'A failed defense attorney, outrageous proceedings and a prisoner turned into a political bargaining chip'
Eliot Lauer, a renowned American lawyer and a religious Jew, who has been representing Jonathan Pollard voluntarily for the past 15 years, analyzes the reasons for the Israeli spy's long imprisonment. In a special and exclusive interview with Yedioth Ahronoth, two weeks before Pollard's release from the North Carolina prison, his attorney reveals some of the drama that took place behind the scenes and explains what has to happen in order for Pollard to fulfill his dream and make aliyah.
On the one hand, the Jerusalem mayor was about to arrive at his office. Nir Barkat accepted Lauer's invitation to discuss the Keren Or association for blind children with multiple disabilities. The association's headquarters and the building in which the children are treated is located in Jerusalem, and Lauer, a senior association activist and its legal advisor, planned to use the entire hour set for the meeting in order to convince Barkat to offer more aid to the special children.
A minute before Barkat entered, the phone rang. It was the manager of the federal prison in Butner, North Carolina, where Lauer's most famous and very different from any of his other clients, Jonathan Pollard, is jailed. After 30 years in prison and 15 years since Lauer began representing him, the news they had hoped for so much finally arrived. "He told me he had just received an email from the parole board, that they had decided to release Jonathan."
Lauer knew that "we must first of all inform Esther (Pollard's wife) and Jonathan himself, and issue a proper press release, before the press finds out about it from other sources, and then answer the hundreds of journalists who are about to call." In the meantime, Barkat was waiting. Lauer decided to inform the couple, issue a statement, and deal with the press after the meeting. "You can't call a prison inmate directly. You have to leave the inmate a message and ask him to call you. That's what I did, and in the meantime I telephoned Esther."
Lauer decided to skip the manners, and when she answered in Hebrew, "Shalom Eliot," he said to her: "Hodu Lashem Ki Tov" ("Give thanks to the Lord for He is Good"). That was enough. Esther understood, said "Be'ezrat Hashem" ("With God's Help") and broke into tears. "I am a religious person," Lauer says. "I believe that at the end of the day, it's our job to make an effort - but it's clearly in the hands of God Almighty."
Shortly afterwards, Pollard called from prison too. "He was delighted of course. After so many disappointments, finally some good news. Jonathan was composed and gracious for our assistance and expressed thanks that Esther's long ordeal was coming to end and they would be together. He mainly asked me to thank all those who supported him throughout the years. Being in prison for so long can destroy anyone. Jonathan wasn't destroyed. He was able to maintain his vitality and his intellectual strength - both thanks to his personality and thanks to the huge support he received from his wife and from the large community which volunteered to support his struggle."
Like in the Book of Esther
Jonathan Pollard is slated to end his jail term at the Butner prison on November 20. That will also bring to an end, at least partially, the most serious affair ever in Israel-US relations. The affair left many wounds and burns on both sides of the ocean, but there is no doubt that the highest price was paid by Pollard himself.
When he was jailed, no one believed he would remain in prison for so many years. The people who worked for his release believed they would be able to get him out of Butner way before the time arrived for a parole request for life imprisonment. That may also be the reason why Lauer appears hesitant during the interview, afraid to jeopardize the upcoming release in any way.
Nonetheless, as part of the effort to raise funds and support for the Keren Or association, he agreed to give a rare interview to Yedioth Ahronoth and Ynetnews. Lauer, a religious Jew, is a senior partner in Curtis, Mallet-Prevost, Colt & Mosle LLP, one of New York's most famous law firms. The law firm, which was founded in 1830, has offices in many countries such as Kazakhstan, Dubai and Oman. It represents energy corporations in places like Venezuela, Mexico and Libya.
Lauer himself has represented major companies like Glencore or Cisco in different affairs. He is very different in his profile, background and conduct from Pollard's wife and from the crowd of noisy right-wing activists and politicians who have been surrounding Pollard, and some would say exploiting him, since his arrest. He speaks softly, eloquently, very cautiously, without resorting to provocations or accusations. He sticks to the details and is extremely familiar with them. On the other hand, it seems that some parts and some people in the tragic and complicated Pollard affair, as explained below, have really gotten on his nerves.
