Passover and Pollard

Kenneth Lasson

April 24, 1992|By Kenneth Lasson

PERHAPS the most symbolic of all Jewish holidays, Passover above all celebrates redemption.

This is the time to remember deliverance from Egypt, to appreciate the renewal of spring, to contemplate the meaning of freedom.

For Jonathan Pollard, the American found guilty of passing classified information to Israel, Passover is even more poignant. Still three years shy of 40, he sits in solitary confinement in a mum-security federal penitentiary, having been sentenced to life in prison with a recommendation that he never be paroled.

No one, not even Pollard himself, argues his innocence -- only about the severity and disparity of his punishment. The average term given to those convicted of spying for hostile foreign countries is 12 years; for giving secret data to friendly nations, four.

Last month came a split decision of the United States Court of Appeals for the District of Columbia. The two judges in the majority -- wholly through an analysis of procedural technicalities that even law professors found hard to fathom -- rejected Pollard's petition to have his term reduced. "The issue before us is not whether a life sentence was appropriate punishment for Pollard's crime," they wrote, "still less whether we ourselves would have imposed such a sentence."

Unfortunately for Pollard, their cold dissection of legalistic niceties simply missed the forest for the trees.

Not so their brother, Judge Steven Williams, who perceived with crystal clarity the plain injustice of Pollard's plight. His sharply dissenting opinion fairly rang with its determination to avoid exalting form over substance, to focus instead upon the issue of fundamental fairness.

Judge Williams found that the government reneged on each of the explicit promises it had made to Pollard in return for his cooperation -- in particular, that the prosecutors broke their promise to ask the court for something less than the maximum sentence.

The government engaged in "flagrant violation of the agreement's spirit" when it presented highly prejudicial and inflammatory memoranda from then-Secretary of Defense Caspar Weinberger -- documents that Pollard's attorneys were not permitted to challenge.

It was Judge Williams alone who perceived the gross injustice that should have been rectified here, even given the narrow procedural difficulties in whose web his fellow judges found themselves inextricably bound.

Judge Williams also recognized that to allow "niggling" interpretations of plea agreements would render them virtually useless to future prosecutors. "If fulfillment of the promise is to mean anything, it cannot refer only to the promise pared to its literal bone." In other words, the government will never be trusted if it is permitted to weasel out of bargains ostensibly based on good faith.

We may never know what went on between Pollard's prosecutors and the State Department, nor among the judges behind their chamber doors. But there had to have been considerable high drama and heated disputes. Ordinarily judges in the majority do not cite (nor defend themselves against) specific arguments raised in dissenting opinions.

That they did so here, and on more than one occasion, indicates the depth of their disagreement.

As in the Book of Exodus, the biases and fallibility of human judges are bound up in dramatic paradoxes. It is ironic, to say the least, that the two majority judges (Ruth Bader Ginsburg and Charles Silberman) are Jewish and that Judge Williams is not, and that the appeal was heard on Rosh Hashana, the Jewish New Year. It is no less incongruous that Israel, the prime beneficiary of Pollard's classified data about Iraq's chemical and nuclear capability, refused him the asylum of its embassy -- nor, for that matter, that the Jewish people, whose latest incarnation as a state can be dated to the liberation of Buchenwald 50 years ago, are still seeking a secure place in the community of nations some 3,000 years after their deliverance from Egypt.

Such ironies, though, are the stuff of punditry and conjecture.

Few Americans, Jewish or otherwise, would liken Pollard to Macbeth, but Judge Williams did. The case reminded him "of Macbeth's curse against the witches whose promises -- and their sophistical interpretations of them -- led him to doom:

'And be these juggling friends no more believ'd,

That palter with us in a double sense;

That keep the word of promise to our ear,

And break it to our hope.'"

The sadder, more demonstrable irony is that Jonathan Pollard must celebrate this season of hope still waiting for redemption and deliverance, still gazing out upon the flowers of spring through the iron bars of a sweltering prison cell -- just as he has for the past six years of his life.

Kenneth Lasson is a professor of law at the University of Baltimore.

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