Jonathan Pollard: Background and Considerations for Presidential Clemency

Jonathan Pollard: Background and Considerations for Presidential Clemency

Order Code RS20001
Updated January 31, 2001
CRS Report for Congress
Received through the CRS Web
Jonathan Pollard: Background and
Considerations for Presidential Clemency
Richard A. Best, Jr.
Specialist in National Defense
Clyde Mark
Specialist in Middle Eastern Affairs
Foreign Affairs and National Defense Division
Summary
Jonathan Jay Pollard and his wife, Anne Henderson Pollard, were arrested in 1985
on charges of spying for Israel. Pollard pleaded guilty and received a life sentence, and
remains in prison. Anne Henderson Pollard received a five-year sentence, and was
released early in 1989. At first, the Israeli government claimed Pollard’s activities were
not sanctioned by the Israeli government and were part of a rogue operation, but the
Israeli government granted citizenship to Pollard in 1996, and admitted that Pollard was
spying for the government of Israel in 1998. Israeli Prime Ministers on several occasions
requested that President Clinton grant clemency to Pollard, but the Clinton
Administration ended without a reprieve. It is likely that the Israeli government will raise
the issue again and some U.S. groups continue to advocate Pollard’s release. At issue
is the question: should the President grant clemency to Jonathan Pollard? Those
supporting clemency argue that Pollard has served long enough, that he spied for a
friendly nation, not an enemy, that his release will help the peace process, and that the
United States reneged on the plea agreement. Those who oppose clemency argue that
Pollard’s spying exposed U.S. intelligence methods and personnel, that the Pollard case
is not related to the peace process, that who he spied for is irrelevant, and that the
judges’ sentence was justified by the magnitude of the crime. The report will not be
updated.
Introduction
The case of Jonathan Jay Pollard (b. 1954), convicted of espionage on behalf of Israel
in 1986 and given a life sentence as a result, has been raised repeatedly by the Israeli
government in an effort to obtain his release. The Clinton Administration rebuffed three
efforts to secure Pollard’s release, one during the final hours of the October 1998 Wye
River conference when Israeli Prime Minister Binyamin Netanyahu repeated his plea for
clemency. President Clinton agreed to review the case by January 1999 after the views of
Congressional Research Service ˜ The Library of Congress

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agency heads had been received.1 In the light of continued opposition to a pardon by law
enforcement agencies and senior congressional leaders, no action was taken at that time.
Subsequently Netanyahu’s successor, Ehud Barak, renewed Israeli requests that Pollard
be freed. Some observers suggested that Pollard would be included among those
pardoned during the last weeks of the Clinton Administration, but that did not occur.
Although the President has authority to grant pardons, the role of congressional opinion
may become an important factor in the review of Pollard’s case. The background
information provided below is based on material available in the media but not on court
documents; this CRS report does not purport to be a legal analysis of the case.
Background
According to a “Factual Proffer” submitted by U.S. Attorney Joseph E. diGenova to
the District Count in Washington on June 4, 1986,2 Pollard, a U.S. citizen, worked as a
civil servant for intelligence offices of the U.S. Navy from September 1979 until November
21, 1985, during which period he had access to classified information. In the early summer
of 1984, Pollard contacted Israeli intelligence officials and began providing classified
documents to an Israeli officer (who was not working in the Israeli embassy).
Subsequently, his primary contact became the then-science consul at the Israeli embassy
in Washington who asked him to obtain specific classified documents. Pollard met with
Israeli contacts to provide documents on a biweekly basis and received regular payments
estimated to have totaled over $45,000. According to government sources, he provided
access to classified documents that would fill a space ten feet by six feet by six feet. Some
former government officials claim he also offered classified information to countries other
than Israel. He and his then-wife, Anne Henderson Pollard, twice traveled to Europe and
to Israel with Israeli assistance. On the basis of a report by a co-worker, Pollard was
interviewed in November 1985 by Federal Bureau of Investigation (FBI) and Naval
Investigative Service officials regarding his removal of classified documents from his
office. A few days later, on November 21, 1985, Pollard and his wife attempted to enter
the Israeli Embassy, but were rebuffed by the Israelis and arrested by FBI agents.
After some hesitation, Pollard cooperated with Justice Department officials who
promised to inform the court of his cooperation and to seek a “substantial” prison term,
but not a life sentence. He was promised that the prosecution would seek a lesser prison
term for his wife. Subsequently, the Secretary of Defense, Caspar Weinberger, submitted
a damage-assessment memorandum (which remains classified) to the court arguing that
Pollard had committed an exceptionally grave offense against the national security,
including the compromise of intelligence sources and methods. Pollard pleaded guilty to
espionage, and the Court sentenced him to life imprisonment; his wife was sentenced to
a five-year prison term.
The sentence was appealed because Pollard’s cooperation had been encouraged with
a promise of leniency which was not granted by the court. (Judges are not obligated to
follow recommendations of prosecutors.) In 1992, the U.S. Court of Appeals (on a 2-1
vote) upheld the sentence. Anne Henderson Pollard was released in 1989 after serving
1 See Walter Pincus, “White House Canvassing on Release of Pollard,” Washington Post,
December 3, 1998, p. A37.
2 Reprinted in the New York Times, June 5, 1986, p. B11.