Lauer was already a successful New York attorney in March 1987, when Pollard was sentenced to life in prison. "My wife's uncle, who is an ardent Zionist, called me and asked if I could do something for him. I pulled out the sentence and read it thoroughly. It revealed clearly that Pollard had blatantly violated the terms of the agreement with him, by giving an interview to Wolf Blitzer (at the time the Jerusalem Post DC bureau chief). I said to the uncle, 'It looks very problematic. I don’t know how I can help.' Only many years later, when I read the entire file, I realized that Pollard had not violated the terms of the agreement and that his lawyer had really screwed him up."
It was in 2000, when another Jewish activist approached Lauer. "A very wealthy businessman, a client of mine, who is also a philanthropist, said to me: 'Jonathan Pollard is rotting in jail. He hasn't had a lawyer for many years. I am willing to start a foundation to finance his legal defense. Are you willing to look into the case in order to ensure that I am not pouring money down the drain? Can you check if there is anything that can be done? If you can, I will pay you to represent Pollard.'
"My partner Jacques Semmelman and I reviewed the entire case. We were convinced that outrageous injustice had been caused here and that we could help. I informed the client that we were with him, but that I thought we should do it pro bono, that there was no need for his to start a foundation."
As far as he is concerned, his moral duty was clear. "I have four children. They all got to grow up in a good and safe environment and receive excellent education. They all have unusual skills. Every day when they came home from school, I would ask them: 'What have you done today for the Jewish people?' When I was presented with the opportunity to handle Pollard's case, I felt like in the Purim story, when Mordechai tells Esther: 'Who knows whether you didn’t come into your royal position precisely for such a time as this.' She argues with him whether she should go to King Ahasuerus or not, and he says that it is for this precise moment, the ability to help the Jewish people, that she has received this unique access to the king. In other words, how can I use my unique position in order to help with something.
"I knew we would have to overcome huge obstacles, because so many years had passed. But I believed it was possible to raise public awareness to the injustice, to how horrible this case was, and to considerably shorten the prison term."
The spying affair
Unlike Pollard and his wife, who placed a large part of the blame for the heavy punishment and the ongoing arrest on the Israeli government's conduct, even after the affair broke out, Lauer puts the blame on other factors.
Above all, Lauer blames the lawyer who represented Pollard in the first trial court, Richard Hibey, a very famous American attorney. "The administration representatives said in court that Pollard had blatantly violated the agreement with him, but that's absolutely absurd. How can one make a serious claim that the interview with Blitzer was a breach of the agreement, when it's clear that one cannot go to jail without governmental approval.
"The lawyer should have screamed in court that it's a false claim. After all, Pollard had every reason to believe that if Blitzer was meeting him in jail, in the presence of administration representatives, it has been approved. In addition ,he didn't stand up and scream when they (the administration) blatantly violated their agreement not to demand life arrest, and then 'forgot to appeal the verdict on time."
Did he do it on purpose?
"Hibey is a very talented and skilled lawyer. If you Google his name with the word 'Palestine,' you'll find out that in at least one of the court cases in the United States involving Palestinian terrorists, he represented the terror organization. You can understand whatever you want from that. He refused to talk to us, so I don’t know what went through his mind when he was representing Jonathan. Of course it's easy to criticize the lawyer's conduct in retrospect in any lost case, but not to file one page of an appeal?! There is no excuse or reasonable explanation for that."
What is your theory about that? Did he have an ulterior motive?
"I think it's too conspirative. I think he simply gave up on Pollard. I can't tell what goes through another person's mind. All I can show is that according to his conduct, he wasn't really defending him."
The second factor attacked by Lauer is the American prosecution and intelligence community. "They went around their commitment not to demand life imprisonment in a sophisticated and smart manner. A day before the sentence, they submitted to the judge two memos from American Secretary of Defense Caspar Weinberger. One was a classified 46-page document, and the other a public four-page document, which was completely outrageous. In the open document, Weinberger wrote that Pollard had caused more damage to the United States than any other spy.
During that same period, three senior government officials were exposed for spying for the Soviet Union and were sentenced to life in prison, each. Weinberger wrote to the judge that Pollard had caused more damage to the United States than anyone else and that the damage he had caused should therefore be a factor in his sentence. Weinberger did what we call in the Talmud "Kal Vachomer" ("all the more so"), and the judge understood that if each of them got a life sentence and Pollard had caused more damage than anyone else, although it wasn't true, then all the more so - Pollard should be sentenced to life in prison. They didn't use the words 'life imprisonment,' but it's clear that that's what they did in this statement. And that was a blatant violation of the agreement."
Israel wasn't open and honest with the Americans after Pollard was caught. The Americans realized that the Israelis were lying to them. Didn't that contribute to the judge's decision and to the administration's serious attitude towards him?
