Word that a federal judge rejected on Thursday a habeus corpus petition filed by Jonathan Pollard seeking the removal of broad and severe parole restrictions evoked strong criticism on both sides of the Atlantic, as well as calls for community soul-searching.
In her lengthy written ruling, Judge Katherine B. Forrest of the U.S. District Court for the Southern District of New York repeatedly referred to what she felt was the court’s limited authority to overrule a finding by the U.S. Parole Commission.
“Federal court review of parole commission decisions is extremely limited, because the commission has been granted broad discretion,” she said, citing several earlier court rulings. “Courts apply the same deferential standard when a parolee challenges special conditions imposed by the Commission … The appropriate standard for review of the commission’s decisions is whether there has been an abuse of discretion. This means that a court may not substitute its own judgment for that of the commission, but may consider only whether there is a rational basis for the commission’s decision.”
Rabbi Pesach Lerner, who has ceaselessly championed Pollard’s cause for more than two decades, was deeply distressed by the ruling.
“The injustice cries out,” he told Hamodia. “Jonathan has already spent 30 years in prison — in a ward for the criminally insane, in solitary confinement, in some of the worst prisons in the United States — and they still can’t let him go.”
In a statement to Hamodia, MK Dr. Nachman Shai, a member of the Zionist camp and chairman of the Knesset caucus for Jonathan Pollard, spoke out against the ruling.
“We have here a clear case of disproportionate cruelty. Pollard finished his sentence until the last minute, he wasn’t pardoned or given any sort of relief whatsoever. Once released he should be entitled to enjoy life of a free man. The time has come to let him enjoy the rest of his life, and the conditions on his freedom are illogical, unjust and humiliating.”
Pollard is currently required to wear a GPS monitoring system that consists of a non-removable transmitter installed on his wrist, and a receiver that is plugged into an outlet in his residence. Whenever he moves outside the range of the receiver, the transmitter — which is three inches long and two inches wide — acts as a GPS tracker and monitors his location. Were Pollard to step out of his tiny studio apartment to daven with a minyan or get some fresh air on Shabbos or Yom Tov, the battery would begin to drain, forcing him to choose between violating Shabbos or facing re-arrest.
“Pollard argues that the Parole Commission’s interpretation of the events … was ‘illogical’ and the result of ‘cynicism,’” Judge Forrest wrote, referring to the arguments regarding Pollard’s employment possibilities.
“But this argument is an invitation for the Court to replace the Commission’s credibility determination with its own, which is precisely what courts are directed not to do in evaluating habeas petitions like this one. The Court cannot conclude that the Commission’s interpretation of the evidence before it on this point was an irrational abuse of discretion,” the judge said.
A legal observer who has been following the Pollard case for many years and spoke on the condition of anonymity because of the sensitivity of the matter, told Hamodia that he found the ruling very troubling on numerous fronts.
“For one thing, when Pollard was first released from prison last November, it was because the authorities recognized that there was ‘no probability’ that he would re-offend. Yet in her ruling, the Judge set down a far lower bar, a ‘rational basis’ test — one that she is described in the hearing needed only ‘bread crumbs’ to support it.
“Furthermore, the Judge backtracked and moved the bar midway through this process. When she first agreed to take the case, she said was remanding the matter to the Parole Commission specifically to identify whether Mr. Pollard has retained ‘in his head’ secret information that could endanger the public and thereby justify the severity of the special conditions of parole.
“In a subsequent ruling, she shifted course, saying that ‘although the parties and the Court have at times suggested that the relevant inquiry is what information Pollard “carries in his head” … the inquiry is more accurately stated as what information he was able to access and therefore may carry in his head.’
“That is an almost impossible bar to defend,” the legal observer said.
The observer, who was present at the oral hearing on July 22, added that the Judge looked around the courtroom when she took her seat on that Friday morning.
“Other than his lawyers, Rabbi Pesach Lerner and two other close friends, Pollard had no one. Though there is very broad support in the community for Pollard, not a single Jewish organization sent down a representative. I know for a fact that a number of organizations had been informed in advance of the hearing. By not showing up, the lay leadership of these organizations sent a very wrong message to the Judge and to Pollard about their sense of priorities.”
A close friend of Pollard, who spoke on the condition of anonymity, confirmed that the Pollards were “deeply hurt” by the lack of a turnout.
“They feel abandoned and betrayed, and rightfully so,” the friend said.
“Sitting in the courtroom that Friday morning, looking around at the few individuals in the spectator section, observing the many people sitting with the Justice Department attorneys and members of the Parole Board, with Jonathan and his attorneys on the other side — the thought that continued to go through my mind was — where was justice?” Rabbi Lerner recalled in a conversation with Hamodia on Tuesday.
“The hate and the lies coming from the prosecution, yes, the attorneys for the Justice Department were acting like prosecutors, spitting out lies and untruths that we heard for so many years. They totally ignored the so many letters and briefs filed by former political and intelligence officials that Pollard had served his time, that there was nothing that he could possibly remember that has any relevance or value, that he should be totally freed and released, already,” Rabbi Lerner passionately stated.
“When they had no facts, they made up generalities. When they had no proof, they twisted their untruths. When common sense dictated one way, they went in the opposite direction. Does anyone really believe that after all he went through, Jonathan remembers important documents, anything for that matter, after 30 years, if he memorized them at all. Does anyone really believe that whatever he remembers, if he remembers, is relevant today?
“Where was justice when the judge began the hearing by saying I’m not sure how much authority I have to challenge the decision of the Justice Department and parole commission. What happened to our system of checks and balances? The court is supposed to correct the wrongs of the government; why doesn’t Pollard deserve that American right?”
In her ruling, the Judge appeared to accept the argument made by the Parole Commission that Pollard is a flight risk, and the usage of a letter sent by Congressmen Jerrold Nadler and Eliot Engel to Attorney General Loretta E. Lynch on November 13, 2015 — a week before his actual release — urging the Department of Justice to give “fair consideration” to Jonathan Pollard’s expressed desire to reunite with his family in Israel after his release from prison, to establish this claim.
“Pollard has strenuously argued that [the letter] only sought permission to take a legal action and were an inappropriate basis for the GPS monitoring condition. However, there is no requirement that the Commission only consider evidence of criminal conduct or conspiracies; instead, it is tasked with crafting conditions which reasonably relate to Pollard’s history and characteristics,” the Judge wrote. “Pollard identifies no principle of law that suggests that a non-criminal characteristic cannot be considered, nor would such a principle be consistent with the goals and broad discretion of the Parole Commission.
“The fact that the government made this claim is outrageous in itself,” the legal observer said. “The fact that the judge accepted it is downright frightening and something we all should take very seriously.”
Pollard has 10 days from the day of the ruling to file a notice of intent to appeal.