‘Forgotten’ Jews Address Injustice
Addressing a conference of Jews predominately from the Middle
East and North Africa, keynote speaker Stan Urman delivered a quip that
underscored the sentiments of many audience members.
“When I first heard about your group, JIMENA [Jews
Indigenous to the Middle East and North Africa], and knowing that it originated
from California, I thought it was wonderful that there was a group of Hispanic
people concerned about the plight of Jewish refugees,” said Urman.
Urman, the executive director of the Center for Middle East
Peace and Economic Cooperation, followed his humorous opening remarks with some
pointed remarks Sunday at JIMENA’s conference held at San Francisco’s Reform
Congregation Sherith Israel.
“Why have this discussion now?” Urman asked rhetorically.
“The answer is because the Jewish community is appalled by the ignorance of the
world to the facts of the situation, and because as the living witnesses to
history pass on, it becomes even more pressing that we address this historical
“Whenever the ‘conflict’ in the Middle East is addressed,
Palestinian and Arab refugees are always referred to,” Urman continued, “but
where are the stories of Jews from Arab lands whose property has been
confiscated? Those stories are rarely told.”
The conference, “Forgotten Refugees: Jews Expelled From Arab
Countries,” was sponsored by the Jewish Community Relations Council, JIMENA and
the Jewish Community Endowment Fund of the Jewish Community Federation. Support
came from the World Jewish Congress and other local and national Jewish
About 300 people attended the four-hour event, hearing and
sharing testimonials detailing imprisonment at internment camps, mass
deportations, rape and ethnic cleansing. The stories were interspersed throughout
the conference, which also featured panels on community activism, the role of
the United Nations in the Middle East and a keynote address by Algerian-born
Jew Eric Benhamou, the chair of 3Com Corp.
Urman went on to debunk what he considered to be a slipshod
analogy between the two groups of refugees. “Israel, in its infancy, absorbed
650,000 Jews from the Diaspora, whereas the Arab countries, with the exception
of Jordan, turned their back on the Palestinians and used them as a political
weapon for the past 55 years.
“There is no symmetry, and no comparison.”
Urman, a Canadian Jew of European ancestry, offered some of
the guiding principles of the conference. He recalled the “rich heritage of
Jewish culture in Arab lands,” and advocated “exposing the myth that there is a
greater number of Palestinian refugees than Jewish refugees from Arab lands,”
citing the “state-mandated hate that Jewish residents of Arab lands were
Urman also called for financial restitution to Jewish
refugees exiled from Arab countries and insisted that any Palestinian-Israeli
accords include discussion of that restitution.
Yitzhak Santis, the director of Middle East affairs for the
JCRC, echoed Urman’s comments, adding that a movement to redress the grievances
of Jewish refugees from Arab countries is just beginning to gain momentum.
“There really cannot be true justice and reconciliation in
the Middle East, and between Israel and the Palestinians until this issue is
fully addressed and made part of the final settlement equation,” Santis said.
Spinning a joke about the prevailing Jewish paradigm, JIMENA
co-chair Joseph Abdel Wahed said, “There aren’t too many Goldbergs or
Goldsteins here this afternoon, but there are plenty of Semhas and Wahbas.
“We’d like to change the perception of the organized Jewish
community,” said the Egyptian-born Wahed. “After World War II, the focus was on
[the fact that] European Jews had been slaughtered, and rightly so.
“But there were hundreds of thousands of Jews from Arab lands
who also lost their lives and property. Our story isn’t very well-known, and
now is the time to finally tell it to the world.”
Why Jonathan Pollard is Still in Prison
On January 7, 2002, former Israeli prime minister Benjamin Netanyahu arrived
without fanfare at the Federal Correction Center in Butner, North Carolina
to visit America’s most controversial Jewish prisoner. Now serving his 17th
year of incarceration Jonathan Jay Pollard, prisoner 09185-016, pleaded
guilty in 1986 to spying for Israel. He was sentenced to life imprisonment
despite a binding plea bargain that would have guaranteed his eventual
For several hours, within earshot of a National Security Agency monitor,
Netanyahu and Pollard spoke about the anguish of Pollard’s imprisonment and
practical ideas to set him free. “Contrary to perfidious rumors about his
manner,” remembers Netanyahu in a telephone interview, “Pollard was
absolutely clear and in control, both intellectually and emotionally.”
