Tuesday, January 02, 2007

The Jewish Press, Jonathan Pollard, and Presidential Candidates

The Jewish Press made two factual errors in its recent editorial calling for Presidential candidates to be asked to do something regarding the plight of Jonathan Pollard:

http://www.jewishpress.com/page.do/20229/Presidential_Candidates_And_Pollard.html

The first excerpt is blatant:

"Mr. Pollard is the only person in U.S. history to have received a life sentence, or anything even approaching it, for spying on behalf of an American ally."

To the contrary, Julius and Ethel Rosenberg were executed for spying for the Soviet Union at the time that it was an ally during World War II.

UPDATE: The below is not accurate. See http://charliehall.blogspot.com/2007/04/correction.html for a retraction.

The second is more subtle. The assumption of the editorial writers is that there is in fact something that a President can do to release Pollard from prison. In fact, by current regulations having the force of law, Pollard must take the first step and apply for parole or clemency. AFAIK he has never done so despite the fact that he has been eligible for parole for over 10 years. An excerpt from the clemency regulations:

"A person seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine shall execute a formal petition."

The entire regulations are at

http://www.usdoj.gov/pardon/clemency.htm.

And from the parole regulations:

"Everyone except those committed under juvenile delinquency procedures who wish to be considered for parole must complete a parole application."

See http://www.usdoj.gov/uspc/questions.htm.

It is clear that barring a change in statuatory law to repeal the current regulations, or an attempt by the President to change the regulations to allow clemency or parole to someone who does not ask for it, Jonathan Pollard must take the first step in the process if he is not to spend the rest of his life in prison. Without that, no President can help him.

11 Comments:

Blogger Ezzie said...

...and we both know why. (Ask your mentor! (?) )

2:24 PM  
Blogger - Typo Lad said...

Charlie doesn't need to ask his "mentor". He's capable of putting 2+2 together.

Quite well, considering his line of work.

Nice to see you blogging again, CH.

Maybe I should get off my tush...

4:26 AM  
Anonymous Anonymous said...

Didn't Pollard request clemency at the end of Bill Clinton's term of office?

12:12 PM  
Blogger Larry Lennhoff said...

Charlie, I'm speaking without doing much research here, but I am pretty sure the President can pardon whom he pleases without having to follow every detail of the regulation. Certainly the first President Bush pardoned Caspar Wineberger who hadn't even had a trial yet, much less been found guilty and applied for a pardon.

See Jurist.law.pitt.edu which concludes
With the single exception of impeachment, then, the pardon power emerged from Philadelphia as exclusive, broad, and unfettered by the regular checks and balances of the governmental structure.

More information is available here

1:09 PM  
Blogger - Typo Lad said...

anon-

Nope. He did not. He has never done so, against the advice of his lawyers and his Rabbonim.

1:10 PM  
Blogger Charlie Hall said...

'I am pretty sure the President can pardon whom he pleases without having to follow every detail of the regulation.'

Constitutionally, he can pardon whomever he pleases for any reason or for no reason. But there might be a question as to whether the pardon is valid if he violates his own regulations by doing so, and the Administrative Procedures Act requires an extensive rulemaking process in order to change the regulations (publication in the Federal Register, public comment period, etc....). I guess Bush could then claim that the Administrative Procedures Act is unconstitutional, but that would put the entire executive branch into utter and total chaos. I doubt Chief Justice Roberts, an expert in Federal Administrative law, would go for that. But you never know....

If Pollard would just apply for clemency, we could put Bush on the spot.

8:24 PM  
Blogger Steg (dos iz nit der ┼íteg) said...

wow. never heard of this before.

3:05 PM  
Blogger BrooklynWolf said...

Likewise. I'm actually shocked to hear that he never applied for clemency.

2:37 PM  
Anonymous mycroft said...

I am not an expert on Presidential pardons-but suspect my knowledge may be greater than some bloggers-my belief is constitutionally a President can pardon for any federal crimes and it can't be challenged by anyone-classic example when Ford let Nixon walk for his high crimes and misdemeanors-nothing could be done about it even if it could be shown that there was an agreement to give Ford the presidency in exchange for the pardon.

Not an expert on the APA-but have some knowledge-it deals in regulations and rulemaking.

4:16 PM  
Anonymous mycroft said...

Charlie Hall:
I disagree with you on your legal analysis-but sadly Ezzie hit at the major reason why Pollard is still probably in jail. He has been the poster child for many Amcha type activities. If he wanted to increase his chances of getting out he and the Jewish community should stop the talk of "ally". No government can tolerate individuals making their own determination about what is proper there is a chain of command. Note Chazal had a similar idea that they would not tolerate intentional disregard of Rabbinic ordinances which are a challenge to their system.
To paraphrase Rabbi Avi Weiss who in the 80's had a debate with R. P. Teitz about Soviet Jewry and R. A. Weiss "said it is you R. Teitz who are partially responsible for Soviet Jews not getting out.-I think it is fair to say that to R. A. Weiss "that it is your policies of making this a cause celebre that is to a great extent responsible for keeping Pollard in jail"

Of course, other reasons for life sentence-very poor deal making by his lawyers at the trial level-he dissed Judge A. Robinson by going on 60 minutes 2 days before sentencing after being told by Robinson noy yo talk to press.

But A. Weiss and his supporters are very much responsible for the environment which almost guarrantees that Pollard would not be released. BTW-I believe R. A. Soloveichik was even stronger in his beliefs of the lack of effectiveness of Amcha tactics.

4:32 PM  
Blogger Charlie Hall said...

"No government can tolerate individuals making their own determination about what is proper there is a chain of command."

I agree with that statement. I used to work for a defense contractor and had a security clearance with access to secret information -- at the time that Pollard was engaged in the activity for which he pled guilty. I had no right to pass on any such information to anyone who did not have (1) the appropriate clearance, and (2) the need to know. And if the information was properly classified, such an act is a crime. The fact that the person is an ally is irrelevant.

I should add that I was just as upset when Oliver North was found to be leaking secrets.

6:27 AM  

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