"I don’t know what made the judge act the way he did. One can see that the judge was very influenced by the administration's opinion, which was operating during that period in a situation of extremely severe tensions with Israel. I don’t know if anyone said anything to the judge in private, or said anything inappropriately. One can only wonder whether because of Israel's conduct, the administration saw a clear American interest in severely punishing Pollard in order to deter others."
Lauer believes that one of the hidden motives of the administration officials who investigated the affair to make the judge aggravate the Israeli spy's punishment was actually finding out that his actions were not that serious.
"They were concerned that although they had investigated the issue for a year and a half, they had failed to find any significant damage that had been caused. Pollard gave Israel a lot of information focusing on the Arab abilities: Saddam Hussein's chemical abilities, Syria's military abilities, the location of Arafat's headquarters in Tunisia, etc. All these things were important to Israel, but did not have the ability to fundamentally harm the United States' national security. There is no real evidence that Pollard's spying led to the exposure of sources or modus operandi."
The CIA papers reveal a very different story from Pollard's story about himself - that he was an adventurer, a liar, that he used drugs, that he was greedy and that he didn't hesitate to transfer the information in his possession to other elements which were not Israel, like China for example.
"Those are all lies. He contacted Israel not in order to receive money. The money arrived much later, when he was already in the midst of the affair. The sum he got was insignificant, and that cannot erase the fact that his initial motivation was to help Israel. It's clear that what he did was wrong, foolish. It's not something I would have done, and today's Jonathan - with today's maturity and outlook - knows he should have used other moves in order to make the decision makers in the United States give Israel the information without doing what he did. But to present him as a lightheaded person who says, 'Wow, wouldn't it be nice to be a spy,' is simply untrue.
"Pollard acted out of panic. He discovered that information which was promised by the US to Israel by Kissinger in 1974, as part of the disengagement of forces agreement with Syria on the Golan Heights, was not provided to Israel at the White House's orders after the bombing of the reactor in Iraq in 1981. Pollard was convinced that this information was crucial to Israel, when he saw what Saddam Hussein was doing. He reacted emotionally, and there is no doubt that that was a completely erroneous overreaction, but that was the real reason for his actions."
The administration claimed that Israel had given some of Pollard's information to the Russians.
"It's a journalists' invention, and people are quoting it as if it were gospel truth. Anyone who writes about the Pollard trial should look for a memo called The Victim Impact Statement, which is a document provided by the administration as to the extent of the damage the defendant caused the victim. In this case, the review was prepared by the prosecution itself, on behalf of the US intelligence community. One would expect the review of the victim here to describe horrors, terrible things. But the review prepared by the US prosecutor describes only two relatively marginal aspects caused by the Pollard affair: Demoralization in the organization he worked in (the US Naval Intelligence Command) and anger among the Arabs, who thought the United States had given Israel information about them without Israel giving anything in return.
"Our anger towards the lawyer stems from this point too - that he didn't even try to appeal Weinberger's statement. If the administration wants to claim that certain damage or another has been caused, it must provide proof of that. If Weinberger says something, he should come to the court and testify about it. What happened in practice was that no one appealed and the secretary of defense's outrageous letter was perceived by the judge as a fact. He decided not to take any chances and sentenced Pollard to a heavy punishment."
Lauer diplomatically avoids the question about an American Jew's sensitivity when deciding to take on such a sensitive case which relates in essence to the relationship between US Jews and the State. One thing's for sure: When he took the case in 2000, being identified with Pollard was very, very unpopular. "And I am glad and proud that our office agreed to support me and take this case voluntarily."
In the spring of 2000, Lauer arrived at the Butner prison for the first time and met Pollard. "I explained to him who I was and that I had come to check if I could help. I explained to him about my skills and how I thought we could take the case forward. He agreed to let us represent him."
What was your initial impression of him?
"Very intelligent, very up-to-date on what was happening in the world, in Israel, in the world of science. These abilities make the 30 years in prison story particularly tragic. What did he miss? What did the world miss while he was sitting there?
"He has no Internet access, but he is a bookworm. He reads voraciously -history, biographies, technical publications, philosophy. He is a very intelligent and deep thinking individual with sophisticated and informed views on an informed of topics. .
"At the same time, I saw how he keeps in touch with many leaders and different elements - politicians, businesspeople, religious leaders, community heads and others, who want to help him.