“A great injustice has been perpetrated by keeping Pollard endlessly in
jail,” Netanyahu asserted, summarizing a key point among those advocating
that he be freed.
Netanyahu’s crusading tone is now a common feature of the Jonathan Pollard
saga. Since that tumultuous afternoon, March 4, 1987, when federal Judge
Aubrey Robinson stunned his courtroom by imposing a life sentence, Pollard
has been the cause célèbre of an international movement to free him. The
roster of those advocating for Pollard’s release, or the overturn of his
sentence, includes Israeli prime ministers; Nobel laureate Elie Wiesel, who
has visited Pollard twice in prison; numerous members of Congress; and an
armada of America’s most celebrated defense attorneys, including Harvard’s
flamboyant Alan Dershowitz and Theodore Olsen, now the U.S. Solicitor
General. Legions of grass-root supporters both within America’s Jewish
community and the Israeli electorate call for Pollard’s immediate release.
But an equally impressive group insists on his continued incarceration.
Virtually the entire U.S. intelligence and defense establishment, with CIA
director George Tenet acting as point man, want Pollard to remain in jail
forever. Few are as adamant about that as senior intelligence officers who
happen to be Jewish. Numerous ranking members of Congress, including Sen.
Joseph Lieberman, and a large number of American Jewry’s top communal
leaders do not object to Pollard remaining behind bars. What’s more, some
top Jewish professional leaders privately express revulsion at efforts to
win Pollard’s freedom.
Endless articles and several books have been written about this complex and
mysterious case, but one haunting question towers about all others: why has
Jonathan Pollard been imprisoned so long?
He was convicted of a single count of disclosing documents to an ally
foreign government, in violation of Title 18, section 794c. The far more
serious crime of selling classified information to an enemy nation, such as
Iraq or the Soviet Union, violates section 794b, and generally fetches a
life sentence. But in contrast, those who divulge the nation’s secrets to
allies, as Pollard did, always receive lesser sentences.
His life term rivals only those handed down to America’s greatest traitors,
such as Aldrich Ames, whose treachery killed American agents, and John
Walker who revealed our nuclear submarine positions to the Soviets.
So why is Pollard still in prison with no end in sight to his life sentence?
Pro-Pollard groups suggest anti-Semitism, but numerous Jewish organizations
insist that is not the case. Some pundits maintain the spy’s knowledge of
America’s secrets are so sensitive, his enemies so powerful, the politics so
volatile, his crime so severe, that he can never be released.
But after an intense review of thousands of pages of Pollard-related
documents, and dozens of interviews with prosecutors, senior intelligence
officers, current and former Israeli and American government officials, the
defense attorneys, and an exclusive prison interview with Jonathan Pollard
himself, it seems clear the reason Pollard remains in prison has more to do
with legal technicalities and foolhardy bravura than political intrigue.
The focus now comes down to just two men. The first is Pollard’s own
defense attorney, Richard A. Hibey, who is accused in court papers of having
irrevocably mishandled the case 15 years ago in ways that may never be
undone. The other is Jonathan Pollard himself, whose provocative conduct
while in federal custody sealed his own fate. Pollard’s only hope for
freedom is now a habeas corpus action launched by his new pro bono
No one has ever been able to identify reliably exactly what secrets Pollard
sold to Israel. Jewish leaders who have been briefed by trustworthy sources
have constantly been told the same refrain: “If you only knew how severe the
damage was.” Despite reams of guesswork and Washington’s porous nature, the
details are still undisclosed.
But those details are clearly enumerated in a 46-page sworn declaration to
the sentencing judge by then-Secretary of Defense Caspar Weinberger, most of
which has been classified top secret. The secret affidavit includes a
classified analysis of 20 illegally disclosed documents.
