USA v Convicted Spy Pollard Plea

8/8/2019 USA v Convicted Spy Pollard Plea

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..., .,; .UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA .. . w

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r e p r e s ~ n t a t i v e s of th e I s r a e l i Government. Furthermore, counseland th e Government have negot ia ted and reached agreementsconcerning access to o ther documents r e levan t to th e sentencing

1in t h i s case . The Government has refused counsel ' s reques t ,however, to produce th e fol lowing documents:

1. The c l a s s i f i ed sentencing memorandum submit ted to th ecour t in th e case of uni ted s t a t e s v. P e l t o n ~ and

2. Documents r e l a t i ng to th e detent ion and d i spos i t ion ofpersons suspected of conduct ing espionage a c t i v i t i e s on behalfof the Government of I s r a e l .

The Government has produced th e unc lass i f i ed sen tencingmemorandum f i l ed by it in th e Pelton case . Oral ly , th eprosecutor has s ta ted t h a t th e c l a s s i f i ed sentencing memorandumi s i r r e l e va n t t o t h i s p r o c e e d i n g ~ t ha t it should not besUbjected to the burden of accumulating and producingin format ion concerning th e apprehension of o ther personsconduct ing espionage on beha l f o f I s rae l , when such cases ared i s t ingu i shab le from the p resen t case by th e amount of mater ia lpassed to th e I s r a e l i Government. The Government 's pos i t ion hasbeen fur the r re f ined in i t s l e t t e r to counsel dated February 9,1987 (Exhibi t B).

1 See l e t t e r o f Richard A. Hibey, Esq. to Ass i s t an t un i teds t a t e s Attorney, Charles Leeper, dated February 5, 1987,a t tached here to as Exhib i t A and Mr. Leeper ' s response t he re todated February 9, 1987, at tached as Exhib i t B.

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Upder the principles of Brady v. Maryland, 373 U.S. 83(1963), the const i tut ional r igh t to due process ent i t lesdefendant to a l l evidence favorable to him. In addit ion, th isr igh t to favorable evidence applies to evidence material topunishment as well as gui l t . Id . Indeed, the need forfavorable evidence is imperative in a case such as th i s , inwhich the defendant has pled gui l ty . See united States v.Fatico, 458 F. Supp. 368 (E.D.N.Y. 1978) (sentencing i s the onlyc r i t i ca l stage of criminal proceedings for a defendant who haspled gui l ty) .

The Classif ied Sentencing Memorandum in the Pelton CaseIn i t s sentencing memorandum, the Government has stated the

resu l tan t damage from Mr. Pollard 's conduct was no lessegregious than t ha t caused by a person conducting espionage onbehalf of the Soviet union. In the pre-sentencing report of t Q probation off ice , the victim impact statement quotes, in tera l ia , the view of the prosecutors tha t the damage to thenat ional securi ty i s in the impairment of the ab i l i ty of theunited s ta tes to negotiate meaningful intel l igence exchangeswith Is rae l . The sentencing memorandum in the Pelton case wil lenable us to assess how it i s t ha t Mr. Pollard 's conduct, albei tcriminal , can be equated with the conduct, and more importantly,the degree of cr iminal i ty assessed in the Pelton case. Counselhas no in teres t in learning the par t icu la rs of what Mr. Peltonturned over to the Soviet Union. Indeed, counsel are content

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n6t to . share t ha t information a t a l l with Mr. Pollard. What weare in teres ted in i s the manner in which the Governmentconcluded in Pelton tha t h is was a crime of such heinousness asto jus t i fy the sentence which he received. Present ly , we canmerely i n tu i t tha t the analysis of the damage assessors in tha tcase identif ied the documents and information compromised,analyzed the significance of tha t information, determined i t simportance to national secur i ty , described how t ha t secur i ty wascompromised, and projected the effec ts of t ha t loss over are levant period of t ime.

Here, we have seen none of tha t in the Government'sanalysis . Indeed, the bottom l ine of the victim impactstatement in the pre-sentence invest igat ion of the probationoffice is t ha t the united s ta tes los t i t s negotiat ing ab i l i tywith the I s rae l i s , morale in Mr. Pollard 's workplace sufferedand, indeed, the workplace i t s e l f had to be closed for two weeksin order for an inventory of the loss to be conducted. 2 Therei s no denia l t ha t these are relevant factors for the Court toconsider on the issue of Mr. Pol la rd ' s sentence. By the sametoken, the i r context, re la t ive to espionage cases such as thePelton case, must be properly placed before a jus t sentence can

2 The Government also postulates a th rea t to our re la t ionswith our Middle East a l l i e s , but tha t i s mere speculation withno ver i f ica t ion of th is as a fact , although 16 months haselapsed since the espionage was made pUblic.

