A Prescient Must-Read!
Shockingly accurate as it decimates Weinberger memo prior to recent
declassification!
Doc: Clemency Letter to President Obama by Pollard Attorneys
Re: unjust, flawed parole process
Letter dated October 30, 2014 - Posted online February 23, 2015
This copy (full text below) posted at
http://jonathanpollard.org/2014/103014.htm]
VIEW ORIGINAL PDF DOCUMENT (http://www.jonathanpollard.org/2014/103014.pdf_

CURTIS, MALLET-PREVOST, COLT & MOSLE LLP
ATTORNEYS AND COUNSELLORS AT LAW
101 PARK AVENUE
NEW YORK, NEW YORK
10178-0061

October 30, 2014

President Barack H. Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Re: Deeply Flawed Parole Process for Jonathan Pollard

Dear Mr. President:

On January 9, 2014, after nearly 30 years in prison, our pro bono client
Jonathan Pollard applied to the U.S. Parole Commission (the "Commission")
for release on parole. A parole hearing was held on July 1, 2014. Parole was
denied.

An examination of the record reflects a disingenuous and deeply flawed
parole process that reached an unsound conclusion based on discredited
28-year old statements buried in a secret file, and in complete disregard of
compelling contrary evidence.

In March 2013, during an interview on Israeli television, in response to a
question about commuting Mr. Pollard's sentence, you stated that Mr.
Pollard's avenue of relief is the U.S. parole system, and you specifically
stated that Jonathan Pollard would be accorded a fair process, as any other
American:

"There is a justice system that allows for periodic review of his sentence
and the potential for him ultimately being released .... I have no plans for
releasing Jonathan Pollard immediately, but what I am going to be doing is
to make sure that he, like every other American who has been sentenced, is
accorded the same kinds of review and the same examination of the equities
that any other individual would provide ... I've got to make sure that every
individual is treated fairly and equally. " Here is a link to the interview:
http://bit.ly/1nNBqBk

The "review of his sentence" and "examination of the equities" Mr. Pollard
received at the hands of the prosecution and the Commission bore no
resemblance to the ideals of equality, justice and fairness you no doubt
intended in your televised statement.

Quite the opposite. At the parole hearing, the prosecution falsely asserted,
and the Commission accepted without scrutiny, that Mr. Pollard's activity
"was the greatest compromise of US security to that date." That allegation
was false. It was loosely based on 28-year old statements that have been
thoroughly discredited in multiple ways. The prosecution's statement went
wholly unchecked by an acquiescent Commission.

It is essential to note that the Commission is part of the very same
Department of Justice (DOJ) that has been prosecuting Mr. Pollard, and that
opposed parole at the July 1 hearing. The Commission's website is
www.justice.gov/uspc/, a sub-page of the DOJ's website, and the Commission's
email addresses use the domain name "@usdoj.gov."

At the parole hearing, the prosecution unfairly invoked secret evidence in
the form of a largely-classified declaration submitted to the sentencing
judge in 1987 by then-Secretary of Defense Caspar W. Weinberger (the
"Weinberger Declaration"). The prosecution asserted that the secret portion
of the Weinberger Declaration contained information sufficient to warrant
denial of parole. The information itself was not disclosed.

Despite relying heavily on the Weinberger Declaration as a basis for
opposing parole, the prosecution refused to allow Mr. Pollard's
security-cleared counsel access to the document. The prosecution was thus
able to freely characterize the contents of the Weinberger Declaration in a
manner extremely detrimental to Mr. Pollard, without allowing the defense a
fair opportunity to rebut the characterization.

Worse still, the prosecution chose to invoke the classified Weinberger
Declaration knowing full well that the members of the Commission lack
security clearances, and therefore would not have the opportunity to read
the document and reach their own conclusions. The Commission itself raised
no objection to the prosecution's tactic. Instead, it passively accepted the
prosecution's characterization without challenge.

Prior to the parole hearing, we had reviewed the Commission's file on this
case, and had seen that the prosecution was invoking the Weinberger
Declaration as its primary basis for opposing parole. We filed a motion with
the United States District Court for the District of Columbia, seeking
access to the Weinberger Declaration so that we could respond effectively on
behalf of Mr. Pollard at the parole hearing. Opposing access, the
prosecution argued, and the court ruled, that the court lacked jurisdiction
to allow us access to the Weinberger Declaration, but that the Executive
Branch has the authority to do so. (United States v. Pollard, No. Cr. 86-
207, ECF 101, Tr. Feb. 28,2014, at pp. 31-35.) The prosecution has
repeatedly invoked the Weinberger Declaration, not only in opposition to
parole but also in opposition to clemency. We therefore respectfully urge
you, as the head of the Executive Branch, to allow us access to the
Weinberger Declaration so that we may fairly respond to its use by the
prosecution.