“The judge requested — the court asked — for a confidential,
highly-classified summary to report the damage done,” Weinberger told me in
an interview. Although the declaration was signed by Weinberger and
submitted as the Secretary’s personal affidavit, the damning document was in
fact assembled piecemeal by an inter-agency group of intelligence officials
independently assessing Pollard’s damage to their own operations. A redacted
copy of that sworn 46-page declaration, obtained by this reporter, together
with information and analysis reported by several of the actual
contributors, indicates that Pollard indeed compromised the most sensitive
aspect of American intelligence, providing Israel with the highest level of
secret information. “More than 1,000 unredacted messages and cables,” of
which a significant number were not just top-secret but “codeword
sensitive,” were delivered to Pollard’s Israeli handlers, according to the
Washington feared that Israel could have traded the secret materials with
other intelligence services. The information could have even ended up in
Moscow, perhaps as a bargaining chip at a time when Israel was trying to
free Soviet Jews. Numerous intelligence reports about Soviet missile
systems, delivered by Pollard, exposed the way America analyzed Soviet
weapons. He transmitted regional surveillance data from the VQ-2
reconnaissance squadron in Spain, thereby enabling Israel to virtually track
America’s own intelligence capability in the Mediterranean and even over
Israel itself. This was crucial in Israel’s 1985 bombing of the P.L.O.
headquarters in Tunis, which depended upon Israeli F-15s evading both
American and Arab listening posts over North Africa.
But all of this was dwarfed, according to a principal author of the
Weinberger Declaration, by photocopying for Israel the massive 10-volume
RASIN Manual. An acronym for Radio and Signal Intelligence [RASIN], the
precious manual is known as “the Bible,” according to the intelligence
officer. The RASIN Manual details America’s global listening profile,
frequency-by-frequency, source-by-source, geographic slice by geographic
slice. RASIN was, in effect, a complete roadmap to American signal
intelligence. Informed sources say Pollard’s RASIN Manual disclosure was the
crux of a secret exchange in Judge Robinson’s courtroom just moments before
the outraged judge finally pronounced a life sentence. Some estimate the
loss of the RASIN manual cost America billions of dollars and many years in
completely restructuring America’s worldwide eavesdropping operation. Though
Pollard has sought to downplay the consequences to the U.S. of his actions,
his crime was lasting and devastating to the U.S. intelligence community.
THE MEDIA CAMPAIGN
To avoid a public trial, the government negotiated a binding, written plea
agreement with both Pollard and his wife at the time, Anne. By way of
background, plea agreements govern conduct of prosecutors and defendants in
the time leading up to sentencing.
“A plea agreement is exactly what the two words suggest,” explains
distinguished former federal Judge George Leighton, who has studied the
Pollard case. “It is an agreement between defendant and government governing
the guilty plea and the length of sentence the government will insist upon.
This is done to induce the defendant to relinquish the important right of
trial. The government must live up to the agreement, and the plea agreement
can be enforced against the government.”
Pollard’s binding plea agreement required him to cooperate fully with
numerous polygraph examiners and intelligence investigators. This he did. In
return, prosecutors promised that while they would indeed request
substantial jail time, they would not ask for the maximum: life. Toward that
end, prosecutors promised to stress to the judge the spy’s post-arrest
cooperation with investigators and polygraphers, and limit their allocution
of facts to the circumstances of his espionage.
Prosecutors agreed to omit aggravating details of Pollard’s high
Israeli-paid lifestyle, suggestions of cooperation with South Africa, and
other aggravating factors that could easily inflame the sentencing judge to
mete out a longer term. As part of the overall deal, Anne, who assisted
Pollard’s espionage, would be shown leniency with a minimal term, and her
bail while awaiting sentence would not be opposed. The two agreements were
“wired,” that is, both Pollards had to comply with all provisions.
Both agreements also routinely required the Pollards to obtain specific
approval from the Director of Naval Intelligence for any media interviews or
publication. Clearly, the government’s intent was to restrict further
classified disclosures, including inadvertent ones, and basically deprive
the Pollards of any notoriety, prestige, income or other benefit that
interviews, books, or movies might bring. Such conditions are standard in
many plea agreements, especially those involving espionage. Keeping one’s
mouth shut and displaying remorse is the first priority when seeking the
mercy of the court.
