The Wall Street Journal is reporting that the Obama Administration is preparing to release one of this country’s most notorious spies in an effort to placate Israel in the aftermath of Iranian agreement. Jonathan Pollard, an Israeli spy, betrayed his country and was arrested as he attempted to flee to the Israeli embassy in 1985. He was not only convicted of espionage but the Justice Department and intelligence agencies have long maintained that he did untold harm to the national security. The question of the release of Pollard has always raised interesting political, social, and legal questions. Thirty years is certainly not an insignificant amount of time and Pollard reportedly has health issues. My greatest concern is one of special treatment, particularly on sentencing policy for other national security cases. (For full disclosure, I have handled and continued to serve as lead counsel in national security cases).
For some the release comes at a time of tension over Israeli spying operations against the United States. Israel has long been accused of being one of the greatest sponsors of espionage against the United States, including recent reports ranking it among the top most active countries targeting the United States. The alleged concession will not sit well with some people who will argue that we should not trade away spies to appease other nations upset with our foreign policy. This would not be a spy swap with Russia but what the Wall Street Journal is suggesting is a concession prize to help political relations both inside and outside the United States. Particularly given the opposition to the Iran deal itself, the release would be viewed by many as too high a price for political relations. After all, the United States still gives Israel billions each year in aid, including massive military support. However, the Administration is framing the issue as a routine release after serving 30 years for the espionage. On its face, the Pollard case file contains elements that have always worked against leniency, particularly in the relations with Israel after his arrest. Pollard reportedly stole tens of thousands of documents for Israel and allegedly sought to broker arms deal with the governments of South Africa, Argentina, and Taiwan. He eventually agreed to cooperation in exchange for a deal for his wife and a reduction of charges. In the meantime, Israel insisted that they did not run Pollard as a spy and that he was part of an unauthorized operation — a suggestion that has been widely questioned. However, the case has also been colored by bad blood between Israeli and American intelligence officials over the case. When asked to return the material, U.S. officials accused Israel of giving back a small amount of low classified documents and then abusing a U.S. team sent to retrieve more documents. There were even allegations that Israeli intelligence stole material from the U.S. team sent to Israel. It has also refused to release the name of his handler. This record contributed to a long and fervent opposition by intelligence officials to the release of Pollard. There has been a long effort to release Pollard both by the Israeli government and Jewish organizations in the United States. Many of his advocates have insisted that he gave intelligence to an ally and the harm was not as severe for that reason for the United States. Others have argued that, given his cooperation, 30 years is more than enough time.
The question of his release date raises an interesting question. It is also worth noting that, while Pollard was given a life sentence, in June 1987, the laws in effect at the time of Pollard’s sentencing set parole after 30 years for federal life-sentence inmates. That would put his release date at November 21, 2015. However, he is still subject to the discretion of the Commission and is only subject to release in the absence of significant prison regulation violations or a “reasonable probability” of recidivism.
This is a palpable mistrust of the statement made by the Administration over the discussions with Israel. National Security Council spokesperson Alistair Baskey insisted that Pollard’s prison status “will be determined by the United States Parole Commission according to standard procedures. There is absolutely zero linkage between Mr. Pollard’s status and foreign policy considerations.” Zero linkage? If Pollard is released on the heels of the Iran deal, it would be viewed by many as an amazing coincidence. Moreover, Baskey’s statement raises yet another question of whether the Administration is too cavalier with the truth of statements to the American people. Is the Administration denying that the release has been discussed with Israel? The Administration is clearly gearing up to treat the November date as a release date to suggest that it has done nothing special for Pollard. The Justice Department released a tough sounding statement by spokesman Marc Raimondi statement that, if you read it closely, suggests that it will no longer oppose release: “The Department of Justice has always and continues to maintain that Jonathan Pollard should serve his full sentence for the serious crimes he committed, which in this case is a 30-year sentence as mandated by statute.” The question is whether the Justice Department will take the same position in other cases in national security cases. The Justice Department often challenges such constructive release dates and arguing that changed policies or practices can extend sentences. If there is any discretionary decision, it is notorious for opposing any release in major criminal cases.