President Barack Obama's forthcoming trip to Israel affords him a special opportunity to mend political fences and guarantee a warm popular reception in that country, while at the same time ensuring that justice is served here at home. These are goals he should surely embrace — and he could achieve them by heeding the pleas of Israeli Prime Minister Benjamin Netanyahu and President Shimon Peres, as well as many high-minded Americans, and freeing Jonathan Pollard from prison.
Mr. Pollard was convicted in 1985 for having passed classified information to Israel. He has already served more than a quarter-century of a life sentence, a punishment grossly disproportionate to the average term (two to four years) for the offense he committed.
Mr. Obama has rarely exercised presidential clemency, a unique constitutional power that has been used liberally by many of his predecessors, including those for whom he has expressed great admiration. Abraham Lincoln, for example, pardoned, commuted or rescinded the convictions of 343 people during his four years as president. Both Democratic and Republican presidents have followed in Lincoln's tradition: Woodrow Wilson (2,480 pardons in eight years), Calvin Coolidge (1,545 in six), Herbert Hoover (1,385 in four), Franklin Roosevelt (3,687 in 12), Harry Truman (2,044 in a little less than two terms).
In stark contrast, Mr. Obama has pardoned only 23 people, far fewer than any president between Dwight Eisenhower (1,157) and George W. Bush (200). Such parsimony may be caused by wishing to avoid the impression of cronyism, but it can more likely be traced to the current Justice Department, which has encumbered the clemency process with lengthy delays and large backlogs.
The power to pardon should rightfully reflect compassion and fairness. Perhaps the administration's most egregious failure to correct a clear miscarriage of American justice is the case of Mr. Pollard, whose life sentence was by far the harshest ever meted out for a similar offense.
What he did was not treasonous under the Constitution. Indeed, the "victim impact statement" offered by prosecutors did not impute to him any damage to American interests — a conclusion publicly conceded by the intelligence community only late last year. In fact, Mr. Pollard kept his part of a plea bargain with federal prosecutors under which he agreed to cooperate fully with its investigation in return for a less-than-maximum sentence. But the sentencing judge, heavily swayed by secret and misleading declarations from then-Secretary of Defense Caspar Weinberger, ignored the plea agreement.
It is now widely acknowledged that the vague charges initially leveled against Mr. Pollard for somehow causing the then-unexplained loss of U.S. agents were for crimes actually committed by two others: Aldrich Ames and Robert Hanssen. (Mr. Ames was finally caught and convicted in 1994, Mr. Hanssen in 2001.) The real reason that the intelligence community persisted so long in its anti-Pollard whispers was more likely its lingering antipathy toward Israel for having destroyed Iraq's nuclear reactor in 1981 — shortly after which the Israelis were cut off from their traditional access to American intelligence. Mr. Pollard wrongly took it upon himself to remedy that failure.
It is now more clear than ever that he is being severely punished for deeds he never did nor was ever charged with doing. You don't have to go to law school to understand how much this violates the bedrock principles of American fairness, justice and compassion.
That Mr. Pollard had been acting on behalf of Israel, our staunchest ally in the Middle East, should be more than enough to justify clemency. Both countries were founded upon similar humanitarian values. In America, when the system fails, we pride ourselves on relentless self-scrutiny so that truth might ultimately prevail. Recognizing that principle, many of the major decision-makers who were intimately involved in the Pollard case have come forward to issue public calls for clemency. They include former secretaries of state Henry Kissinger and George Shultz, former senators Dennis DeConcini and David Durenberger (both of whom served on intelligence committees), former assistant secretary of defense Lawrence Korb, and James Woolsey, former director of both the CIA and FBI.
Recently, a bipartisan group of over 40 members of Congress, as well as hundreds of religious leaders of different faiths, joined in a petition for clemency, all of them declaring in unison their fundamental belief in an American value based upon a Biblical principle (Deuteronomy 16:20): "Justice, only justice, shall you pursue." Jonathan Pollard's life sentence makes "equal justice under law" seem like little more than a palsied proverb.
If Mr. Obama is truly committed to American justice and a sensitive foreign policy, let us hope that he has the courage and character to set Mr. Pollard free, which he can accomplish with a simple flourish of his pen.
Kenneth Lasson is a professor of law at the University of Baltimore. His email is email@example.com.
- Crime, Law and Justice
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