UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA lfQlTED STATES OF N1ERICA v JONATHAN J POLLARD MAR 219 7 Cl mRI U S DISTRICT COORJj' DltjiFliCT OF COLJ MBIA' Criminal NO o _86 0207 B dJlcteQ ---------------- DEFENDF_NT JONATHAN J POLLJ _RD I S SECOND HEHORANDUM IN AID OF SENTENCING I Introduction Defendant Jonethan J Pollera by counsel respectfully submits this memorandum in aid of sentencing by the Court Pursuant to an agreement Hr Pollard pled guilty to a single violation of 18 U S C § 794 c the penalty for which may range from any term of vears to life imp isonment and or a fine up to $250 000 Mr Pollard previously submitted for the Court's review a state ent written entirely by him and typed for the Court's convenience explaining his personal background motivations for delivering information to Israel and his the crime he committed has been filed wi h cur ent feelings toward unclassified version of the statement the Court as well Mr Pollard also submits herewith fer the Court's review this classified memorandum containing a detailed explanation of the nature of the documents allegedly compromised by Mr Pollard an analysis of the Government's claim of the damage to the United States caused by his actions and a refutation of several points raised in the Government's memoranda COURTRAN II Damage to the United States A Introduction Perhaps the critical issue in the Court's determination of an appropriate sentence for Mr Pollard is the extent to which his conduct damaged the interests of the United States In recognition of the importance of the damage issue the United States has not only devoted a section of its public sentencing memorandum to a discussion of the alleged damage caused by him but it also has filed a supplement to the memorandum elaborating on its contentions and has submitted an affidavit by the Secretary of Defense purportedly detailing the damage assessment While it is proper indeed obligatory that the United States set forth its vieHs regarding damage inflicted by Mr Pollard's conduct Mr Pollard expected that the opinions expressed would be succinct objective and relevant Instead the United States has filed a blizzard of contentions notable for the emphasis on the phrases may have could have and IIpos s ibly has 1 The damage assessment- in this case fails to establish the fact of injury in such a way as to justify substantial IThe Weinberger affidavit must be recognized as not having been ­ written by the Secretary of Defense In the true spirit of overkill that characterizes the Government's assessment of damage in this case the attempt to make more out of what is the real _ injury to the national security is demonstrated by this technique- of having the Secretary sign the af idavit rather than the true author s In a pending espionage prosecution in the Eastern District of Virginia in which the undersigned are also counsel the damage assessments in that case were not signed by the --- Footnote Continued 2 incarceration for Mr Pollard As presented it is an overstated polemic of the evidence one expects to find in a case of espionage Instead of concentrating on the actual damage to U S national interests the United States has engaged in unbridled speculation on the potential damage While this speculation would be germane if Mr Pollard had only been apprehended yesterday over fifteen months have elapsed since his arrest During that time the United States has debriefed him extensively conducted exhaustive reviews of the documents delivered by him to the Israelis and had the opportunity to observe any material alteration of the relationships between it anc the Govern ent nations of Israel allied nations and friendly Arab The United States should have developed a concrete assessment of t e any speculation damage by now thereby obviating the need for The United States' reliance on speculation therefore underscores the tenuousness of its claims B There Was No Disclosure to the Enemv n the fi st place no injury is demonstrated in the same way as in the case of unauthorized disclosures to a hostile nation betwee national This point comes home only when a comparison is made which the Government asserted to be the injury to our secur ty i Pelton and Morison such celebrated recent cases as Walker In each of those prosecutions the injury Footnote Continued Secretary of Defe se The point is noted here because this Court should not be bulldozed into not considering a challenge to a doc ent just because it was signee by a cabinet secretary 3 to the United States was painfully clear the classified rnaterials 2 the Soviets received The result was that sources of information were compromised secret methods of collection exposed and locations of equipment and personnel revealed Since the u s intelligence effort is directed primarily at the Soviet Union these repercussions meant basically that the United States had to start over to reestablish a collection network Accordingly the United States was required to establish new communications links methods and channels to replace lost equipment and personnel to find new intercept sites and to devP-lop new technology to circumvent Soviet defenses or interference The Government has argued that the shee volume cf the information provided has mace this one of the worst espionage cases in U s history Again this pandering simply fails to recognize the most salient of all facts in the case the enemy 2There is nothing in the damage assessment that speaks of damage to our national security in terms of our position vis-a-vis the Soviets The first occasion where such a claim arises is in the Government's opposition to Mr Pollard's recently-denied Motion for Production of Evidence Favorable to the Accused Since the allegation was made and because of its incendiary nature it is important to focus on it in order to point out that there is simply no basis in the evidence for it The only reference in the damage assessment to the Soviet Union_ regards the danger of a Soviet mole in Israeli intelligence That issue is treated infra Unless the government is sandbagging everyone by bringing in such proof in rebuttal the record as it stands merely speculates without any proof that somehow our national security vis-a-vis Russia potentially has been damaged To state this without more is overkill and exploitive of a situation in which the Government holds every advantage and the defendant has no opportunity for recuttal 4 Volume per is was not the recipient of the information irrelevant if i t is not reflective of injury u s As an example in v Morison United States District Court for the District of Maryland the defendant was convicted and sentenced to 3 years in jail for having supplied Jane's Defense Weekly with a satellite photograph of a Soviet ship under construction participated in the d mage Mr Pollard assessment for the Morison case Thus the volume of the cOffinromised information meant possession of it that c eated nct ing the it was the Soviets' i jury to ou national secu ity In this case no such allegation cf proo offered suc G2ncge is made or Secretary Weinbe ger nowhere alleges that the Unitec States has lost the lives or utility cf any agents that it has been obligated to replace or relocate intelligence equipment that it hac to alter corr unication has lost other sources of information or been compromised poss b lit l requiring tha signals or that it our technology has Indeed the memorandum only discusses the that sources may be cSIDnromised in the future thus counte easures The absence of any countermeasures taken