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two years and eight months. She and Jonathan were later divorced; Jonathan Pollard
subsequently remarried while in prison. Pollard is incarcerated in the Federal Correctional
Institution in Butner, N.C.
For some time the Israeli government denied responsibility for the espionage effort,
arguing that it was a “rogue” intelligence effort by misguided officials,3 but in 1998 the
Netanyahu government acknowledged that Pollard had been an Israeli agent, handled by
high-ranking Israeli officials of the Bureau for Scientific Relations.4 Pollard was granted
Israeli citizenship in February 1996, and Netanyahu, Barak, and other senior officials have
regularly pressed Washington for his release from prison to enable him to live in Israel as
an Israeli citizen.
Pollard could be released from prison through parole or presidential pardon.
Reportedly, he has not applied for parole out of fear that it would not be granted and that
he would not be eligible to reapply for several years.5 His supporters in the United States
and in Israel have instead sought a presidential pardon. Under Article II, Section 2, Clause
1 of the Constitution, the President has the power to grant reprieves and pardons for
federal offenses, except in cases of impeachment. The President’s pardon power is not
subject to legislative control, nor may a court overrule or circumscribe a President’s
decision. Further, no reason has to be given for granting a pardon.6 From 1980 through
1999, some 804 pardons have been granted and 51 sentences have been commuted, while
a much larger number have been denied. Although Pollard’s supporters continued to
lobby for clemency, Pollard was not included among those who were pardoned in the final
days of the Clinton Administration. Media accounts do indicate that a planned mid-2000
move of Pollard from one section of the Butner facility to another that was perceived as
more dangerous was cancelled at the request of the White House after protests by Jewish
leaders in New York.7
Public Support and Opposition
After an intensive campaign by Pollard’s family, some American groups sympathetic
to Israel have urged that his sentence be commuted. Reportedly, 1.5 million persons,
mostly Americans and Israelis, have signed petitions urging his release and some 40
Members of the 105th Congress support clemency.8 Pollard’s supporters contend that the
sentence was excessive and that he worked on behalf of an ally. The effort has at times
been hindered by changing statements by Pollard and by shifting lawyers and spokesmen.
3 See Wolf Blitzer, Territory of Lies: the Exclusive Story of Jonathan Jay Pollard: the American
Who Spied on His Country for Israel and How He Was Betrayed (New York: Harper & Row,
1989), pp. 198-200.
4 “Israel Now Admits Pollard Was Its Agent,” New York Times, May 12, 1998, p. A8.
5 Peter Perl, “The Spy Who’s Been Left in the Cold,” Washington Post Magazine, July 5, 1998,
p. 27.
6 See P.L. Morgan, Pardoning Power of the President, CRS Report 95-1049A, October 19, 1995.
7 Elisabeth Bumiller, “Mrs. Clinton Intervenes on Spy’s Behalf,”New York Times, September 2,
2000, p. B5.
8 Perl, “The Spy Who’s Been Left in the Cold,” p. 24.

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Opposition to Pollard’s release continues to be expressed by senior defense and
Intelligence Community officials and by congressional leadership. According to a New
York Times report,9 Director of Central Intelligence (DCI) George Tenet said he would
resign should Pollard be released in response to Israeli pressure at the 1998 Wye
Conference. Seven former Secretaries of Defense subsequently opposed a pardon as did
senior congressional leaders. Four former Directors of Naval Intelligence – Pollard’s one-
time superiors – argued in December 1998 that Pollard’s sentence was based fairly on his
illegal activities, including offers to provide information to three countries other than
Israel, and that a pardon of Pollard “would send a most damaging message to the loyal
U.S. citizens who are entrusted with our national secrets, many of whom have emotional
ties to other nations, but who, nonetheless, have taken seriously their oath to keep our
national security information secret.”10
Middle East Consequences of Clemency
No Israeli political party has made clemency for Pollard a key issue in its political
program. A majority of the Knesset members and many other Israelis support Pollard’s
release, but, overall, clemency for Jonathan Pollard is not a high profile issue in Israel. If
a President were to grant clemency to Pollard, it is possible that Arab commentators would
seize upon the release as further evidence of a U.S. double standard that treats Israel more
favorably than the Arabs. But it is unlikely that Pollard’s release would affect Arab
relations with the United States or have a negative impact on the peace process.
A Pro-Con Discussion of Presidential Clemency
Following are arguments in favor of and opposed to presidential clemency for
Jonathan Pollard. The arguments appear as they would be presented by advocates of the
positions. The arguments are not presented in any particular order of importance.
In Favor of Clemency
Opposed to Clemency
1. Releasing Jonathan Pollard will contribute
1. Pollard has nothing to do with the current
to the peace process, because Israel requested
Israeli-Palestinian peace process. Israeli
that Pollard be released as a demonstration of
Prime Minister Netanyahu introduced the
U.S. intentions to meet its commitments as a
Pollard issue at the last minute in the Wye
peace process sponsor. In turn, the United
discussions, perhaps in the belief that
States will ensure that the Palestinians meet
President Clinton would agree to the Pollard
their commitments. Only with such
release to clinch the Wye agreement. U.S.
assurances will Israel be able to take the risks
efforts to maintain the integrity of its
necessary to make peace a reality. Releasing
intelligence should not be compromised by
Pollard will act to guarantee the success of the
such diplomatic extortion.
peace.
9 James Risen and Steven Erlanger, “C.I.A. Chief Vowed to Quit If Clinton Freed Israeli Spy,”
New York Times, November 11, 1998, p. A1. A Clinton Administration official subsequently
indicated that Tenet had not actually threatened to resign; Knut Royce, “CIA Chief Didn’t Say
He’d Quit, Official Says,” Newsday, November 12, 1998, p. A16.
10 W.O. Studeman et al., “Release Pollard at the Nation’s Peril,” Washington Post, December 12,
1998, p. A23.