"Jonathan is very involved in studying and thinking about energy and the field of transportation. He writes and studies in this field, and these are likely the fields he will want to focus on when he gets out of prison - to contribute to America and to the world through his knowledge and brilliant mind in this area.
"Of course I also found bitterness in him. He is disappointed by so many people, and mainly by the proceedings carried out against him. Another immediate impression was He does not look well. Thirty years in prison is not good for anyone's health. Without getting into details - it is well reported - the medical emergencies he has sustained these past years. It's apparent that he is not in good health and needs better medical care.
"I discovered a person who is very realistic about his case and about the political scene in which this case plays a part."
Did you encourage him to express remorse?
"I didn't have to encourage him. He has expressed deep and sincere remorse on so many occasions. Jonathan Pollard feels terrible with what he did. He knows, in his own words, that he "screwed up." He feels terrible about the results of what he did to himself, to his family and to many others who were hurt. He expresses his personal regret on many occasions, both in writing and verbally."
Lauer and his partners filed a series of detailed appeals with the court, clinging to every possible argument, in order to reopen the case. The main argument was Pollard's misrepresentation in the first trial court - denial of effective assistance of counseling. The result of all these appeals was a complete failure. The court ruled that the time in which such doubts and appeals could be submitted had long gone, and that the case was essentially closed and conclusive.
"That's what's nice and problematic about the federal method - you have one chance to attack the decency of the proceedings carried out against your clients. If you fail to do that on time, all that is left is to be pardoned by the president, or to be released on probation, which happens in case of a life imprisonment usually after 30 years."
The possibility that Pollard would be pardoned by the US president became less and less likely too and, according to Lauer, that was also the result of the American administration' improper conduct. "Even before I got into the case, in the Wye River agreements in 1998, Pollard was turned into a bargaining chip in the peace process between Israel and the Palestinians. That greatly complicated his situation in an unfair manner, and it was the administration's fault."
But it was Prime Minister Benjamin Netanyahu who demanded to receive Pollard as part of the agreements. President Bill Clinton agreed, and it was only CIA Director George Tenet's threat to resign if the president went ahead with it that sealed Pollard's fate and left him in prison for many more years.
"I don't address diplomatic issues and I don’t know what was said over or under the table. I just think that what happened is well described in Dennis Ross' book, Clinton's advisor. He explains that when Tenet said to Clinton, 'If you give Pollard to Netanyahu, I will resign,' Clinton asked Ross, 'What should I do?' Ross reveals that he told the president: 'You don't have to give Pollard to Bibi now. You can save him for later, for the final agreement.'
"The moment they did that, poor Jonathan Pollard turned from a prisoner who suffered injustice to a bargaining chip! And that wasn't Israel's fault, but rather an American decision which may have been efficient policy-wise, but from a perspective of criminal law, of the legal system, of moral values, it's outrageous! We Americans take pride in the fact that the legal system is completely free of political considerations. If that were the case, Pollard should have been released after 13 or 10 years! Turning him into a bargaining chip was a disgrace.
"And so it goes on and on. Only recently, in 2014, when Prime Minister Netanyahu was urged by the administration to agree to release the third wave of security prisoners, Secretary of State Kerry said he would recommend to the White House that Pollard would be released as part of the deal. That never happened, but the fact that Kerry said that is part of the forbidden politicization of Jonathan's fate."
Many say that Pollard's conduct and the conduct of the group surrounding him, which accused the American presidents of being anti-Semitic or portrayed Pollard as a prisoner of Zion in the Russian Gulag, rather than as someone who was convicted of heavy offenses against the US, are the real reasons for the fact that he has been sitting in jail for so long.
"I can’t respond to what others claimed or did. We, my partner and I, never claimed or saw any signs of anti-Semitism. What we saw was huge inertness within the administration which led to an unfair life imprisonment and unwillingness in the White House to make the right move and do Pollard some justice. In 1998, they also turned him from a prisoner into a wide-scale diplomatic settlement."
Connections in the US government
Since the court failure, Lauer and his colleagues used their extensive network of connections in the US government corridors and brought letters from everybody who is somebody, calling for Pollard's release. Former Secretaries of State Henry Kissinger and George Shultz and former CIA Director James Woolsey are only three examples. That didn't help either.
"You have to ask Presidents Clinton, Bush and Obama what went through their minds when they turned down the pardon request. Any other answer would be an irresponsible speculation. We must remember that pardons are rare and that the president is engaged in numerous other things."