But the Pollards tried to outsmart mercy. They decided to rally the American
Jewish community and massage public opinion, hoping to create outside
pressure on the judge and prosecutors to dispense a reduced sentence.
Without the knowledge of his attorney, Pollard granted two exclusive prison
interviews to Wolf Blitzer, the CNN journalist who was then Washington
correspondent for the Jerusalem Post. In these interviews, Pollard presented
himself as a highly motivated Jew determined to help Israel in the face of
an intransigent American intelligence community that was endangering the
“No Bumbler But Israel’s Master Spy,” the headline declared. Moreover, a
letter from Pollard ran on the front page of the Jerusalem Post decrying his
“judicial crucifixion,” and assuring “the gains to Israel’s long-term
security were worth the risks” he took. The letter even lamented the fact
that “no one has summoned the [Jewish] community to put a stop to this
The result of the interview was a disaster for Pollard, who infuriated the
government with his defiant stance.
After learning of one of the interviews, Pollard’s defense attorney, Richard
Hibey, is said to have shrieked so loudly into the phone, a partner rushed
in to see if he was hurt. As damaging as the Jerusalem Post interview was,
Anne Pollard’s interview with “60 Minutes” a few days before the scheduled
sentencing did far more damage. In that interview, Anne told the nation, “I
feel my husband and I did what we were expected to do, and what our moral
obligation was as Jews, what our moral obligation was as human beings, and I
have no regrets about that.”
Remorse now seemed a moot point.
Prosecutors Joseph diGenova and Charles Leeper were outraged, as was Judge
Robinson. So was Pollard’s now humiliated defense attorney Hibey, who was
expected to keep his client in line.
“I assure you, Judge Robinson got a videotape of the 60 Minutes interview
the very next day,” recalls Hamilton “Phil” Fox, one of Pollard’s subsequent
defense attorneys. “It was a classic case of how not to behave,” a senior
member of the prosecution team told this reporter.
Jewish officers throughout the American intelligence community were equally
incensed that the Pollards might make all American Jews seem disloyal.
“There are more than a few Jews loyally and quite properly serving their
country in intelligence,” explained one highly placed Jewish intelligence
analyst. “None of us wants to be looked at cross-eyed when we walk into a
room, people wondering if we are the next Pollard. He had no right.”
Pollard’s antagonistic media gamble sealed his fate. He was now doomed.
Angry prosecutors would now manifest their rage and exact revenge. The
government could have thrown out the binding plea agreement, claiming the
Pollards breached the spirit of the media strictures. But with no plea
agreement, the government would have to start from scratch and prosecute the
case in a public trial, a source of great embarrassment. So instead,
prosecutors simply breached the plea agreement themselves to make sure
Pollard was thrown in jail for life.
Prosecutors were obligated by the plea agreement to confine their arguments
to the details of the crime and make no effort to provoke a life sentence.
Instead, in a memorandum to the judge originally classified “secret,”
prosecutor diGenova castigated Pollard for “attempts to glorify his actions”
and declared: “This pattern of public relations gambits undertaken by
defendant … has demonstrated that he is … contemptuous of this Court’s
Such complaints were outside the four walls of the binding plea agreement.
But prosecutors wanted the judge to grasp that Pollard was trying to go over
the court’s head to publicly or politically pressure a reduced sentence. Any
judge would be incensed.
For reinforcement, diGenova presented an unprecedented last minute four-page
affidavit from Secretary of Defense Weinberger who essentially asked for
“life imprisonment,” even though the plea agreement expressly prohibited
such a request. Life sentences had been dealt just months before to several
notorious spies. Weinberger’s affidavit made clear to the judge, “It is
difficult for me, in the so-called ‘year of the spy’ to conceive of a
greater harm to national security.” The message was clear: give him life,
regardless of the plea agreement.
At the sentencing on March 4, 1987, prosecutors again emphasized that
Pollard was a deceitful and outrageous media manipulator, hammering at the
Judge Robinson was “steamed, really steamed,” recalls a senior member of the
prosecution team. Pollard’s attorneys thought he would receive 15 to 17
years in jail, perhaps as many as 25. But Judge Robinson ignored the
prosecution’s clear violation of the binding plea agreement and agreed that
Pollard deserved the worst punishment possible.
