a crime of clearly differing proportions.
To the contrary, the data he gave Israel about Iraq's chemical-warfare capability is largely credited with enabling the Middle East's only democracy to prepare its population against attack. In turn, Israel was able to acquiesce to subsequent American entreaties that it forbear from entering the Persian Gulf war when it was outrageously attacked by Iraqi missiles.
Grass-root Americans have been joined by members of Congress, law professors and clergy of all faiths to demand that this case be brought to a just conclusion. Even the government of Israel -- still our surest ally in the Middle East -- has shown newfound pangs of conscience about Pollard; its popular press urged long ago that his sentence be commuted to time served.
That is why Jonathan Pollard's case will not go away.
The president has been asked to pardon Caspar Weinberger, whose situation is much less compelling than that of the man he condemned. Unlike Weinberger, Pollard admitted guilt and expressed remorse. He's been punished enough.
Releasing Pollard would be a matter of plain if not poetic justice. He deserves clemency, if not thanks.
Kenneth Lasson is a professor of law at the University of Baltimore.