in the aftermath of Mr Pollard's conduct therefore is perhaps the truest baroneter of the actual damage or absence thereof to the national security Consequently the methodology of this c2uage assessment is se ously flawe for lack cf a clincher Its focus on damage is no-t in the compromise of the substantive information but rather on the intangible unproven speculation that we shall be unable to negotiate effectively with the Government of Israel over intelligence sharing for some time One may assume that if there were evidence of this it would be presented in these papers Certainly after the passage of 18 months since the Israelis began receiving information from Mr Pollard such a development would have surfaced by now -if it in fact has happened it has not c The Political Impact The speculation in the absence of hard evidence extends to the Secretary's concern about our allies Again there is no showing of any adverse fallout with our allies from these disclosures Again with so many months having passed since this case broke it is reasonable to expect evidence of this adversity and not someone's theoretical notion that it could happen Even the political argument is questionable Tunis raid different from the u s Is the Israeli raid on Tripoli It is not fair or accurate to distinguish the two on the basis of our friendship with Tunisia versus our enmity with Libya violation of sovereiqn territory same purpose locations Each was a Each was carried out for the to retaliate against terrorists in their known Each was praised by our President as responsible reactions to terrorism After 15 months since Mr Pollard's arrest our relations with each of those countries has not changed Therefore the Secretary's policy analysis is less an 6 analysis and more a convenient theory 6f injury which bears no relation to reality D Israel's Intent in Receiving Classified Information By the same token fears about what Israel might do with this information by sharing it with third countries are completely unfounded unless of'course the Secretary is willing to state that information Israel has lawfully received is also subject to improper sharing If that is the case the danger here is not peculiar to the compromised information it extends to all of it--compromised and uncompromised alike The heinousness of any espionage must take into account the intent of the recipient of the classified information to harm the Unitec States There is nc evidence in the damage assessment of Israel's intent to inju e the Unitec States by reason of its having illegally received the classified information from Mr Pollard Israel is simply not the enerny--it is not the Soviet Union--it is not a Warsaw Pact nation--it is not China-­ it is not even India Israel as it has been pointed out enjoys a special relationship with the United States staunch steadfast ally It is our The worst that has been said about our loss in this case is that our negotiating posture in near term intelligence exchanges might be jeopardized although after 15 months no evidence of this appears There is more psychology at work here than there is injury Notoriety is the direct result of the much-debated discussed and analyzed phenomenon of how loyal Jewish-fu ericans can serve the ideal of sup orting the Jewish State without doing violence 7 to their allegiance to the United States Mr Pollard failed to maintain that intellectual and spiritual balance that Jewish­ ericans strive to maintain between their love for Israel and their loyalty to the United States For his actions as a result thereof he must be accountable to our laws E Relationship between the United States and Israel Just as a man who strikes another suffers varying degrees of punishment depending on whether the victim lives or dies so should Mr Pollard be sentenced on the basis of the damcge he caused to the security of the United States It is clear that punishment must be imposed in the ferm of incarceration but that dces not mean it should be done vii thout regard to the actnal hann suffered by the United States in this case Accordingly the one point which he asks the Court never to lose sight of is that the countrv to which he passed classified information was not the Soviet Union Instead the recipient of the information is probably one of the closest if not the closest ally of the United States Since Israel's formal establishment in 1948 the United States has provided substantial assistance to it in the form of military hardware financial aid and intelligence information Even though the United States has never committed formally to defending Israel from aggression a cornerstone of U S foreign policy for almost forty years has been a self-imposed duty to ensure the su vival of that nation To that end Israel remains the largest recipient of u S military equipment and financial aid even though it is a diminutive country both in size and population 8 ­ The relationship between the United States and exclusively that of donor-donee srael is not The United States' commitment to the survival of Israel is not entirely a product of altruism • The United States does have a natural sympathy towards Israel because it is the only stable democracy in the Middle East and because it is surrounded by hostile enemies with larger populations and resources whom it nevertheless defeated in three wa s However Israel also has unce taken operations fron which the United States derived substantial benefit Israel has frustrated numerous tarqets and provided te orist i formation In past years activities against tc be usee in u s u s intelligence activities or actions against terEcrism Israel has also acted on the United States' behalf when direct u s detrime tal involvement would be politically impossible or to u s foreign polic For instance when the United States normalized relaticns with the People's Republic of China in 1978 the PRC insisted that the sales to Taiwan u s - diminish its arms The United States ended direct sales to Taiwan but Israel with the encouragement cf the United States became the new supplier of U S arms Mere recently the media has been G detailing Israel's covert role as a broker of U S arms sales to Iran Given this extensive and intimate relationship between Israel and the United States it should not be surprising that the Israeli and U S Governments have entered into formal agreements for the exchange of intelligence information Secretary Weinberger's affidavit aCBits that pursuant to these agreements a large quantity of i telligence it highly classified is disclosed Israelis Secretary Weinberger i formation s information much of a matter of policy to the i s sts however that the passed by Mr Pollard to Israel exceeds the scope of the exchange agreements F Criteria for Dissemination of Information to Israel An inspection of the crite ia t e SecretarY listed in qauging what information could be cisseminated to the Israelis shows that contrary to Secretary Weinberger's claims the in ormation Mr Pollard passed to t e Israelis does not undisputedly fall outside those criteria icentifies six criteria used in ma ng to share information 10 Secretary Weinberger the determination whether 3 Secretary Weinberger also laments the possibility that Mr Pollard could have been a victim of a false flag operation A false flag is a situation whe e the offender is duped into believing that he is giving information to a perfectly benevolent rec pient whe in fact the ultimate recipient is the enemy It is true that a false flag can cperate in every espionage however it should also be factored