When he announced “life” for Pollard, Anne collapsed in hysteria, only to be
lifted by guards to hear her own five-year sentence.
Pollard was taken away to begin his life sentence.
THE DEFENSE FAILURE
Actually, what might have saved Pollard from a life term would have been
several seemingly obvious moves by his attorney, Richard Hibey. He should
have objected to the government’s breach of its plea agreement and excessive
sentencing by Judge Robinson, insist many legal authorities. Most damaging,
in the wake of all the errors and breaches, Hibey never filed the simple
one-page Notice of Appeal form within the requisite 10 days. The damage was
as good as permanent. By not filing the appeal form, Hibey assured there
would never be legal recourse to undo the grievances.
“After a defendant has been sentenced in a federal case,” explained Abraham
Abramovsky, a Fordham University professor of criminal law who has studied
the Pollard case, “he has only 10 days to file a notice of appeal from the
sentence. If he fails to do so, he can never again file for direct appellate
review, no matter how outrageous the error.”
At least three members of Congress are among the long list of eminent
reviewers who agree. Representatives Anthony Weiner (NY), Jerrold Nadler
(NY) and Janice Schakowsky (IL), signed a November, 2000 letter to
then-president Bill Clinton complaining of a “very disturbing picture of
serious misconduct that appears to have gone unchecked by Mr. Pollard’s
then-counsel. … Perhaps most troubling, after Mr. Pollard had been
sentenced to life in prison, his attorney failed to file a Notice of Appeal,
a simple and straightforward task that a competent attorney would routinely
have done. By that failure, Mr. Pollard’s then-counsel appears to have …
doomed Mr. Pollard to an unreviewed sentence of life in prison.”
In addition, Hibey did not call for an evidentiary hearing on the
last-minute affidavit by Secretary Weinberger using language essentially
signaling a life sentence and justifying it with the assertion, “It is
difficult for me, in the so-called ‘year of the spy’ to conceive of a
greater harm to national security.”
During a May, 2002 interview with Caspar Weinberger regarding his recent
published memoir, In the Arena, this reporter asked Weinberger why the
Pollard incident was left out of the book. Weinberger casually replied,
“Because it was, in a sense, a very minor matter, but made very important.”
Asked to elaborate, Weinberger repeated, “As I say, the Pollard matter was
comparatively minor. It was made far bigger than its actual importance.”
Pressed on why the case was made far bigger than its actual importance,
Weinberger replied, “I don’t know why, it just was.”
Had Hibey called for an evidentiary hearing on Weinberger’s damning
affidavit, its veracity could have been assessed.
In response to Weinberger’s startling admission some 15 years later, Malcolm
Hoenlein, executive vice chairman of the Conference of Presidents of Major
American Jewish Organizations, declared, “This raises serious questions
about Weinberger’s sworn comments at the time, which now seem contradictory.
I wish he had made this clear years ago.”
Moreover, Hibey failed to object to the repeated prosecution assertions that
Blitzer’s interviews with Pollard were unauthorized, a notion that seems
impossible since they were conducted with the permission of the Department
of Justice and Bureau of Prisons inside the prison itself. All journalists
are subjected to rigorous bureaucratic and security screening before being
granted access to prisoners.
In addition, a legal advisor to Director of Naval Intelligence confirmed to
me, “If the DNI approves the request, the Bureau of Prisons [BOP] sends you
written permission. … that written authorization is all that you need —
the DNI’s permission is implicit in the BOP authorization.”
More than failing to object to the characterization of Blitzer’s interviews
as unauthorized, a demure Hibey conceded to the judge in open court, just
moments before the final sentence: “The action was ill-advised,
unauthorized, there is no question about that in my mind. … Yes, your
honor, you are correct, that it was done without the pre-clearance
Pollard’s new pro bono attorneys, Eliot Lauer and Jacques Semmelman, filed a
recent motion complaining that “Hibey did not protest, either in writing or
orally at the sentencing, that by asking for life in prison in this manner,
the government had violated the plea agreement.”
