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Should Pollard Be Freed?

If he deserves it, yes; as a diplomatic chip, no

Marc Tracy
January 06, 2011
Jonathan Pollard.(Haaretz)
Jonathan Pollard.(Haaretz)

“I think it is important to underscore that Mr. Pollard was convicted of some of the most serious crimes that anybody can be charged (with),” said outgoing White House press secretary Robert Gibbs. He was, of course, referring to Prime Minister Netanyahu’s request that President Obama free Jonathan Pollard, the American convicted in 1987 of spying for Israel and sentenced to life imprisonment. Those who want Pollard freed—many of them organized, remarkably, by a 25-year-old volunteer—probably don’t feel particularly comforted. But a decision has apparently not yet been made.

What is nice about the understandably charged debate is that it seems to be playing out largely outside the confines of the U.S.-Israeli relationship and the Israeli-Palestinian peace process. Instead—and contrary to the misguided wishes of some—it is properly boiling down to an argument over what one specific criminal’s exact crimes were, and how much punishment those crimes merit. Lovers of justice should be pleased.

First, the “Free Pollard” side. Former deputy defense secretary Lawrence Korb (now of the Center for American Progress) several months ago called for Pollard’s release, saying Defense Secretary Caspar Weinberger’s anti-Israel bias played an outsize role in Pollard’s harsh sentence; Gil Troy made the case for Pollard’s freedom in Tablet Magazine; 39 Democratic congressmen also lobbied for it. Since Bibi lodged his request (“Honourable president, in the name of the Israeli people I am turning to you”), Harvard Law Professor Charles Ogletree—the president’s onetime mentor—also wrote in arguing for a pardon. Former Attorney General Michael Mukasey is also on-record on this side. Pollard’s defenders argue not that the honorary Israeli citizen was wrongly convicted—Netanyahu himself states, “Jonathan Pollard was acting as an agent of the Israeli government,” which government’s “actions were wrong and wholly unacceptable”—but that Pollard’s 25 years behind bars are commensurate with his crimes when you compare them to the offenses and terms of others who spied for friendly nations.

On the other side is much of the intelligence community, which insists that a full accounting of Pollard’s crimes would show them to be far more severe than most expect, and eminently deserving of a life term. A lawyer who had been involved in the case recently argued as much, and in 1999, investigative reporter Seymour Hersh, relying on intelligence sources, argued, “[His] supporters are mistaken in believing that Jonathan Pollard caused no significant damage to national security.” Earlier this week, the ex-U.S. Attorney who prosecuted Pollard noted a Pentagon estimate that Pollard cost the U.S. between $3 and $5 billion and insisted, “That the country he spied for is seeking clemency is not only unprecedented, it is a joke.” Top intelligence hands from both parties (Sandy Berger, Geroge Tenet) have been reported as adamant that Pollard ought to stay in jail.

What I—who know little about the particulars of the Pollard case and next-to-nothing about U.S. intelligence law—cannot understand is why some Americans wish to see Pollard used as a chip: Most typically as a carrot, in which Pollard’s freedom is traded for some Israeli concession (this would have been the settlement freeze extension, before all sides gave up on that). It is one thing when the U.S. and other countries trade other countries’ spies for their own spies, which makes an internal logical sense. But to make one person’s life a part of grand diplomacy simultaneously elevates his stature and robs him of his humanity. Besides, simple justice dictates that if Pollard has served his appropriate time, he should be let go, and if he hasn’t, he shouldn’t be. Answering that question is tricky, but it is purely forensic—the normative principle of justice is set in stone (pun intended).

I can’t let this blogpost, by Steve Clemons, go uncommented upon. “If Netanyahu were to commit to collapse his government, reassemble with sensible pragmatists in the Knesset, and deliver definitively on an internationally-accepted two state arrangement between Israel and Palestine, then I would support releasing Pollard to the Israelis,” Clemons writes (“Steve Clemons asks a modest price,” Ben Smith quipped).

All due respect, but what planet is Clemons living on? He really thinks Netanyahu can do the political equivalent of snap his fingers (“Israelis and Palestinians say that they could do a deal—if both were serious—in just a few months,” Clemons relates, apparently credulously) and literally bring peace to the Middle East? I had heard that bringing peace to the Middle East was considered more difficult to achieve than that. And what if Netanyahu makes the good-faith effort Clemons demands of him and peace is not achieved because the Palestinian Authority won’t cut “the deal,” or Hamas takes over the West Bank after it does, or the Israeli people vote Netanyahu out before he can? Then I suppose Pollard would stay in jail anyway, because he would no longer be of use to us? Or would that instead be an argument for his freedom?

And why is it so easy for a neophyte like me to pick apart an ostensible foreign policy expert’s reasoning?

Far more sensible is James Besser’s suggestion: Either free Pollard, or keep him and explain—disclosing as much as possible, and more than is currently disclosed—exactly why he deserves to stay there. As one of the citizens he spied on and who is now paying for his incarceration, I am ready to be persuaded either way. I am not ready to see my fellow citizen, or any other human being, reified for the sake of an ill-defined and extremely long-shot diplomatic gambit.

Marc Tracy is a staff writer at The New Republic, and was previously a staff writer at Tablet. He tweets @marcatracy.