nto the question of punis ent that there was no false flag here Again we reiterate that the Court should assess the actual damage not what it cculd have done All the i dicia of the flag pointed squarely to Israel and nothing in Mr Pollard's experience belied that Thus Mr Pollard knew then Cclonel--now General--Avi Sella to be an Israeli military hero who led the bombing raid on the Iraqi nuclear reactor site in 1981 While residing in New York Sella's wife was nationally ac ive in the Anti-Defamation Footnote Continued Footnote Continued League In acdition Sella provloea Mr Pollard the entree to Y055i Yagur and Erit Erb who became his long-term handlers Most significantly he met at length with Rafael Eitan the ultimate controller of the operation the man who captured Adolf Eichmann Throughout the course of his operation Mr Pollard questioned all of these individuals at length to satisfy his curiosity and to establish their bona fides Even the best trained agents could not have known the details or events on which these-individuals were quizzed The specter of a false flag was in reality therefore non-existent 12 Seere ry Weinberge repe tedly contencs that the Mr Pollard has damaged u s in£o ation give inte ests in the Middle East Mr Follard and his counsel lack access to to refute all of Secretary to the Israelis bv Weinbe ger's i ormation Whi e necessary assertions some of the assertions are contrary even to established vietHPoints in the intelligence co munity For instance Secretary Weinberger insists that a stronger Israel upsets the Hiddle East and therefore makes a ted bal nce conflic of power in the nore likely If the United States truly believed that it would not provide Israel with the most sophisticatec military esuipment and generous foreign aid Instead one of the bulwarks of u s policy in the Middle East is to ensure that Israel maintains a clear military superiority in the region ' 1 c 1 assJ 'oF'd J e report tJ t_ec n As stated in a I'M' I T h e Aran-Israe J _l _J tary B a anee prepared by the U S intelligence ccmmunity the United States sells some of its best and most advanced equi ment to Israel on a 14 timely basis occasionally even before some US forces receive it Id at 9' The unqualified support which the United States displays for Israel reflects in part a realization that Israel would not initiate a war simply because it thinks it has a military advantage over its enemies To the contrary with the knowledge of military superiority Israel would not experience the insecurity which fuels wars in the Middle East secretary Weinberger attempts to refute his own employees' analysis of the above-described political reality in the Middle East by pointing to the Tunis raid as an example of Israeli aggressiveness prompted by a clear military advantage over its enemies Secretary Weinberger misses one key distinction The raid cn Tunis was not cirected against Tunisia but was a surgical strike aimed at a terrorist organization While relations with Tunisia may have been ruffled over the attack though there was no rupture of ties it is interesting President Reagan architect of u s that- foreign policy stated immediately after the raid that other nations have the right to strike at terrorists i they can pick out the people responsible n World News Digest October 4 1985 4 In addition the strike was not a product of new-found intelligence data supplied by Mr Pollard but rather reflected an application of Israel's consistent policy of retaliating for terrorist actions aaainst its nationals Accordingly the information which Mr Pollard supplied undoubtedly induce it furthe ed the attack but it did not Indeed the information most likely minimized the loss of Israeli and Tunisian lives which would be in the best interests of against the G u s policy by pe mitting a more accurate attack p o he dqua ers Darnase to Relations with Friendlv Arab Countries Secretary Weinberger's relatio s secon contention is that U S with friendly Arab countries have bee damaged The Israelis assuredly realize that cisclosure 0 the extent of the information received from Mr Pollard will jeopardize the advantage which the information gives them over their present or potential enemies since it would spur the effective e emies to take cou termeasures 4When questioned by reporters on how the Israelis were certain that thev were strikinc at FLO members rather than Tu isian civilian President R agan repliec r I have always had great faith in their intelligence Id 16 A related concern of Secretary Weinberger's is that information acquired by Israel thrcugh Mr Pol ard's activities A b cou t ies could be used against darnage u s the raid foreign polic agai st Sec et2ry p t ensui g d age Wei berger to u s Folicy contends that injured because of the u s aid which would Weinberger again points to the PLO headquarters in uses to which the Israelis woule rna ner in a the m unlS as evidence of the info ation and the S ecifically Secreta y relations with T nisia have been Secretary Weinberger does not indicate however whether the damage if any which occurred to the bilatera'l relations was a result of the attack itself or the - irnmediatelv United States' failure to condemn asslli ing Again that the raid would have taken place regardless of Mr Pollard's passing of i formation to the Israelis Mr Pollard may have minimized the damage to U S -Tunisia relations by reducing the n ber of Tunisian fatalities Over eighteen providing mont s in o ation have elapsed since Mr Pollard began en Arab count ies to·t e that time Israel has not attacked one Arab Israelis cou t y During Israel has had a lonqstanding policy which predates Mr Pollard's invc veme t wit t em c t r et u te orist bases located in Lebanon Those air strikes are the only exception to this proposition If the information given by Mr Pollard had altered the military balance as Secretary Weinberger contends Israel surely would have begun hostilities against Syria in light of that country 1 s provocative behavior in Lebanon III Mr Pollard1s Access to Classified Documents Mr Pollard commenced his employment with the Department of Navy in 1979 as an intelligence analyst He iIT ediately attracted the attention of his superiors because of the depth of his analysis an his enthusiasm Consequently Mr Pollard was given extremely favorable reviews and received several awards and promotions In 1984 he was assigned to the Anti-Terrorist Al€ r t Center first as a watch officer and later as a research analyst From t e besinning of his tenure until his arrest in November 0 1985 except for a brief period in 1980 he held clearances up to the TOP SECRET level which permitted him access to a variety of classified docQ ents -As stated in the United States U s intelligence cOIT unity l memorandum analysts in the operate en an honor system in that the analysts voluntarily limit their access to only those documents whic tbey perceive a need to inspect Unlike the defense establishment the intelligence community does not have a structured procedure establishing a need to know restricting the access of those possessing security clearances to specific categories of information The primary reason for the more relaxed procedure in the intelligence 18 co munity is a need for the analysts and researchers to have a ready exchange of ideas and a general awareness of events in parts of the world other than those for which they are responsible corr unity In the intelligence there is an overriding goal that analysis of world events not be made in a vacuum To that end Mr Pollard would