Judge Leighton, who reviewed Pollard’s case on the Hibey issue, was among
those who filed a declaration with the court asserting Pollard was denied
due process during his sentencing. “The evidence shows,” wrote Judge
Leighton, “that the government engaged in serious misconduct that went
unchecked by an ineffective defense counsel, Richard Hibey, and that these
constitutional violations severely prejudiced Mr. Pollard, and resulted in
his sentence of life in prison.”
Added to Pollard’s woes has been his conduct while seeking clemency. Every
attempt to gain presidential clemency, spearheaded by Israeli prime
ministers and American Jewish leadership has been thwarted. Why?
The same inexplicable behavior streak that caused him to alienate his
prosecutors, judge and defense counsel, has been visible during Pollard’s 17
years of incarceration. Although most convicts seeking early release learn
to conduct themselves passively and speak in a fashion that will play to
parole boards, Pollard has gone on the offensive. Pollard’s voluminous
handwritten letters to supporters insult the integrity of prosecutor
diGenova, and bitterly challenge the commitment of American Jewish and
Israeli leaders petitioning for his release. For example, on May 24, 2001,
Pollard wrote an open letter to Israeli president Moshe Katsav about a
meeting with President George Bush. “Even if you were to bring up the issue
of my release with Bush yourself as you claim, your past record on my case
leaves no room for doubt that you would not do so in a serious or effective
manner. Rather just so that you can return to Israel and claim that you
brought it up but were unsuccessful.”
When in late 1999, Israel Prime Minister Ehud Barak asked his Minister of
Diaspora Affairs to meet with Pollard’s second wife, Esther, Pollard issued
a statement: “I was shocked at the Government’s sleazy attempt at deflecting
public attention away from the fact that Prime Minister Ehud Barak will
absolutely not take any responsibility for bringing this agent home. …
They are sending the lightest of the lightweights, which will be … treated
as a joke in Washington. … The point is this: I am an Israeli agent who
worked for the Ministry of Defense. As such, it is up to General Barak, who
is now Prime Minister Barak, to get me home and nobody else.”
Pollard’s Israeli attorneys ultimately filed a lawsuit against Barak for
non-responsiveness, seeking, among other things, to compel him to meet with
Pollard’s wife and issue weekly reports on efforts to obtain his early
Not a few in the Jewish community have been harassed by Pollard supporters
For straying from the Pollard camp’s line. For example, in 1993, David
Luchins, a senior advisor to Sen. Daniel Moynihan’, became embroiled in a
tactical dispute over Pollard’s seeking a parole, and also a letter of
remorse obtained by Rabbi Aaron Soloveichik of Chicago. The late Rabbi
Soloveichik was considered one of American Judaism’s most revered rabbinic
authorities. The letter was a Congressional initiative to secure
presidential commutation. But after Pollard signed, he reportedly expressed
regret over a portion of the letter that apologized for violating Jewish
law– to the utter dismay of those who had organized the letter. Luchins’
life was threatened by Pollard supporters, who circulated a flyer one press
report dubbed a Salman Rushdie-style religious decree calling for Luchins’
murder. A source close to Sen. Moynihan says federal marshals were summoned
to protect Luchins.
Observers say it is understandable for an embittered Pollard to lash out,
since he is facing a harsh life term. But legal experts consider it
inadvisable for a man seeking clemency to offend those needed to champion
JUSTICE FOR POLLARD
Despite the noisome and self-defeating tactics by Pollard and some
supporters, it is entirely believable that the legal establishment ran
roughshod over his constitutional rights–and in broad daylight, with the
In one of Pollard’s early unsuccessful efforts, federal judge Stephen F.
Williams dissented, writing, “The government’s breach of the plea agreement
was a fundamental miscarriage of justice. … Pollard’s sentence should be
vacated and the case remanded for re-sentencing. …the fault here rests
upon the prosecutor, not on the sentencing judge.”
Yet attempts to obtain juridical justice for Pollard have faltered over the
years. One of his early attorneys, Hamilton “Phil” Fox III, moved to
withdraw Pollard’s guilty plea in 1990. Fox, a former assistant U.S.
