’tis the season to be pardoned

We haven’t written about the pardons President Bush has granted as his second term draws to a close, and I’m reluctant to do so. That’s because it seems rash to assess the merits of particular pardons without delving comprehensively into the facts. And even then, the decision whether to pardon is inherently subjective.

In a few cases, such as the outstanding public servant Caspar Weinberger, the wisdom of the pardon seems self-evident. In a few other cases, such as Marc Rich (who aided our enemies and fled from justice, and whose pardoned was purchased), the pardon seems indefensible. In most cases, though, the best response may be a shrug of the shoulders.

We can say with certainty that President Bush has been comparatively parsimonious with pardons, Even with the 19 pardons he recently granted, Bush’s total is about half that of President Clinton and of President Reagan, the most recent two-term presidents. To the extent any conclusion can be drawn from a purely numerical analysis, the conclusion favors Bush. The results of the criminal justice system should not lightly be overturned.

Diana West takes issue with specific Bush pardons and non-pardons here. She notes that Bush just pardoned a rancher who long ago served two years for hiring undocumented workers to harvest watermelons, but Bush has not pardoned border agents Ramos and Compean who currently are serving lengthy sentences for shooting an illegal alien drug dealer while he smuggled nearly 750 pounds of marijuana across the border.

I haven’t studied either situation, but their juxtaposition does raise questions. So does Bush’s pardon of a Brooklyn real estate developer accused of scamming hundreds of poor, minority homebuyers, and whose father donated $28,500 to the Republican Party this year.

Diana also raises the case of Jonathan Pollard who is serving the 24th year of a life sentence for one count of passing classified information to an ally — Israel. According to Pollard’s website, the median sentence for his crime is 2 to 4 years. The Pollard case can be debated endlessly, but it’s always been my impression that the sentence was absurdly harsh and that some of the judge’s motives for imposing it may have been less than judicious. Bush should take another look at commuting the sentence.

The commutation option leads us, finally, to the case of Scooter Libby. We discussed this case at some length throughout the course of his prosecution and at the time the president commuted the sentence. I continue to believe, for basically the reasons Bill Otis presented at the outset of the debate, that Bush got this one right the first time. On the other hand, a pardon would hardly be indefensible. This is one of those subjective decisions to which my reaction (perhaps uniquely) would be a shrug of the shoulders.

SCOTT adds: President Bush has revoked the pardon of the Brooklyn real estate developer.

As for Jonathan Pollard, I highly recommend that one look at a fuller account of the facts relevant to his sentence than is available on Pollard’s Web site. Pollard’s sale of national security information to a foreign country was a disgusting crime which I believe represented only the beginning of his wrongdoing.

The Wikipedia entry on Pollard notes that “seven former U.S. secretaries of Defense have written petitions to keep Pollard imprisoned for life, and CIA chief George Tenet threatened to resign when the issue of releasing Pollard was put forward by the Clinton administration.”

There must be thousands of candidates more deserving of executive clemency than Pollard, and if his example causes anyone to think twice about engaging in similar wrongdoing, Pollard should stay right where he is.

PAUL adds: Ex-CIA agent Harold Nicholson sold defense secrets to Russia, blowing the cover of CIA employees, some of them in sensitive, “deepest cover” positions. He did not get a life sentence. Ex-FBI agent Earl Pitts spied for the Soviet Union and then for Russia. He did not get a life sentence. Clayton Longtree, a marine serving at the U.S. embassy in Moscow sold documents to the Soviet Union. Convincted the same year as Pollard, he did not receive a life sentence and ended up serving only nine years. The prosecutor in Pollard’s case did not ask for a life sentence.

Pollard has served 24 years, a disproportionately long term that should be sufficient to make anyone think twice about engaging in similar wrongdoing.

SCOTT adds: Pollard was an intelligence analyst who had a top secret/SCI clearance with a Navy counterterrorism unit. As a result of his position he had access to critical communications intelligence and other of the most highly guarded intelligence of the United States. Pollard abused his position to transmit voluminous amounts of this intelligence information to Israel.

Under a plea agreement with the United States Attorney for the District of Columbia, Pollard pleaded guilty to one count of conspiracy to commit espionage. In exchange for Pollard’s plea and cooperation regarding damage assessment, the United States Attorney’s office recommended that Pollard receive a substantial term of years (rather than a life sentence).

Then-Seceratary of Defense Weinberger submitted a famous (or infamous) 46-page memo to the sentencing judge (Aubrey Robinson) regarding the nature of Pollard’s wrongdoing and the seriousness of the potential harm that it had caused. Judge Robinson was obviously influenced by the Weinberger memo in imposing the life sentence.

Wolf Blitzer obtained a redacted copy of the memo and quotes from it at some length in his book on the Pollard case, as well as from the response of Pollard’s attorneys to the Weinberger memo.

Although Pollard’s attorneys were allowed to review the Weinberger memo in its entirety at the time, the memo has never been made public in unredacted form. Nor has it been made available in unredacted form to attorneys subsequently representing Pollard with respect to his sentence.

I can’t speak to the other espionage cases cited by Paul, but Blitzer’s book, which is friendly to Pollard, and which takes the position that Pollard’s life sentence is an injustice, persuades me otherwise. Both Blitzer’s book and Paul’s take on the Polllard case also persuade me that reasonable people can disagree.

JOHN concludes: I’m not sure whether Pollard deserves a life sentence or not, but whatever sentence he deserves is the same one that should be meted out to the government officials and reporters at the New York Times who, respectively, leaked and published the details of classified anti-terror programs, thereby tipping off al Qaeda and other terrorist groups. Pollard, like the bureaucrats and reporters involved in the Times leak, sincerely believed that he was doing a fine and noble thing by violating laws relating to secrecy.

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