Lauer admits he was optimistic years ago that he would succeed in getting a pardon or parole before 30 years would pass. He was wrong. "A year ago, when we arrived at the parole board, I was certain that we would succeed this time, that they would agree. And we were disappointed again. Of course Jonathan was more disappointed than I was. After all, at the end of the day I go home to Lawrence and he stays in Butner's Federal Correctional Complex ."
A year later, when Pollard arrived at the parole board again, as the 30th year of his imprisonment drew nearer, the response was finally different. Several media outlets in the US argued that the release should also be seen on a political background, as compensation from Obama for the nuclear agreement with Iran. Attorney Lauer strongly rejects this assumption:
"It's simply not true. According to US law, a life imprisonment ends and is converted into probation, unless the parole board discovers that he committed serious offenses during his imprisonment or that there is a reasonable concern that new crimes will be carried out following his release. These two are of course irrelevant in Pollard's case. He was an exemplary inmate. We requested and received a statement from the administration that there is no possibility for him to carry out additional crimes. Pollard no longer has access to new information, and even if he has kept all the information in his head throughout these 30 years, we are talking about information which is useless today.
"If after 30 years the administration had acted differently and had found reasons not to release him, it would have been exposed to extremely harsh criticism and would have faced a public and legal campaign which would have looked into their conduct on the highest levels. They understood that very well."
Lauer says Pollard has been spending the past few days preparing for the happy coming day in November. He informed the parole board that he had found a proper workplace in the New York area which is willing to take in the released prisoner. Beyond that, and due to considerations he asked not to reveal, the rest of the details about the day and manner of release remain confidential.
Pollard will be released according to the conditions set by the parole board. These conditions may be changed over time in the form of less supervision and even an exit permit from the country, or may not be changed if the person is considered a danger to his surroundings. In order not to be subjected to the parole board's authority, Pollard must rely on President Obama's generosity.
"We will welcome any gesture on behalf of President Barack Obama in the form of mitigating the sentence in a way which will simplify the process, because there is no reason for Pollard to stay in a supervised early release program. The president has the authority, as a goodwill gesture, to limit the sentence to 30 years and thereby end it completely, allowing Pollard to become a free man and to fulfill the dream he has told me about many times - to make aliyah to Israel."
The Keren Or Center
Eliot Lauer come to Israel every year to meet with the management and staff of the Keren Or Center. This year, he arrived immediately after Yom Kippur and stayed in Jerusalem for two weeks. We met with him on his last day in Israel.
"Keren Or - the Jerusalem Center for Blind Children with Multiple Disabilities was founded in the mid 1970s by Jacob Igra, who retired from the management of Beit Chinuch Ivrim, the Jerusalem school for the blind. Igra realized that there was an increase in the survival of premature babies born in very early weeks of the pregnancy, who survive thanks to medical developments, but remain with many disabilities such as blindness, physical disabilities and a developmental mental disability. He understood that with the right therapy and intensive guidance, those children, who are incapable of doing anything on their own, can be taught to eat by themselves, use a computer, and later engage in different jobs under protected employment.
"The Keren Or Center in Jerusalem is the only center in Israel specializing In blind children with additional disabilities and it has become their second home. The children and their family members are escorted and treated from the early stages of their lives into adulthood. The center includes special kindergartens and schools which help cultivate the potential and internal strengths of these children with special needs.
"When Igra arrived in the United States in 1975 and founded the Keren Or management, he was looking for donors for the association. One of them was my father-in-law, Dr. Edward Steinberg, an optometrist. The center was first opened in Jerusalem's Kiryat Moshe neighborhood alongside Beit Chinuch Ivrim, but over the years it grew and expanded to 40 children, reaching as many as 100 today.
Eliot Lauer has been volunteering in the association's management for many years and serves as its legal advisor. "The Israeli government has donated a land in the Ramot A neighborhood, where we built the center. The children enjoy musical therapy there, animal-assisted therapy and hydrotherapy, which has been found to be very efficient in their progress and has become one of the main programs for their rehabilitation.
"Now we are looking for donors to help us renovate the dormitories floor, so that the children can stay in the therapeutic center overnight. It's a charming organization waiting for a generous donor who would like to take it under his wing. At the moment, we need a $6.5-million budget in order to develop and provide the children with the suitable therapy they need. Five years ago, for example, we worked very hard to build a large and modern hydrotherapeutic swimming pool for them - with a lift capable of placing children in wheelchairs in the water as well."