Attorney himself, charged that the government breached its plea agreement.
But the court refused his effort, citing the absence of any original
objection by Hibey in 1987. The only way for Fox to get around that
stumbling block was to assert that Pollard had been denied “effective
assistance of counsel,” in other words, claim Hibey deprived the spy of his
“Indeed, that was the first thing under consideration, ineffective
assistance of counsel,” recalled Fox in an interview. “When I interviewed
Hibey, he did ask me if I would raise the question of ineffective assistance
of counsel. I said if I did, I would let him know. Actually, at about that
time, my assistant was working on a memo on that very topic. But we thought
there was no chance under Supreme Court guidelines … which sets an
extremely high standard. So we never did it.”
But more than just not raising it, Fox went out of his way to praise Hibey.
“We do not challenge the government’s claim that Pollard’s prior counsel
skillfully negotiated a plea agreement and effectively allocuted for his
client,” wrote Fox in his pleading. “Our criticism is not of prior counsel
but of the government’s failure to live up to its side of the bargain.” This
conspicuous praise for Hibey has caught the attention of more than one legal
expert, who question how Fox could make such a unilateral concession.
Lauer’s and Semmelman’s pleadings assert that an old-boy network was at
work. Judge Leighton’s declaration on Pollard agrees, stating, “I doubt that
the bar in the District of Columbia is any different from … other cities.
Certain lawyers will simply not attack or criticize another member of the
bar, especially one who practices in the same specialty. … Many such
lawyers will not … risk ostracism within their professional community by
accusing a fellow lawyer of ineffective representation in any case — much
less a high profile case, as this one was.”
Fox, aware of the insinuation, told this reporter, “I have never gotten a
single referral from Hibey” and reminds, “remember, we took a shot at a
sitting judge.” Asked why he wrote those words of unsolicited praise for
Hibey, Fox replied, “I just don’t know why I wrote those words.” Asked to
explain why Hibey did not file the all-important ten-day Notice of Appeal,
Fox speculated, “it probably didn’t occur to him.”
A flabbergasted Semmelman commented, “How can a former assistant U.S.
Attorney fail to immediately file a Notice of Appeal from a life sentence?”
Indeed, one current assistant U.S. Attorney who years ago briefly worked on
the Pollard case, said “Yikes” when informed that Hibey had not filed the
Hibey, called one of Washington’s most effective lawyers, now practices with
the mega law firm Winston & Strawn. He has declined to reply to the legal
and Congressional challenges to his representation of Pollard. And Hibey did
not reply to repeated requests for an interview. At one point, this reporter
sat in the reception area outside his Washington office for five hours
waiting for a spare moment to posit questions. Hibey refused to meet.
Lauer said he was “eager to have the court conduct a hearing and put Hibey
on the stand to explain his conduct.”
But juridical justice for Pollard has been frustrated over the years because
so many in the Department of Justice and cooperating intelligence
establishments have become so hardened against the spy. Pollard advocates
say he has never sought parole because he believes the system is stacked
against him, though critics believe it is because he would have to express
unequivocal remorse for his actions.
Lauer and Semmelman, the latest and best hopes for Pollard, have filed
mountains of motions. Direct appeals are not possible, so they are seeking
habeas corpus on the basis of ineffective assistance of counsel. In other
words, they are asking that Pollard be re-sentenced in accordance with his
plea agreement, which could theoretically result in yet another life
sentence (although most scholars think that is doubtful after 17 years).
Lauer and Semmelman have been frustrated at every step by protracted delays,
refusals and volumes of hair-splitting government legal arguments. Lauer and
Semmelman can’t even get an evidentiary hearing. “If we could only get the
court to give us a hearing,” says Lauer, “we could subpoena documents and
take testimony, and once and for all establish the facts.”