as part of normal procedure be permitted access to a wide range of classified documents Not only would Mr Pollard have access to documents dealing with subjects outside his assigned specialty--the Caribbean--it was assumed and indeed expected that he would keep abreast of develooments in other areas of the world As a watch officer Mr Pollard was cbligatec to mcnitcr all incoming information germane to ter orist Furthe ore activities anywhere in the world Mr Pollard's superiors came to rely on his expertise in the Middle East gained through his prior ass ignments vIi th the Navy and his willingness to take the time to absorb available information such that he was called upon on many occasions to deliver explanations of the significance of events in the Middle East Indeed Mr Pollard's superiors sent him as the official Navy representative to two high level inte -agency i telligence developments i conferences dealing in part with the Middle East Because of his expertise in matters in that region it was anticipated by Mr Pollard and his superiors that he would be assigned to the Middle East desk as soon as a position was available and that it therefore was imperative thct he stay current on Middle East affairs 19 In spite of its full awareness of the above the United States has sought to depict Mr Pollard as actively ransacking the intelligence libraries to provide information to Israel Indeed the United States intended that he have such access While this distinction does not exonerate Mr Pollard from the charge to which he has pled guilty it clarifies that his access to classified documents regarding the Middle East was facilitated kno vingly by the U S GoverDnent and was not the product of his con rlvance IV lr Polla d's Decision to Provide Information to Israel At the outset the Court should be aware and the United States has not disputed that Mr Pollcrd did not join the U S intelligence community with the intent of providing information to Israel Instead as explained in Mr Pollard's version of the offense his decision to become an employee of the U s Navy was motivated by a desire to help the United States to fight communism and to have a neaningful impact on terrorism combatti g It was only after several years of frustration over aspects of u S policy that Mr Pollard even began considering an approach to the Israelis Finally when events in the Middle East threatened the interests of both the United States and Israel and when he felt that the United States was not providing to Israel that which was called for in the intelligence exchange agreements between the two countries did he make an overture to the Israelis to provide them with that information While one can scarcely condone the judgment to approach the Israelis and to 20 provide them with such information Mr Pollard's motivations were ideological not mercenary The corruptive effect of money on his conduct fully discussed in his statement came later In the beginning and for five months thereafter Mr Pollard received no money for his activity Moreover as further testanent to the non-mercenary motivation of his conduct he was in service for six years before he made his fateful decision to help Israel Lastly it must be noted that his motives were probed by polygraphy and on this issue he was found to be telling the truth--he acted out of ideology first not for money A Mr Follare's Mr Pollard has upbri ging P o-Israel Vie rooint explai ed at length the circumstances of his and religion which inculcated a sj pathy towards the State of Israel and which led him to previde information to it His Jewish heritage his trip to Israel extensive reading of Jewish and Israeli history and exposure to the attitudes of his family and friends naturally induced a strong pro-Israeli posture Mr Pollard's work experience only intensified this feeling towards Israel As an analyst privy to classified information he became aware of the true danger to Israel from its enemies in the Middle East and thought that the uncerestimated or did not appreciate this danger importantly Mr Pollard thought that the u s u s public More intelligence community was deliberately withholding information from Israel that was vital to its security even though formal intelligence exchange agreements provided that the information be shared with Israel He learned of he existe ce 21 of these exchange agreements and their contours from his role as a delegate to several joint U S -Israel conferences at which information was exchanged pursuant to the agreements Mr Pollard who had never hidden his feelings towards Israel on several occasions challenged the failure of the U S to provide certain documents to the Israelis and demanded an explanation from his superiors Not only did his superiors refuse to provide any reason for the policy of withholding information their replies often contained anti-Semitic overtones On one occasion vhen he protested the failure to turn over information regardinq Soviet chemical warfare capabilities to the Israeli intelligence counterpart Mr Pollard was told that Jews a e overly sensitive about gas because of their experiences during World War II B Frustration over Terrorism Concurrent with Mr Pollarc's growing alarm over the threat to Israel's very existence and the United States' reluctance to provide the information necessary to assist Israel was his increasing distress over the States th eat of terrorism to the United Mr Pollard always has viewed himself as being a loyal son of both the United States and Israel Accordingly when events like the bombing of the Marine barracks in Beirut occu ed Mr Pollard felt a rage both that the u s intelligence system failed to prevent such a tragedy and also that the United States failed to retaliate even though it was well aware of the culprits behind the bombing Because Mr Pollard questioned the political resolve of the United States to take the actions necessary to 'combat terrorism effectively he thought it 22 necessary to do all he could to assist the one country--Israel -that had terrorists demonstrated the fortitude to strike at The fact that the major terrorist organization in the world the Palestine Liberation Organization targets its operations almost exclusively at Israel and the United States rendered the decision more justifiable in his mind v Mr Pollare's Limitations on Delivery of Information Consistent with Mr Pollard's motivation in providing information to Israel were the limitations he imposed on the type of document attit de he would supply He did not adopt the blind that what was geod for Israel was good for the United States rather he realized that the interests of Israel and the Unitec States occasionally civerged Mr Pol ard accordingly insisted with the concurrence of the Israelis that he would not divulge information concerning U s military or intelligence capabilities or take any other action deemed to damage the U S national security benef t He provided only information he thought would the defense of Israel which fell into the following general categories 1 the weapon systems of Arab countries the intelligence structures and capabilities 0 2 Arab countries 3 daily message tra£fic concerning events in the Middle East 4 analysis of Soviet weapon systems which would probably be delivered to Soviet client states in the Middle East and 5 analysis of Jab leaders political intentions anc governmental stabi ity 22 Restrictions on the type of information which Mr Pollard supplied are hardly consistent with the United States' depiction of him One who sells state secrets