March 22 (Bloomberg) -- A Jewish boy in the northeastern U.S., I was raised on tales of the brilliant exploits of the Israeli intelligence agencies. So whenever Jonathan Pollard returns to the headlines -- as he has with President Barack Obama’s visit to Israel -- I can still remember my horror when he was arrested for passing secrets along to Israel in 1985. The teenage me could hardly believe that the Mossad might steal my own country’s secrets as well as Syria’s battle plans.
It wasn’t naivete on my part, either, or not exactly: The admiring books I devoured that propagated the myth of Israeli espionage were always accompanied by the assurance that Israel never employed the Jewish residents of the target country, lest they all come to be suspected of harboring dual loyalties.
In retrospect, even a brief lifetime of reading spy novels should have told me that such a rule was made to be broken -- but such are the vicissitudes of the young mind.
My childish shock turned to post-adolescent concern the first time I sought a security clearance, for a summer internship in the U.S. Consulate General in Jerusalem. I realized that any rational background check would want to know where my sympathies lay. Pollard, a civilian employee of naval intelligence acting at the behest of Israel, really had inflicted a harm on loyal Americans who wanted to serve their government. Even if no one was ever impolite enough to question my loyalties, I felt they really ought to -- and that the question would be justifiable.
Those old feelings stir in me every time the request for Pollard’s release is renewed, whether by Israel or by prominent Jewish Americans. The Israelis, of course, are completely justified in seeking that their spy be returned to them -- their chutzpah lay in spying on their closest ally and in doing so without any plausible deniability.
For Americans to insist loudly that a traitor to their country be released has always seemed a more, shall we say, doubtful proposition. My law-school colleague Alan Dershowitz -- whom I was raised to revere as a civil libertarian -- has been on the case for years. He argues primarily that the government pulled a bait and switch: The Justice Department offered a plea bargain in return for Pollard’s cooperation while the Pentagon submitted a separate letter demanding the longest sentence the law would allow. (He is serving a life sentence.)
Even granting Dershowitz his argument -- that the U.S. government perverted justice by deceiving a spy -- it still seems strange to focus on this injustice in particular among the innumerable wrongs that plea bargaining visits daily. Everyone deserves a defense. But Pollard was guilty, and surely the Defense Department was in a good position to know just how much harm his spying inflicted. No president has taken any steps to release him. It is hard to avoid the conclusion that Jewish-American efforts on his behalf are the product of an understandable desire to deny that dual loyalty could ever pose a problem for anyone -- the very proposition Pollard’s crimes refute.
So what should our attitude be toward Pollard? It would be a mistake, I now believe, to insist that he be treated more harshly than any other spy just because he made all Jewish Americans look potentially suspect. (This would be the inverse of the impulse to forgive him so as to minimize the impact of his betrayal.) Nor is there any reason to think that someone who spies for an ally is any worse than someone who spies for an enemy. Each is destructive (and repulsive) in his own special way.
Two more serious concerns counsel against Pollard’s release. One is that he seems to have refused to offer authorities a full account of what he stole. Reticence is I suppose laudable in a captured spy, but when he has spied on our country, we have a strong interest in making him bear the costs for it. If he were a Russian spy in a John le Carre novel, he could have been traded to the Soviets -- but it seems the Israelis have nothing worth trading him for. That is a risk you take when you spy for one ally against another.
Then there is the question of Pollard’s motive, which is certainly relevant. Although he took some money, he seems to have been driven mostly by a sense of duty to the Jewish state, suitably played on by his handlers. (He thought the Ronald Reagan administration was withholding important intelligence from Israel.) His continued intransigence over decades seems to underscore this ideological motive.
Morally speaking, it may be true that a spy motivated by his beliefs is less blameworthy than one impelled by greed. But from the standpoint of the country being spied on, the practical consequences are far worse. Bank accounts can be monitored, and (gasp!) we might even try compensating our own public officials enough that they are less likely to be tempted to betray their country for money. But as the British traitors Anthony Blunt, Guy Burgess, Donald Maclean and Kim Philby showed, it is extremely difficult to protect against a hidden love of another country or system. The only sure means would require litmus tests that a democracy rightly wants to avoid.
If Obama thinks he can get something worthwhile from Israel in exchange for Pollard, I have no objection to treating him as a pawn, as the Israelis did when they recruited him. If not, then the president can leave him where he is -- a warning to others that betraying your oath of loyalty to the United States is a crime we take seriously.
(Noah Feldman, a law professor at Harvard University and the author of the forthcoming “Cool War: The Future of Global Competition,” is a Bloomberg View columnist. Follow him on Twitter. The opinions expressed are his own.)
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