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be' imposed. Accordingly, we wish to review th is information inorder to present an appropriate argument in advance of theCourt 's sentencing. Because fur ther elaboration of our posi t ionmay resul t in the discussion of c lass i f ied information, a closedhearing on th i s motion is respectful ly requested.

other Cases of Espionage for Is rae lThe Government's handling of other cases in which persons

were suspected of conducting espionage act iv i t ies on behalf ofIs rae l are also germane to th i s act ion. According to an ar t i c lein the New York Times dated July 11, 1986, at tached hereto asExhibi t C, the Government had detained other individuals accusedof spying for Is rae l pr ior to defendant 's ar res t , but chose notto prosecute those individuals for the i r crimes. On the basisof th i s ar t i c le , counsel requested de ta i l s of the incidentsdescribed in the ar t i c le from the Government. The Governmentin i t i a l ly declined to conduct what it characterized as a"wide-ranging search of records which would be required tocomply with [defendant's] request ." The Government fur therresponded tha t " i t s off ice rs are unaware of any instances inwhich prosecution has been declined wherein re l iab le andadmissible evidence had been obtained by law enforcementofficers of the systematic, clandestine provision of u.s.class i f ied information by an American c i t izen to I s rae l . Even

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more s ign i f ican t ly , these of f i c i a l s are unaware of any pr iorinstance of espionage committed by a u.s . c i t izen on behalf ofI s rae l in exchange for money."

Counsel since has discovered an addi t ional ar t ic le by theNew York Times, dated December 22, 1985 and attached hereto asExhibit D, which s ta tes tha t "the F.B.I . knew of a t l eas t adozen incidents in which American off ic ia l s t ransferredclass i f ied information to the I s rae l i s , " yet the Jus t iceDepartment did not prosecute any of the off ic ia l s . Thea r t i c l e , i f t rue , would strongly suggest t ha t it was theestablished policy of the Department of Jus t ice not to prosecuteu.s . c i t izens for espionage ac t iv i t i e s on behalf of I s rae l , eventhough, according to the same ar t i c le , the I s rae l i in te l l igenceservice was the most act ive in the united s t a t es , second only tothe sovie t s . See Exhibit D a t p.7 . Specif ical ly , the decis ionby the Government to forego prosecution of such individualsnecessari ly i s based upon factors which may well have relevanceto the case of Mr. Pollard. Indeed, in the absence of knowingspec i f ica l ly what those factors are , one can only speculate tha tthey might include the very basic presumption tha t the damagefrom providing the c lass i f ied information to Is rae l i s far lesssevere than i f the information were passed to the Soviets .

A heavy cloak of secrecy surrounds every aspect of theclass i f ied information in th i s case. That is as it should be.Counsel enjoy c l e a r a n c ~ s tha t wil l ent i t le them to reviewclass i f ied information a t very high levels . We are prepared to

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unaertake fur ther obl igat ions and ins t ruct ions relat ive to ouruse of any information which comes under th i s discoveryrequest . Our only purpose i s to evaluate it for whateverpossible use can be made of it with th i s Court. Therefore,defendant re i tera tes his request for a closed oral hearing topresent fur ther arguments to support th is motion which mayinvolve the disclosure of class i f ied information. Given thepending sentencing date of March 4, 1987, the hearing isrequested on an expedited basis (but in no event on February 16or 18, 1987) .

Respectfully Submitted,& BLAIR

By: Ric rd A. 1beyGordon A. CoffeeAnderson, Hibey, Nauheim & Blai r1708 New Hampshire Avenue, NWWashington, DC 20009Attorneys for defendant Jonathan J .Pollard

Dated: February 13, 1987

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A N D E R S O N ) H I B E Y , N A U H E I M &1708 NE W HAMPSHIRE AVENUE, N. W.

