A U.S. federal appeals court appears unwilling to give lawyers for Jonathan Pollard access to classified information they say would help in their appeals for clemency for the former U.S. Navy intelligence analyst, who is serving life in prison. In oral arguments at the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday, members of the three-judge panel repeatedly questioned whether the court could let Pollard’s attorneys see classified information for a clemency petition, suggesting it was outside the judicial process.
The court also seemed poised to rule against Pollard’s other motion, to seek a new sentencing hearing because of ineffective counsel, saying Pollard is asking for provisions beyond the normal appeals process.
“I think that’s a problem with Mr. Pollard’s litigation,” said a visibly frustrated Judge David Sentelle. “He thinks he’s unique.”
The appeals hearing is the latest in the battle to free Pollard, who was sentenced in 1987 after pleading guilty to spying for Israel.
Pollard’s attorneys and members of the American Jewish community lobbied hard for Pollard’s clemency during the Clinton administration as well as previous administrations.
They argued that his life sentence was unjust because he had pled guilty and that it was harsher than sentences of other convicted spies who had worked for countries that were not allies of the United States.
If this appeal is denied, Pollard is likely to petition the U.S. Supreme Court to hear the case.
The Pollard case has captured the attention of Jews worldwide for nearly 20 years. Israel, which granted Pollard citizenship in 1995, has also raised the issue with successive American administrations.
On Tuesday, the Israeli Knesset passed a resolution demanding that the Israeli government make the United States releasing Pollard a condition for Israel’s freeing more Palestinian prisoners
In court here on Tuesday, Sentelle questioned the court’s jurisdiction from the first moment Pollard attorney Eliot Lauer began arguing to declassify 40 pages of a declaration written in 1987 by then-Secretary of State Casper Weinberger, which outlines his assessment of Pollard’s damage to U.S. interests and is believed to be key to Pollard’s long sentence.
Lauer said he needs access to the documents to assist the executive branch in determining Pollard’s clemency claim.
With access to the information, he said, “we may be able to show that with the passage of time, the harm that may have been attributed to Pollard is not attributed to Pollard, and may be attributed to other spies.”
Sentelle said there is no precedent for granting access to documents for the purpose of clemency, despite a protective order that allows Pollard’s attorneys access if they can show a “need to know” and proper security clearance to review the documents.
Pollard’s attorneys have gotten the security clearance.
Mary McCourt, the assistant U.S. attorney in the case, suggested the protective order was not applicable for furthering the quest for clemency. “There is simply no right in the furtherance of clemency petitions for discovery, for hearings,” she said, calling clemency a “plea for mercy” rather than a formal appeal. She also said those reviewing the clemency — the president and executive branch officials — could gain access to the materials, and there is no need for the prisoner’s attorney to have access.
On the sentencing issue, Jacques Semmelman, another Pollard attorney, said a conflict of interest between Richard Hibey, Pollard’s original attorney, and Hamilton Fox III, who filed a motion in 1990 seeking a withdrawal of Pollard’s guilty plea, prevented Fox from claiming ineffective counsel.
“The conflict of interest is that Mr. Fox could not bring himself to say anything negative about Mr. Hibey,” Semmelman said, after being asked repeatedly by Sentelle.
The new lawyers claim Hibey was ineffective because he did not appeal after Pollard received a life sentence, despite having pled guilty and cooperated with the government.
But Sentelle seemed not to accept Semmelman’s argument, saying he did not show a true conflict of interest.
He also said the attorneys’ claims of Hibey’s ineffectiveness were subjective, calling Hibey “eloquent,” “excellent,” and “one of the most prominent defense lawyers.”
While Sentelle was more vocal, Judge Judith Rogers also questioned the attorneys, and seemed to echo Sentelle’s concerns. Judge Karen Lecraft Henderson did not speak.
Pollard, who is serving his sentence in Butner Prison in North Carolina, did not attend the hearing. The last time he appeared in court was in Washington in September 2003 for a hearing on the same matter by the U.S. District Court. That court rejected the motions, prompting this appeal.
Pollard’s wife, Esther, sat in the front row of the courtroom.
“The clemency issue is an adversarial process,” she told JTA after the hearing. “How can you say it is fair for the government agencies to access the documents 24 times, but Jonathan’s lawyers are not allowed to see the documents?”
The court is expected to rule later in the year. If the appeals are denied, Pollard could ask the U.S. Supreme Court to hear either or both of the two issues.
If the appeals court rules for Pollard, he could potentially receive a new sentencing hearing or his attorneys could gain access to the classified material, or both, depending on the decision.
Sentelle suggested that Pollard would be able to exercise relief through the parole process.
Pollard is eligible for parole, but his attorneys said he has not sought a parole hearing because it would be hard to argue for parole without the classified information.
“Obviously, if parole were the solution, we wouldn’t be here today,” Esther Pollard said.
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The Archive of the Jewish Telegraphic Agency includes articles published from 1923 to 2008. Archive stories reflect the journalistic standards and practices of the time they were published.