solely for money is unlikely to anger his benefactors by denying them access to certain documents Yet Mr Pollard flatly refused Rafi Eitan's demand On other occasions Eitan asked for information regarding u s intelligence sources in 1srael Eitan also demanded doclli e ts concerning u s knowledge of Israeli arms dealings with other countries particularly China and u s States knowledge of Israeli intelligence efforts in the United Each time Mr Pollard would not provide such doclli entation or information despite Eitan ' s threats of recrimination VT Compensation A The Decision to Accept COffioensation The predominant theme in the United States' memorandum is that Mr Pollard's decision to deliver information to the Israelis was motivated solely by the allure of money Mr Pollard does not contest that he received compensation for 24 his efforts to provide classified information to the Israelis ·in all other respects the United States' memorandum is distortive of the actual sequence of events leading to that compensation As correctly pointed out in the United States' memorandum Mr Pollard was put in contact with Avi Sella' in June 1984 regarding a desire to aid Israel that Mr Pollard had professed to a mutual friend Sella asked that Mr Pollard provide a sample of the type of information to which he had access Mr Pollard die sc without requesting or receiving any remuneration Shortly thereafter Mr Pollard the Israelis receiving O a regular basis ccm ensation cOIT e ced agai providing documents to without demanding or Mr Pollarc and Sella only discussed compensation because Sella stated that standard practice dictated that all agents receive compense tion for their activities This policy probably reflected the Israeli's conviction that one who provided information or ideological reasons was less likely to stay the course than one who acted for the money Indeed when later Mr Pollard offered to rApay the Israelis for the money given him his previous handler Avi Sella stated that the offer was unacceptable because Rafi Eitan the head of the operation die r ot like his agents to discover morality 5 5 The United States attacks the veracity of Mr Pollard's offer to reimburse the Israelis for the monies given him by claiming that he initiallv told authorities that he had conveved his offer to Yossi Yaaur b letter but that he retracted the tatement when asked submit to a polygraph examination The actual Footnote Continued to 25 In the initial discussion between Mr Pollard and Sella regarding money a variety of options was explored Mr Pollard said that he was considering moving to New York so that his wife could further her career Sella obviously was concerned because such a move would deprive the Israelis of a source of information therefore he offered to provide a job for Mr Pollard's wife in the Washington area The problem with such an approach was that it could force Mr Pollard to involve indirectly his wife in his activities which neither he nor the Israelis desired Sella then offeree to pay Mr Pollard a sum vlhich would ccmpensate him for the income lost by his wife by remaining in Washington Such a proposal was not implemented imrrteciately and cnly in November 1984 did Pollard discuss and agree upon payments mon o t e Israelis and Mr him of $1500 per Accordingly Mr Pollard provided information to Israel for five months without receipt of any compensation and without any reasonable assurance that he would receive any in the future Obviously if the Israelis had decided to terminate the operation Footnote Continued of events was that Hr Pollard told authorities that he had asked Irit Erb to write Yagu t offer repayment of the monies The authorities became ccnfused when Mr Pollard said that he had not orally told Yossi of his offer and they assumed __ that he meant he had written a letter to Yossi instead of having Irit prepare the letter This confusion was natural since Mr Pollard had written Yossi directly regarding shipments of arms to __ the Iranians to defend Kharg Islana When the subject came up during the course of an extensive polygraph examination Mr Pollard clarified the authorities' confusion It is unfortunate that the Government at empts to accentuate this confusion eSDeciallv since it does ot otherwise chcllencre the t uthfulness cf Mr Pollard's offer of repayment to the Isr elis seque ce 26 in November 1984 Mr Pollard vlould have had no recourse against them His willingness to risk the possibility of arrest for five months without any tangible and immediate financial reward hardly is consistent tlith the image painted by the United States of him as a cynical mercenary Even more importantly the United States fails to mention that its polygraph operator specifically interrogated Mr Pollard on his motivations for providing information to Israel The polygraph operator found no deception when Mr Pollard stated that he acted primarily for ideological reasons B Mr Pollard's Spendina Habits • P ernaps of the l rl recognition that it cannot dispute the results pol Tgraph examinaticn it conducted showing an ideological motivation for Mr Pollard's actions the United States focuses on Mr Pollard's use of the money he received rather than his desire for l 'J L • Again Mr Pollard does not challenge receipt of the money nor the expenditure of it the picture 0 howeve he cannot accept corruption painted by the United States' memorandum Before he received any payments from the Israelis Mr Pollard and his wife had established a lifestyle which included alDost daily lunches or dinners at restaurants in the Washington area frequent purchases of clothes and books and entertainment On the other hand he and his wife rented a modest apartment owned a single dated nondescript automobile and were paying off s udent loans Mr Pollard was not massively in debt however anc he and his wi e's spending cid not exceec their 27 disposable income Accordingly he did not perceive the payments from the Israelis to be rescuing him from financial straits In November 1984 Mr Pollard and the Israelis agreed that he would be paid $1500 per month commencing immediately The Israelis did not give Mr Pollard any money for his efforts on their behalf for the previous five months Mr Pollard received $1500 per month for about nine months until the Israelis raised the amount to $2500 Contrary to the implications in the United States' memorandum Mr Pollard did not demand a raise but the Israelis offeree end he Eceived an increase because of the quality of the material being supplied by him In all Mr Polla c received approximately $25 000 in cash payments from the Israelis for the period from November 1984 through Noverober 1985 The effect of the money given by the Israelis was to upgrade Mr Pollard's standarc of living not to transform him and his wife into profligate spenders For example Mr Pollard and his wife went to nicer restaurants selected more expensive clothing and bought hardback instead of paperback books Also Mr Pollard and his wife made trips to friends' weddings and social events that they would have eschewed previously There is no contention that he or his wife have stashed any money in the United States or abroad or that they used the money for any illicit purpose Mr Pollard and his wife also made two trips to Europe that were sponsored by the Israelis The United States has delighted 28 in detailing the amount of money spent on those trips ·yet the United States overlooks the fact that the trips were required by the Israelis so that they could meet with Mr Pollard outside the reach of U S law