When Ruth Bader Ginsburg got it wrong on Pollard
OCT 1, 2020
Jonathan Pollard speaks during an interview, Friday, May 15, 1998, at the Federal Correction Institution in Butner, N.C. (AP Photo/ Karl DeBlaker) RIGHT: Supreme Court nominee Judge Ruth Bader Ginsburg prepares to testify in her confIrmation hearing at Capitol Hill on Tuesday, July 20, 1993 in Washington before the Judiciary Committee.(AP Photo/Doug Mills
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Pollard agreed to plead guilty to “one count of conspiracy to deliver national defense information to a foreign government” (in this case, an allied country), waive his right to trial by jury (which saved the government time, money and the discussion of sensitive information), cooperate with damage assessment, submit to polygraph examinations and criminal interviews. In return, in addition to not charging him with other crimes and entering into a plea agreement with his wife (which would otherwise not have been offered), the prosecution made three crucial promises: (1) to bring to the Court’s attention the nature, extent and value of his cooperation and testimony, representing that it was of considerable value to the government’s investigation, damage assessment and enforcement of espionage laws, (2) to recommend “a substantial period of incarceration” (but not the maximum penalty of life imprisonment, the usual sentence for this offense being no more than 6-8 years and actual jail time averaging 2-4), and (3) to limit its allocution to “the facts and circumstances” of Pollard’s crimes.
The prosecution, nevertheless, submitted to the Court a classified and unchallengeable 46-page memorandum from Weinberger cataloguing the “substantial and irrevocable” damage inflicted. The day before sentencing it submitted his unclassified supplemental declaration asserting that even in a year in which several spies for the United States’ main adversaries had been apprehended, it was difficult to “conceive of greater harm to national security,” and that Pollard’s punishment “should reflect the perfidy of his actions [and] the magnitude of the treason committed.”
Mindful of Ginsburg’s appointment to the Supreme Court a year later, Pollard’s father wrote a bitter letter to the editor quoting a statement that he attributed to Professor Ruth Wisse: “Modern Jewish courtiers have made a specialty of sacrificing their fellow Jews for the sake of their own advancement or to win the approval of other people.”
The three judges went on to long illustrious careers on the bench. Williams died of COVID-19 in August. Ginsburg survived metastatic colon cancer but succumbed to pancreatic cancer on Rosh Hashanah eve. Silberman is currently a Senior Judge in the D.C. Court of Appeals.
Weinberger was indicted on five felony charges related to the Iran-contra affair, including perjury and obstruction of Congress, but was pardoned by President Bush (Senior) before the trial. He omitted his involvement in the Pollard case from his memoirs. Questioned by a journalist about the omission, Weinberger nonchalantly responded, “because it was … a very minor matter … made far bigger than its actual importance.” Asked why so, he replied “I don’t know why – it just was.”
As for Pollard, the Supreme Court refused to hear his case. All requests of clemency by Israeli prime ministers to different US presidents were denied. The only American to ever receive a life sentence for spying for an ally, he became eligible for parole and was released after thirty years, many of which he spent in solitary confinement. His parole conditions included not owning a smartphone, “unfettered monitoring and inspection” of his computers and those of any employer and a requirement to remain in the United States (and thus not make aliyah as he intended) for five years. These terms are due to expire next month but could be extended. Stay tuned.
About the Author
Julio Messer is a former president of American Friends of Likud.
When Ruth Bader Ginsburg got it wrong on spy Jonathan Pollard
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