The Penalty Has Gone Beyond the Crime : Jonathan Pollard: It would aid the causes of fairness and Mideast peace to pardon him.

I was involved in the early stages of the Jonathan Pollard case as counsel for an Israeli Air Force officer implicated in the affair. I withdrew for reasons that are not related to this article; they involved disagreements with Israeli counsel about negotiations for a disposition of the officer’s case with the U.S. Justice Department.

I believed then, as I do now, that Pollard committed a grave wrong and deserved appropriate punishment. Pollard himself has long since admitted his guilt, explicitly recognized the harm he caused and acknowledged the gravity of his wrongdoing.

Though Pollard was eventually given money, on the initiative of his handlers, it is generally recognized that money was not the motive for Pollard’s decision to transmit U.S. intelligence information to Israel.

I believe the persistent and now widespread concern about Pollard’s fate among both Jews and non-Jews stems primarily from the fact that the most significant of the documents Pollard gave Israel a decade ago are known to have contained information about Iraq’s growing capacity for nuclear, chemical and bacteriological warfare. These weapons, as no one any longer has reason to doubt, were meant first of all for use against Israel.

This life-and-death information was deliberately withheld from Israel by the U.S. government, some of whose defense and national security officials were trying to establish closer ties with Iraq at the time. Americans who know these facts are not shocked that Pollard tried to change the situation, though they unambiguously condemn his means. They are also deeply disturbed that the U.S. government chose not to pass along this deadly knowledge about Iraqi capabilities.

The “crime” of silence has been one of the great moral issues of the post-Holocaust 20th Century. It is, therefore, no surprise that the Pollard question does not die.

This case does not turn on issues of fairness, though in fact there has been great unfairness. The Justice Department promised, in exchange for Pollard’s guilty plea, to restrain its prosecutorial rhetoric at his sentencing. The department failed to do this, most conspicuously by presenting the sentencing judge with a crucial affidavit from Defense Secretary Caspar Weinberger, falsely accusing Pollard of treason and thus misusing the most inflammatory word in the criminal lexicon. Pollard did not commit treason and was not charged with the crime of treason, the act of aiding an enemy in time of war.

Pollard is also the only offender in U.S. history to be sentenced to life in prison for aiding an ally. He has already served a longer term than any other person ever convicted of illegally providing information to a friendly nation--eight years, most of it in solitary confinement at the maximum security prison in Marion, Ill.

All three judges of the Court of Appeals panel that considered Pollard’s appeal said that the prosecutors’ behavior raised serious questions of fairness. But the two-judge majority voted against Pollard, saying that his late appeal required much higher standards of proof of prosecutorial misconduct. The dissenting judge, Stephen Williams, said that applying even the most stringent standards to Pollard’s claim, the government’s actions were such a “fundamental miscarriage of justice” that the sentence should be overturned.

All of these issues are serious, but what is most important about the Pollard case is what it conveys to Israel about this country and its president. Peacemaking in the Mideast has often been made more difficult by Israel’s uncertainty about whether American policy-makers understood its acute fears for survival. The Mideast peace process will be advanced if President Clinton’s decision reflects not only his sense of compassion and fairness but also his awareness of the special history that burdens all efforts to achieve a Mideast peace.

There are voices suggesting a compromise that would release Pollard in 1995, when he is currently scheduled for his first parole hearing. But Israeli Prime Minister Yitzhak Rabin has twice asked President Clinton to commute Pollard’s sentence; he needs a concrete act of support now, not two years down the road.

This is the time for presidential wisdom, not for capitulation to the pressure of the prosecutorial, military and intelligence Establishments to justify their past actions.