enforcement jurisdiction When considering the extensive travel involved the minimum costs associated with the trips would have run into the thousands of dollars Mr Pollard did have luxurious acco modations While on many segments of the trips the Israelis urged that he enjoy himself to the maximum extent possible particularly since on one trip he and his wife were on their ho eymoon Furthermore the Israelis requested thct Mr Pollard rent a suite in one hotel in Paris vlhich cost over $300 per day so that meetings between them could take place there When the Israelis found a alternate meeting place Mr Pollard immediately moved to a·room costing $75 per nigh In addition he and his wi e travelled typically on coach fare especially between the United States and Europe and stayed overnight at modest establishments on many occasions The United States also emphasizes as part of its characterization of Mr Pollard as being motivated solely by lucre that the Israelis promised him that they were putting $30 000 per year into a Swiss bank account in the name of Danny Cohen While the Israelis showed Mr Pollard a passport in that name they never exhibited any proof that the Swiss account actually existed or that they had deposited any money into the account Furthermore the Israelis aili itted to Mr Pollard that the account if it indeed existec would be accessible by him only o the countersignature 0 an appropriate Israeli agent 29 Accordingly Mr Pollard had little if any expectation of receiving funds from this source and indeed never obtained money from the account Furthermore the United States has determined that the account was devoid of funds It is absurd therefore for the United States to intimate that the bank account drove Mr Pollard to further efforts cn behalf of the Israelis VII Mr Pollard as a Recidivist In its sentencing memorandum the United States discusses several other episodes in which Mr Pollard divulged classified in or ation to other persons allegecly not entitled to access to the information Mr Pollard does not contest that he provided information to such persons however he does take issue with the version offered by the G ited States of the circumstances surrounding the delivery of information Court to realize that the United St tes It is important for the almost invariably relies on the vord of the recipients of the information when discussing the incidents With good reason the credibility of those recipients is open to substantial doubt In no instance did the recipient of the information voluntarily corne forward immediately to disclose Mr Pollard's conduct to the proper authorities In a few cases the recipient in what is reminiscent 0 approached the U S investiaators - a ter -' arrest became known a race to the courthouse news of Mr Pollard 1 s These belated confessions can be attributed solely to the recipient's fears that Mr Pollard would 30 disclose the delivery of information and therefore subject them to criminal charges Those recipients accordingly thought it preferable to provide their version of the incident first ther In cases the United States learned of the passing of information only after notified of the incident by Mr Pollard Only when summoned by the investigators did those persons provide an account of the passing of information In spite of the tardiness with which the recipients of information from Mr Pollard provided 0 version charge any laws u s authorities yith their the transaction the United States did not see fit to 0 those individuals with violations of the espionage Even stranger the United St2tes did not even subject the recipients to a lie detector test to ascertain either the accuracy 0 their statements or thei mot ves receiving information from Mr Pollard in seeking and By contrast the United States examined Mr Pollard thoroughly while he was connected to a polygraph and is satisfied with his answers Nevertheless the Unitec States insists on providing a description of the incidents which relies primarily on the version given by the recipients of the information rather than Mr Pollard's polygraph-tested expl2 naticn p _ Peter Mole Mole was an officer of the Australian Navy assigned to act as liaison officer with the United States pursuant to an exchange of in ormation agreement Because Mole was an officer of one of the United State's stronaest allies and assigned specifically to recei le classi iec infonnation on behal 0 his government he was permitted to have access to information passing through the Department of Navy intelligence center On several occasions Mr Pollard was instructed by his superiors to ensure that Mole e given any documents he requested regardless of the type or secrecy level of the document Even though many of the documents contained the notation NOFOP N which forbids dissemination to foreign governments Mr Pollard's superiors ordered complete access for Mole and justified the order by declaring that Mole was to be considered a u s employee Accordingly when Mole asked Mr Pollard for information relating to U S -New Zealand affairs Mr Pollard saw no impropriety in providing a document responsive to the request acknowledged t e Indeed investigators later not only extent to which Navy personnel routinely gave Mole access to restricted classified info mation but they devoted a lenqthy debriefing session to discussing the latent security problem of permitting British Canadian and Australian liaison office s to have carte blanche in obtainins classified documents B Kurt Lohbeck Joe Harmon and Laura Caro Neither Lohbeck Harmon nor Caro possessed security clearances and Mr Pollard does not contend that his divulging of classified his superiors i formation to them was in any way sanctioned by Mr Pollard's actions were not however examples of recidivist behavior but rather reflected an unfortunate desire to impress his friends with the importance of his work and his knowledae of areas of interest to them Interestingly the United States has not contended that those individuals who 32 received information from Mr Pollard passed it on to unfriendly countries or security u ed it in a manner detrimental to the national Indeed the United States' memorandum is devoid of any claims of damage arising from the passing of information to those persons While this lack of damage does not c'ondone the action it does justify a more restrained punishment 6 The United States also attempts to assign several sinister motives to what basically was a simple memory lapse Mr Pollard truly was unable to remember the details surrounding the cisclosure of i formation to the above individuals This lack of recall signifies neither a cavalier attitude towards classified information nor a realization that the disclosures were inconsistent with his motivations in passing information to Israel Insteae Mr Pollard's temporary memory lapse can be attributed simply to his focus on the aspects of his dealings with the Israelis Given his overriding desire to provide all information he could give regarding the extent of his activities 6 In Lohbeck's case little damage could have occurred As a recognized liaison to the Mujaheddin Lohbeck not only had access to several ke u u s officials includinc Robert McFarlane but also to inteliigence reports On sever l occasions Lohbeck sho ved Mr Pollard classified documents with security caveats so hiah that he was unaware thev existed Mr Pollard therefore thought it acceptable to pro ide Lohbeck with relatively less sensitive information concerning events in Afghanistan Mr Pollard provided such information in