In the nearly 28 years since the Weinberger Declaration was prepared,
considerable information has emerged that completely discredits its
reliability.

First, in recent years, senior U.S. government officials who served with Mr.
Weinberger in the Reagan Administration have come forward to describe Mr.
Weinberger's intense bias against Israel, and the distortive effect of that
bias on his characterization of Mr. Pollard's conduct, which led to the
unfair life sentence. The Commission disregarded these statements.

Second, in addition to these officials, a broad array of distinguished
former U.S. government officials- including a former Attorney General, two
former Secretaries of State, a former Director of the CIA, and four former
Chairs of the Senate Select Committee on Intelligence- have gone on record
as calling for Mr. Pollard's release in the interests of justice. Again, the
Commission disregarded these statements.

Third, Mr. Weinberger himself, in a published 2002 interview, downplayed the
Pollard case as "a very minor matter, but made very important." Thus,
whatever he might have been thinking in 1987, by 2002 he was thinking very
differently. And a 1987 CIA Study that was partially released in 2012
discloses that Mr. Pollard's espionage related to Israel's hostile Arab
neighbors and their military capabilities, resources, suppliers, and
advisers (especially the Soviet Union), but specifically excluded "US
military activities, plans, capabilities, or equipment."

So that you can understand more fully the deficiencies in Mr. Pollard's
parole process, as well as the unfairness of the Commission's denial of
parole and the appropriateness of executive clemency, we provide in the
attached Addendum a more detailed summary of the documentary evidence that
demonstrates that any fair "review" of the sentence and any fair
"examination of the equities" should have resulted in Mr. Pollard's release.
Mr. Pollard received neither a fair "review" nor a fair "examination of the
equities."

Mr. Pollard has been in prison for 29 years and is about to enter his 301
year of incarceration this month. His petition for executive clemency in the
form of commutation has been pending for four years.

For nearly three decades, the DOJ has failed to provide fair treatment for
Mr. Pollard despite the manifest injustice of his grossly disproportionate
sentence. Contrary to your stated desire to see that "every individual is
treated fairly and equally," Mr. Pollard has been singled out for uniquely
unfair treatment.

We therefore respectfully ask that you heed the urgings of so many
distinguished Americans, and that you exercise your
constitutionally-mandated authority to terminate this longstanding injustice
by commuting Mr. Pollard's sentence to time served.

[signed]
Eliot Lauer
Jacques Semmelman

cc: Deborah Leff, Esq., Acting U.S. Pardon Attorney

ADDENDUM

This Addendum further describes the documentary evidence that illustrates
the deficiencies in the parole process, and the unfairness of the
Commission's denial of parole.

A. The Weinberger Declaration Has Been Completely Discredited

The Weinberger Declaration consists largely of projections of possible
future harm, as opposed to actual harm. This is evidenced by Mr. Pollard's
then-counsel's response to the Weinberger Declaration (to which he had full
access):

Secretary Weinberger nowhere alleges that the United States has lost the
lives or utility of any agents, that it has been obligated to replace or
relocate intelligence equipment, that it had to alter communication signals,
or that it has lost other sources of information, or that our technology has
been compromised. Indeed, the memorandum only discusses the possibility that
sources may be compromised in the future, thus requiring countermeasures.

(Defendant Jonathan J. Pollard's Second Memorandum in Aid of Sentencing,
served Feb. 27, 1987, at p. 5) (underlining in original; italics added).

The prosecution responded with these words:

[D]efendant argues that the Court should disregard the reasoned concerns of
a U.S. cabinet member as to the real potential for further injury resulting
from defendant's crimes. In short, defendant says that if the government
cannot state with certainty that all the damage which could reasonably occur
in fact has occurred before sentencing, an espionage defendant should not be
held accountable for potential harm which he alone has wrought.

... [D]efendant does not address the specific, reasoned projections of
damage resulting from the compromise of these documents which the Weinberger
Declaration contains.



(Government's Reply to Defendant's Sentencing Memorandum, served Mar. 3,
1987, at p. 19) (emphasis added). Thus, the government's pre-sentencing
submission (prepared more than 13 months after Mr. Pollard's arrest)
reflected potential future harm.

The public record does not disclose what Mr. Weinberger's projections were.
The projections were marked classified and were placed under seal. Mr.
Weinberger died in 2006.

