Jewish groups fighting for the release of Israeli spy Jonathan Pollard are using Hillary Clinton's (expected) run for the Senate as a lever to "convince" the president that he ought to show him mercy. Pollard's release has also become a major issue in Israel. The matter will not go away. On the contrary, it is likely to become increasingly divisive unless it is somehow defused quickly. Is there a way?
After pleading guilty, Pollard received a life sentence, and has been in prison, much of it in solitary confinement, for more than 13 years. No one defends what he did, but large segments of the Jewish community, including people such as Elie Wiesel and Alan Dershowitz, believe his sentence was disproportionately long as compared with those of other offenders.
Other factors suggest his life sentence was unfair: He pleaded guilty -- saving the government the time and expense of a trial and the almost-certain divulgence at trial of intelligence secrets. He spied for a friendly ally rather than for an enemy (hence he is not guilty of treason). And he cooperated with the government's investigation. If he gets any credit for these factors, he should not have been given the maximum possible sentence. Besides, the government agreed not to seek a life sentence.
Yet the intelligence community -- Defense, Justice, State -- remains adamantly opposed to his release. CIA Director George Tenet threatened to resign if President Clinton released Pollard.
There is a way to resolve the matter that ought to reasonably satisfy both sides: The president could appoint a neutral, unbiased panel -- say, three retired federal judges of impeccable reputation -- with complete access to all classified records to answer two questions:
(1) Was Pollard's life sentence fair? This question has two parts: (a) Was it fair when it was imposed by Judge Aubrey Robinson on the basis of what was then known? (b) Is it fair in light of what we know today? A damage assessment was made at the time. According to sources, the assessment was made in part by none other than Aldrich Ames, who was then a mole in the CIA working for the Soviet Union. In short, there is good reason to believe that Pollard was blamed for the human losses in the Soviet Union that resulted from Ames's treason.
(2) Did our government violate the agreement pursuant to which Pollard agreed to plead guilty and the government agreed not to seek a life sentence? Pollard has long claimed that the government violated its agreement by in effect urging the sentencing judge to impose a life sentence. Pollard even sought to raise this question in a legal proceeding, but he had a heavy procedural burden: He had failed to make this claim on a direct appeal from his sentence. Having waited so long, he had to show not simply that the government violated the plea agreement but that the violation was so egregious it constituted a gross denial of justice.
One judge on the three-judge panel, Stephen Williams, held that what the U.S. government did was so bad that Pollard met even this higher standard of wrongdoing. The other two judges, Laurence Silberman and Ruth Bader Ginsburg (before her elevation to the Supreme Court), ruled against him. However, they too regarded the government's behavior as pretty sleazy, although, in their judgment, it did not amount to the gross injustice required on what lawyers call a collateral attack as opposed to a direct appeal from the sentence.
The panel I am proposing would decide whether the government violated the plea agreement, directly or indirectly, by in effect recommending a life sentence. This panel of judges could issue both a public report and a sealed one with classified information that would be opened only when it no longer jeopardized our security.
This suggestion would place the issue where it belongs -- in an unbiased, judicial context. It is thus not only honorable and fair but politically attractive as well.
The writer is editor of Moment magazine and a former Justice Department attorney.