A MATTER OF LAW
Jonathan Pollard is grasping what may be that last straw now. In a
wide-ranging 90-minute exclusive interview–his first in years–Pollard
presented a jumble of emotions and mixed messages about his original
motives. But he was clear about his predicament. Asked if he regretted his
espionage, Pollard focused hard and replied, “I don’t think regret is strong
enough a word to use. No one who has seen what has happened to me over the
past 17 years could possibly say I feel good, to any degree, over what I
Did he regret his transgression or just being caught? “The transgression,”
he quickly answered. His explanations for his crime wandered, but were
summed up with the painful admission, “Whether this was done to Israel or
that was done to Israel–you know what, that’s not my responsibility
anymore. … I fought that battle with myself 17 years ago, and you know …
I lost that battle and I’m not going back to it. I’ve been destroyed and I
destroyed a lot of people around me.”
That statement is irrefutable. But the tragedy of Jonathan Pollard
continues, in part self-inflicted, evidenced by his daring the prosecutorial
establishment to put him away forever, even at the risk of bending or
breaking due process. That is exactly what happened.
Over the years Pollard seems to have lost his faith in political paroles and
magical commutations. No doubt he has come to realize his only hope is the
rule of law, and whether or not he deserves public sympathy, it is clear he
deserves his hearing on habeas corpus — because the American way of justice
Sidebar:Face To Face With The Pollard
The Federal Correctional Institution at Butner, NC, nestled within a
woodland and meadow perimeter, appears trim and proper. Its housing units
and yard are spotless, groomed, and in many ways resemble a YMCA locker
room. There are no bars on the cells, only steel doors with small windows.
Prison officials understand they are holding a high-profile convict.
Visitors are treated with extreme courtesy and professionalism within the
confines of a medium security facility. But make no mistake, this is highly
regimented prison. Hell can also be an antiseptic place.
Pollard himself, wearing a yarmulke, appeared in the interview room with all
the verve of a dinner host. His mental faculties are razor sharp.
Subscriptions to numerous Jewish newspapers and magazines, as well as
constant attention to National Public Radio and CNN, keep Pollard informed
about world events up to the minute. He devours books on a multiplicity of
Why have you alienated so many who try to help you, I asked?
“It’s a sore subject,” he replies. “For the first 10 years of this case, I
worked quietly and behind the scenes to advance basically a political agenda
to get myself out of this jam. … hopefully, some kind of deal between the
Israeli government and the American government to secure my release ….
During the course of this initiative we got to know an awful lot of Jewish
leaders here in the United States … and they seem to fall into one of
several groups in their response to me. Some ran away from it…. Others
promised to do things but basically didn’t… and others did harm. … I
didn’t really know how to react to these guys because I never had anything
to do with these people before. I was naïve.”
Asked if he would continue attacking those who tried to help, he replied,
“I’m looking for help wherever I can get it. I am thankful for anybody who
can do anything constructive to help me.” He explained, “I’ve only tried to
correct the record when people say things that are not correct or allege
that I’ve done things that I haven’t done, or misstate my case, misrepresent
my intentions and my agenda. I want help and I need help. When people say
we’re going to help you, they come here and they look at me …I’m in the
pit and they look over and they say, ‘Jonathan, we’re going to get help for
you.’ That sets off [in me]… you can’t imagine–I hope you’re never in a
situation like this, where all you’re doing is staring up through a pit, an
opening, praying that the person who just made you a promise, looking down
at you, was sincere.”
Asked if he thought he should be freed as a “Jewish patriot,” or because he
was denied due process, Pollard decisively replied, “Denied due process.” He
was pressed, “What about the ‘Jewish patriot’ part?” Without hesitation, he
responded, “That’s irrelevant. … It has absolutely nothing to do with it.”
Pollard was then asked, “So those many organizations which rally for you and
say you’re a Jewish patriot, you wish them to stop?” Pollard replied, “I
wish them to focus on the merit of our case. The legal merit.”
What would he do if he was released? “I’ve learned an awful lot over
the past 17 years,” says Pollard. “I’ve grown quite a bit. I’ve learned the
whole notion of consequences. My only interest when and if I get out is to lead
as productive a life as possible. … I’d like to leave this behind me. This
case and everything associated with it is the source of unmitigated, unqualified
horror to me.” He added that he has zero intention of writing a book, granting
interviews on intelligence matters, or attacking those he senses failed to
expedite his release.