The passage of time has underscored that any harm to the United States
projected in the Weinberger Declaration has not materialized, and never
will. In a published 2002 interview with respected journalist and author
Edwin Black ("IBM and the Holocaust"), Mr. Weinberger himself described the
Pollard case as "a very minor matter, but made very important." He
reiterated during the interview that "the Pollard matter was comparatively
minor. It was made far bigger than its actual importance." Thus, whatever
Mr. Weinberger may have written in 1987, by 2002 he had come to recognize
that Mr. Pollard's case was "very minor." Despite that acknowledgement, at
the parole hearing the prosecution relied on the Weinberger Declaration as
if it were current and valid. And it did so while continuing to withhold
from security-cleared defense counsel the very document it was invoking as a
principal basis for denying parole.

Finally, the Commission ignored written submissions by two former
high-ranking U.S. government officials who served side-by-side with Mr.
Weinberger in the Reagan administration, and who attest to his severe bias
against Israel and to the distortive effect it had on Mr. Pollard's
punishment:

Robert C. "Bud" McFarlane served as U.S. National Security Adviser in the
Reagan Administration, and worked closely with Secretary Weinberger. In a
letter dated February 9, 2012, Mr. McFarlane wrote that "the affidavit filed
by former Secretary of Defense Caspar Weinberger, was surely inspired in
large part by his deeply held animus toward the State of Israel. His extreme
bias against Israel was manifested in recurrent episodes of strong criticism
and unbalanced reasoning when decisions involving Israel were being made."
Mr. McFarlane went on to say that the "imprisonment of Mr. Pollard for more
than 26 years is more than excessive," and "a great injustice[.]"
Dr. Lawrence J. Korb served as Assistant Secretary of Defense under Mr.
Weinberger and worked closely with him from 1981 to 1985 (a period that
includes Mr. Pollard's arrest). In a letter dated September 27, 2010, Dr.
Korb wrote, "[b]ased on my first-hand knowledge, I can say with confidence
that the severity of Pollard's sentence is a result of an almost visceral
dislike of Israel and the special place it occupies in our foreign policy on
the part of my boss at the time, Secretary of Defense Caspar Weinberger."
Dr. Korb went on to say that "[j]ustice would best be served by commuting
Pollard's sentence to the time he has already spent in prison."

Again, the Commission wholly ignored this evidence.

B. The 1987 CIA Study Reveals There Was No Disclosure of US Information

The absence of reliable evidence that there was serious harm to U.S.
national security is further underscored by an October 30, 1987 Central
Intelligence Agency Study titled "The Jonathan Jay Pollard Espionage Case: A
Damage Assessment" (the "CIA Study"), which was released December 14, 2012
by the National Security Archive at George Washington University. Although
portions of the CIA Study remain classified, the now-public portions reveal
that Mr. Pollard delivered information to Israel regarding Arab and
Pakistani nuclear intelligence; Arab military capability and weaponry
(including biological and chemical weapons); Soviet aircraft, missiles, and
air defenses; Soviet advisers in Syria and Soviet training of Syrian
personnel; the PLO's Force 17; the PLO's headquarters in Tunis, and Libyan
and Tunisian air defenses; and the RASIN (Radio Signal Notation) Manual,
which was requested by Israel to help in the decryption of intercepted
communications of Soviet military advisers in Damascus. (CIA Study at ¶¶ 4,
51-62.) Significantly, the CIA Study reveals that Israel never requested
information from Mr. Pollard concerning "US military activities, plans,
capabilities, or equipment." (Id. at ¶ 63.) (emphasis added).

C. Many Prominent Former U.S. Government Officials Urge Release

The Commission ignored written submissions from a distinguished array of
former senior U.S. government officials, each of whom has urged that Mr.
Pollard be released. In addition to Messrs. McFarlane and Korb (quoted
above):