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In Favor of Clemency
Opposed to Clemency
2. Sixteen years have passed since the
2. It is reported that Pollard has a
incident. The information Pollard passed to
photographic memory, and still retains
Israel or may still possess is out of date by
knowledge of intelligence systems, methods,
now. There is no harm to the country if
procedures, and craftsmanship that would be
Pollard is released.
useful to outsiders. His interpretations of the
material, the great bulk of which was not
returned to the United States, could be of
great benefit to outsiders. He continues to
pose a threat to the United States, particularly
if the final destination of the information he
still possesses is unknown.
3. Pollard was helping an ally, not an enemy.
3. Laws that prohibit providing classified
The information Pollard provided to Israel
information to unauthorized persons do not
was vital for Israel’s defense against the
distinguish between allies and enemies. If
Arabs, and was being denied Israel by U.S.
Pollard was so concerned about Israel, why
intelligence officials. Israel was entitled to the
did he offer to sell information to other
information under the 1983 letter of
countries? The United States systematically
understanding on security information.
makes available to Israel information that is
Without that information, Israel would have
deemed necessary for Israel’s defense. The
been the target of Arab weapons of mass
decision on what material is to be made
destruction. The Israeli attack on the Iraqi
available to Israel does not rest with
nuclear facility and the discoveries made by
individuals like Pollard, who presume to know
the U.N. inspection team in Iraq prove that
more than the President, the Secretaries of
Israel needed the information to defend itself.
State and Defense, the Director of Central
Intelligence, or other U.S. government
officials who do decide what information
should be given to Israel. The press has
reported that Pollard’s Israeli handlers
requested specific information that went well
beyond Israel’s defense against the Arabs.
Information provided by Pollard may have left
Israel, either stolen or as a commodity traded
for other considerations.
4. Pollard could be traded. Nations often
4. Nations exchange foreign spies they have
trade spies, exchanging one captured spy for
captured for one of their citizens captured and
another or for other considerations. There are
incarcerated in a foreign country. Nations do
several possible exchanges: the United States
not trade their own citizens for non-citizens or
would release Pollard, Egypt would release
for people accused of criminal activities. The
Azam Azam, an Israeli Druze accused of
United States sought legal extradition of
spying for Israel, and Israel would release
Sheinbein.
many of the 2,000 to 3,000 Palestinians being
held in Israeli jails for various crimes. Or,
Israel might trade Pollard for Samuel
Sheinbein, the young man held in Israel
accused of murder in Maryland.

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In Favor of Clemency
Opposed to Clemency
5. Israel gave Pollard citizenship in January
5. Pollard was a U.S. citizen when he broke
1996, and admitted that he was an agent of
the law and violated his nation’s trust. Israel’s
the Israeli government in May 1998. Pollard
belated granting of citizenship does not
has admitted that he broke U.S. laws and
change the nature of the crime or the damage
spied for Israel, and has stated that he is sorry
it inflicted.
for what he has done. After 13 years in
prison, Israel’s recognition of its role, and
Pollard’s statement of remorse, it is time to
send Pollard home to Israel.
6. Jonathan Pollard agreed in a plea bargain
6. The federal prosecutor agreed not to
that he would plead guilty and would
request life but only a substantial number of
cooperate in the investigation, providing the
years in prison; no specific number of years
United States government did not give him a
was mentioned. The prosecutor kept his
life sentence. Jonathan Pollard kept his part
bargain with Pollard. The judge decided on
of the bargain; he cooperated fully in the
the life sentence after hearing of the enormous
investigation and waived his right to a jury
amount of damage caused by Pollard from
trial. The United States reneged on its
the statements of the Secretary of Defense, the
agreement based on an exaggerated damage
Director of Central Intelligence, and U.S.
assessment by Secretary of Defense Caspar
government officials. The life sentence was
Weinberger.
upheld by an appellate court.
7. Pollard has served 16 years, more than
7. Pollard was eligible for parole after ten
enough time for the so-called crime of helping
years, but he has never applied for parole. His
a friend. Others caught passing information to
sentence was based on the severity of damage
friendly governments and allies serve between
he inflicted, the intelligence methods he
two and four years, on average. Many who
revealed, the agents he betrayed and
have spied for enemies of the United States
endangered.
have not served as long as Pollard.

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