an effort to assist Lohbeck in crossing the border into Afghanistan anc to further arms sales that they were attemptina to arrancre For unexPlained reasons inves ig tors did not se k details regardins LOhbeck's ties with u s officials cr the documents shov rn Mr Pollard by Lohbeck indeed on two occasions an investigator invclved in M Pollard's debrie ing specifically inst ucted him to cut short narr2 ives concerning those topics on behalf of the Israelis it is not unnatural that he would lose track of unrelated incidents Furthermore the United States has not suggested that he was in any way deceitful regarding his answers once he recalled the events on which he was bei g questioned c The South African Affair While he was still a graduate student Mr Pollard struck up an acquaintance with a military attache at the South African embassy This relationship begun at a reception at the South A rican embassy continued through correspondence and occasional phone calls clea ance Because Mr Pollard did not pcssess a security at this point the South African's motivation in speaking to him could be attributable to several innocuous factors including an appreciation of his knowledqe African affairs rare among friendly relations with fu ericans nericans 0 South a desire to promote and perhaps less lofty reasons such as an indulgence of his craving for ego gratification When Mr Pollard co enced his employment with the Department of the Navy he thought it opportune to utilize his contacts with the South Africans At that time relations between South Africa and the United States were strained and intelligence exchanges severed because of the expulsion of the u s military attache from South Africa for espionage activities Because the absence of information from South African intelligence services left a hole in the U S intelligence gathering network Mr Pollard thought it imperative to establish a link with the South Africans Before making any 34 ove tures to the South Africans however he first obtained the consent of his superiors LA Ln VIII Mr Pollcrd's Post-Arrest Conduct The Unitec States' description of the events which took place from NovE nber 18 Ncve ber I 1985 throuqh l-1r Pollard's arrest en 21 are correct invest qators Mr Pollard deliberately misled U S as to the nature c n s activities on behalf of Israel in aD' effort to per li t his Israeli handlers to escape Mr sllard Gees not ask the Court to excuse this COr-elict but to rec8q ze that t is was the assurances of his him by protec i g t e result of his desire to reciprocate ha dlers them Such that in a crisis they would assist gulli ility is understandable when one appreciates the ideological motivation for Mr Pollard's conduct ins i ct Indeed this ideological motivation supplanted his for personal su vival hours prior to his arrest a brea k for espicnage dur g those critical cays and In that time Mr Pollard never made until he hac con£essec several times to the act of al eit withoct ide tif i g telegraphed his every move to his war -antless searches of his his handlers he i terrogators apar '1le t a d he ccnsentec to he drove amateurishly to a promised haven that never existed a t the Israeli Embassy Of cou se whe Mr Pollard was fi ally atte pted to bargain his situation far 36 arrested he never that of his hc clers If - his passing of inf ormation to the Israelis had been riven solely by money as the Government persists was the case Mr Pollard most assuredly would have tried upon his arrest to obtain a bargain in return for did not happen iGe tification of his confederates This This is not a condonation of this conduct but rather an explanation that serves to underscore the profound ideological corr itment 0 concomitantly the utter Mr PollaTe to his conduct and he demonstrated at a time when aivete his life was ccllapsing around hin P_ Hr Follard's ceneration · ith the GC' 7er unent and i- s Value The Court should by Mr a sc weigh heavily the cooperation extended Pollar cegi ni t ree mont s after befcre a plea aqreement was executec leniency tv t e United for a life SE te 1Ce or S tes 2 eXc2Dt s ecific h s arrest a d well Without the promise of any its-corr itment te not to ask of yeats but only for a substantial period of i J carceration Mr Pollard begar providing full details of his activities on behalf of the Israelis hou s The ensuing duri g whic ce riefings c8nsQ ed Mr Pollard prcvided interrogators en the following subjects ­ _i several hundred info ation to his U S 35 Mr Pollarc is investigation conti uing t ough to assist in the ongoin crimin21 interviews and grand jury testimony For example he has appearec before the grand jury investigating the role of Avi Sella twice i the last month to detail Sella's direct request and receipt of classified information from him Because of Mr Pollard's cander in describing the extent of the information passed to Israel the United States has been able to gauge more accurately the extent ef any Gamage caused by Mr Pollard's actiens and to take effective countermeasures fcrthright ess addition his In has encbled the United States to con ront the Israelis regarding the truth of the statements thev submitted to u s investigators Mr Polla d's cooperation also has extended beyond identifying the scope of his activities for Israel concern in the u s A prevalent intelligence community was hew he could pass documents to t e Israelis for eighteen months without detection Mr Pollard net only suppliea details of his ability to cirClli vent sec rity measures at his workplace and 40 t e intelligence libraries he also provided advice on how best to rectify those holes in the security net For instance Mr Pollard explained hew modems which permit co unication with a computer by phone represent a severe security problem since the high speed tra smissions could be intercepted by enemy agents acting outside secure facilities who could quickly access massive arnou ts of classified information Ee also discussed how secretion of a si gle flo py disk from a secu ed area could be as damaging as t e e oval c hundrecs cf classified documents ad tion In he a vised i vestigators that the State Department Int211i ence a c Resea c Bu eau is probabl the cpti um location fo a e emy s y at hu c ecs cf si ce a alvsts i ellisence 2pcrts Seve a t es duri g Bureau routinely receive weekly as part of thei Hr bee had Pol a 's imFressive ar c his previous re of h s c vities fc to give various The i vestiqatcrs employme t evalu tion ce an L o cKe ne Mr Pollard's debrie£ing had p ison hie implemented cooperation with ques one 2 o cOIT@ented favorably on the ideas Others assured him that reccIT endatic s duty his marathon debriefings of icials of intsll ge ce ase cies various t e Israel Uni ed Sta es c ncedes so fcvorable inte rosation beyond the Fer example after te minated i telligence alse was so he was brought back from c icers a briefing that Mr Pol ard was candid and investigation of the Israeli involvement in the matter could not have progressed as far as it did without his assistance The Government's description of Mr Pollard's cooperation however is lame in the extreme Without the benefit of the detail which is supplied above there is no way the Court could possibly discern the level depth and value of Mr Pollard's cooperation By failing to give Mr Pollard proper credit for his cooperation the Government has not honored its part of the plea bargain Instead it offers the sh illness of an overstated argument to support its claim for a substantial sentence This is not fair If the Government wishes to attack