In a letter dated December 21, 2010, former U.S. Attorney General Michael B.
Mukasey wrote that "a life sentence can only be considered utterly
disproportionate to the crime," and that "Pollard has suffered confinement
well beyond the severity of what he did."
In a letter dated January 11,2011, former U.S. Secretary of State George P.
Shultz wrote that Mr. Pollard had already "paid a huge price for his
espionage on behalf of Israel and should be released from prison." Mr.
Shultz was Secretary of State from 1982 to 1989, a period that encompassed
all of the events in Mr. Pollard's underlying case. Secretary Shultz served
alongside Secretary Weinberger in the Reagan Cabinet.
In a letter dated March 3, 2011, former U.S. Secretary of State and former
U.S. National Security Adviser Dr. Henry A Kissinger wrote that "justice
would be served by commuting the remainder of Pollard's sentence of life
imprisonment."
In a letter published in the Wall Street Journal on July 5, 2012, R. James
Woolsey, a former Director of the Central Intelligence Agency, wrote of Mr.
Pollard that he "support[s] his release" and that it is time to "free him."
In a letter dated October 26, 2011, four former chairs of the U.S. Senate
Select Committee on Intelligence- Senators David Durenberger, Dennis
DeConcini, Birch Bayh, and the late Arlen Specter- each urged that Mr.
Pollard be released. They, along with fourteen other former U.S. Senators,
described Mr. Pollard's sentence as "severely disproportionate" and "a gross
miscarriage of justice." They urged that, as a matter of "American justice,"
Mr. Pollard's sentence be commuted to "time served."
In a letter dated January 2, 2014, former Senator David Durenberger wrote
that he knows "the circumstances surrounding the case as well as anyone,"
having "served on the Senate Select Committee on Intelligence from 1979-1986
and as its Chair during the 1985-86 session of the Congress," i.e., at the
very time the underlying case was underway. Mr. Durenberger decried "the
harshness of [Mr. Pollard's] sentence" as "uncalled for," and urged Mr.
Pollard's release.
As far back as July 2, 1996, former Senator Dennis DeConcini, who had served
on the U.S. Senate Select Committee on Intelligence at the time of Mr.
Pollard's arrest and guilty plea, and who later served as Chair of that
Committee, wrote that Mr. Pollard had already "served adequate time and
should be considered for parole[.]" Former Senator DeConcini renewed his
request by letter dated January 5, 2009, and specifically noted that
"deterrence has been achieved[.]"

The fact that the Secretary of State (at the pertinent time), the National
Security Adviser (at the pertinent time), and four former Chairs of the
Senate Select Committee on Intelligence (including Mr. Durenberger, who
occupied the post at the pertinent time) have all come out strongly in favor
of release should have been accorded far more weight than the discredited
Weinberger Declaration. These materials were submitted to the Commission.
The Commission ignored them.

D. The Victim Impact Statement Says Nothing About Harm to National Security

As its name suggests, a "victim impact statement" is a statement to the
sentencing court made by a victim of a crime that describes, in the victim's
own words, the impact of the crime on the victim. In cases of espionage, the
victim is the government itself. Thus, Mr. Pollard's Presentence Report
includes a Victim Impact Statement (VIS) prepared by the DOJ and submitted
to the sentencing judge in 1987, that describes the alleged harm to the
United States.

As the instrument designed by law to allow the victim's voice to be heard on
the issue of harm, the VIS contains the government's most forceful and
comprehensive description of the harm it claims to have suffered as a result
of the offense committed. In Mr. Pollard's case, the VIS makes reference, in
very general terms, to the "breadth and scope" of the information delivered
to Israel. Nowhere, however, does the VIS say, as the Commission erroneously
found, that this "was the greatest compromise of US security to that date."
Indeed, the VIS does not address national security at all, other than to say
that "[t]he specific instances of damage to the national security caused by
Mr. Pollard's offense will be described in a classified damage assessment
affidavit to be submitted to the Court in camera." (Presentence Report at p.
7) (emphasis in original). That "classified damage assessment affidavit" is
the Weinberger Declaration. As discussed above in detail, the Weinberger
Declaration has been discredited in multiple ways.

Silent with respect to any alleged harm to national security, the VIS
focuses instead on relations with Middle Eastern countries, and on the lack
of a quid pro quo for information the United States could have otherwise
bartered with Israel:

Mr. Pollard's unauthorized disclosures have threatened the U.S. [sic]
relations with numerous Middle East Arab allies, many of whom question the
extent to which Mr. Pollard's disclosures of classified information have
skewed the balance of power in the Middle East. Moreover, because Mr.
Pollard provided the Israelis virtually any classified document requested by
Mr. Pollard's coconspirators, the U.S. has been deprived of the quid pro quo
routinely received during authorized and official intelligence exchanges
with Israel, and Israel has received information classified at a level far
in excess of that ever contemplated by the National Security Council. The
obvious result of Mr. Pollard's largesse is that U.S. bargaining leverage
with the Israeli government in any further intelligence exchanges has been
undermined. In short, Mr. Pollard's activities have adversely affected U.S.
relations with both its Middle East Arab allies and the government of
Israel.

(Presentence Report at p. 7) (emphasis added.)

The VIS thus reflects friction between the United States and Middle East
Arab allies, and temporary reduction in bargaining leverage by the United
States. It says nothing at all about harm to national security, and
certainly does not allege, in words or in substance, that this was the
greatest compromise of national security up to that time.

Once again, the Commission ignored this evidence.

-

JUSTICE FOR JONATHAN POLLARD
Website: http://www.JonathanPollard.org
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