Hr Pollard's hcnesty it is free to do so but not at the expe se of failing to speak as candidly ane openly about his valuable cooperation as it has about his criminal conduct B Mr Pollard's Ccr duct and Treatment In Prison In addition to cooperating extensively with the prosecuto s and officials of the U S intelligence community Mr Pollard has displayed a compliant attitude towards prison and jail officials Mr Pollard has been a mcdel prisoner even in the face of disturbing patterns of harassment Since his arrest Mr Pollard has been kept in administrative detention resulting in isolation from others and curtailed exercise phone and visitation privileges This detention has not been imposed because of any perception that Mr Pollard is a discipline problem but rather because of a concern that other prisoners would cause harm to him Because of the nature of the offense to which Mr Pollard has pled guilty and because of his Jewish background prison 42 officials fear that he is a ·target for several prison groups In particular Mr Pollard has received threats from the Aryan Brotherhood which is renowned in the prison system for its anti-Semitism 8 In spite of this Mr Pollard has requested on numerous occasions that he be put in less restrictive surroundings so that he may enjoy the same privileges as other prisoners even though such a move would expose him to greater danger An added burden for Mr Pollard is that several of his guards have displayed a bigotry similar to that of the Aryan Brotherhood as revealed not only in derogatory remarks to him but also in unusually harsh treatw nt For example on one occasion Mr Pollard's jailors at Petersburg Virginia told him he was going horne to Israel then chaine him by the throat waist and feet and placed him in a van for transport to the federal prison at Le visburg Pennsylvania At the beginning of the lengthy trip the jailors delighted in taunting Mr Pollard with anti-Semitic remarks At Lewisburg Mr Pollard was treated erroneously as a discipline problem with further restrictions cn visitation and phone privileges In addition during the brief visit that prison of icials permitted him to have ith his wife 8 On tnree P 0 11 ar d rece vea warnlngs seoarate occaSlons x from other inm tes that the Aryan Brotherhood has targeted him for assassination Prison of icials respectful of the justi iable pride which the Brotherhood takes in fulfilling its threats has atteffiotec to monitor known Brotherhood members in the prison AC80raing to ir ates however the Brotherhood has promised to put a sleeper or a clandest' ' le member of the group in the prison o car y out its avowec executicn 43 his hands were cuffed and placed in a box which was designed to tighten the handcuffs if he attempted to move his hands Excessive movement of the hands in the box could result in a broken wrist Even though intercession by the u s Attorney's Office provided a reprieve from this treatment its pervasiveness grounded in bigotry and the expectable hostility of our society to spies combine to make Mr Pollard's incarceration especially brutal c Mr Pollard's Physical Emotional and Judgmental Deterioration It is not surprising that any person incarcerated for more than a year will suffer breakdowns in health both physical and mental It is also the case that his judgme t will not always be as acute as in other less stressful circumstances In Mr Pollard's case this deterioration has been rapid and profound It is compounded by the fact that his wife Anne Henderson-Pollard has to his way of thinking suffered even more than he--and he has been able to do nothing about it He has witnessed her decline in health as evidenced by the loss of more than sixty pounds an excruciatingly painful surgery numerous endoscopic examinations extreme dependence on pain medication and a marked deterioration in her morale She has been subjected to the onslaught of media people each of whom carry a special message of why it is important for her and or her husba d to speak to them Both Mr and Mrs Pollard have lapsed in this regard and against bette judgment and advice have spoken to the press Hopefully this will be seen as an aberration nothing more 44 ­ Rather these are the acts of a person who notwithstanding valuable cooperation has been held up to vilification and scorn whose motives although verified as ideological have been condemned as mercenary whose lifestyle · although demonstrably modest has been described as profligate and whose personal integrity although tested severely during his cooperation has been impugned It is reflective of the desperation that grips these people in this the lowest moment of their lives Mr Pollard's incarceration and its special debilitating features are discussed above at p 43 Here we wish the Court to uncerstand the special torture this situation represents A family is destroyed a marital relationship severed the daily threat of bodily herm and the specter of long-te imprisonment and isolation all coalesce in this case with a force far than usual greate This is because no degree of intellectualizing can correct the crushing realization that Mr Pollard may have no life before him and this notwithstanding that he feels he has betrayed no one and never intended or did harm to the United States IX Possibilitv of Percle A factor which the Court should consider in imposing sentence is the likelihood of whether at any time during his incarceration r Pollard will be paroled In this instance given the nature of the offense parole is highly improbable • sentencing guidelines call for any person convlctec to se ve L o The • esplonage at least 100 months or eight and one-thirc vears in prison before he is even considered for release on parole See 28 CFR §2 20 Furthermore there is no guarantee that the Parole Board would release Mr Pollard on parole even after he served 100 months especially since to the best of our knowledge the Parole Board has not paroled one person convicted of the espionage laws in the past ten years The Court accordingly could reasonably presume that Mr Pollard will have to serve fully any sentence imposed by it less any reduction for good behavior Applying this measure in any sentence in excess of five years Mr Pollard will likely serve fully two-thirds of the high end of any sentence imposed by the Court See 18 U S C 4206 d • Conclusion Since the codes of Hammurabi the laws have evolved to a simple but profound proposition viz that punishment should fit the crime Enlightened sentencing principles in today's jurisprudence look beyond the sensational aspects that often accompany the establishment of guilt in favor of measuring the severity of the offense This is especially true where the defendant has pled guilty to the crime In this case notwithstanding its sensational features where an enormous volume of information was transmitted improperly it was done without the intent to and without the result of damaging the nation's security This case is lacking the essential ingredient that would make this a heinous crime the beneficiary was not and is not the enemy but one of our 46 closest friends By this we do not argue that what Mr Pollard did was right or that it does not merit punishment However the punishment must be appropriate to the actual severity of his criminal conduct country Applying that measure no harm has come to the Accordingly Mr Pollard's sentence ought to reflect this indisputable fact Anderson Hibey Nauheim Blair 1708 New H mpshire Ave N W t'l ash i ng ton D c 20009 Attorneys for defendant Jonathan J Pollard I 't i