B L A I R

WASHINGTON, D. C. 2 0 0 0 9(202) 483-1900

A PARTNERSHIP OF PROFESSIONAL CORPORATIONSATTORNEY'S DIRECT DIAL NUMBER

TELEX: 248929AHNB UR

TELECOPIER: (202) 483-1462

February 5, 1987

Char les Leeper , Esquireun i t ed s t a t e s Attorney ' s Off iceJUdiciary Center555 4th s t r e e t , NWRoom 5800Washington, DC 20001Re: un i t ed s t a t e s v. Pol l a rd , Criminal No. 86-0207Dear Mr. Leeper:

This l e t t e r i s to r eques t th e fol lowing informationwhich, if it ex i s t s , should be produced under th e BradyDoctr ine: 1. The damage assessment in the Pel ton case .2. Any cases of American c i t i zens i l l e g a l l yprovid ing c la s s i f i ed information to I s r ae l and t h e i rd i s pos i t i on .The Pel ton damage assessment i s re l evan t fo r us to

ana lyze , on a comparat ive bas i s , th e damage to th e na t iona ls e c ur i t y incurred in each case . We fee l it i s not f a i r fo r thejUdge to dec ide t h i s case within parameters f ixed by th eGovernment. Espionage imports a t r a d i t i o n a l meaning o fheinousness and th e utmost s e ve r i t y . We do n ot be l i eve t h a t i san appropr i a t e connota t ion fo r t h i s case. A way to demonstratet h i s fundamental propos i t ion i s to have th e Court compare"damage", al low us to analyze th e method9logy by which th ere spec t ive i n ju r i e s are assessed , and fo r us to argue a contextof harm to t he na t iona l secur i ty t h a t i s fa r d i f f e ren t than whatth e Government has advanced in th i s case .


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, ANDERsoN, HIBEY, NAUHEIM &. BLAIRA PARTNERSHIP OF PROFESSIONAL CORPORATIONS

Char les Leeper, EsquireFebruary 5, 1987Page 2

with respec t to o the r cases of Americans providinginformat ion to I s r a e l , your a t t e n t ion i s di rec ted to th eenclosed a r t i c l e which appeared in th e New York'Times on Ju ly10, 1986. This a r t i c l e s t a t e s t ha t , according to former Jus t i ceDepartment o f f i c i a l s , o ther cases of espionage fo r th e be ne f i tof I s r ae l by Americans have been t r ea ted d i f fe ren t l y than t h i s .Information concerning these cases and t h e i r dispos i t ion conta inevidence favorable to th e accused i f , indeed, episodest r anspi red as r epor ted .

I would apprec ia te an immediate response to t h i sl e t t e r so as to enable us to go to the Court in th e event of theGovernment 's re fusa l to gran t our r eques t s .

Thank you fo r your cons idera t ion in t h i s mat te r .S incere ly ,

1 t ~ , , - . , Ri hard

RAH/komEnclosure


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PAGE 21ST STORY of Level 1 printed in FULL format.Copyright (c) 1986 The New York Times Company;The New York TimesJuly 11, 1986, Friday, Late City Final Edition

SECTION: Section Aj Page 12 , Column 4; National DeskLENGTH: 869 wordsHEADLINE: New Tack on Cases Against Israel?BYLINE: By STEPHEN ENGELBERGDATELINE: WASHINGTON, July 10BODY:

There was once a time when allegations that the Israeli Government hadviolated American law were handled with an eye to preserving the closerelationship between the United States and Israel.Suspicions of misconduct by Israel typically did not end up in front of grand

juries but were resolved qUietly through talks between diplomats,Matters are somewhat different now. In the last year, the Israelis have been

the sUbject of a series of well-publicized investigations involving allegationsof espionage and i l legal export of American technology.At no time 1n the history of the state of Israel have the United Statesauthori t ies been investigating more visibly embarrassing cases involving charges

of crimes by the Israeli government or i ts representatives.Senior Administration officials deny that this sudden spurt of cases reflectsa change in policy toward Israel. Some observers contend, however, that theinvesqgatlons are a sign that the White HOUSE? has failed to maintain disciplineover the Government's law-enforcement agencies. Pro-Israel lobbyists areprivately asking whether mid-level officials 1n the JusticE' Department or UnitedStates Customs Service have been disclosing the investigations as part of anunauthorized vendetta against Israel.Whatever the casE', the relationship between Israel and the United States

does appear to be moving in several different directions at once .. On Sunday, for instance, the chairman of the Joint Chiefs of Staff, AdmiralWilliam J. Crowe Jr . , was at the Israeli Embassy for a ceremony honoring thedeparting military attache. Just a few days later, Administration officialsdisclosed that the Customs Service and the JustiCE? Department were inVEstigatinga possible plan for illegally exporting eqUipment used in maKing clusterweapons.

In a statement that suggested a longing for thE? days when such cases werehandled through diplomatic channels, the former Israeli chief of staff , RafaelEitan, saio, "If there was 2n 7 substance to these allegations, thE Americanscould have approached us qUietly and discreetly and clartfied matters. I I


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, .PAGE 3(c) 1986 The New York Times, JUly 11, 1986

The Israelis were particularly angry that the case had been disclosed to thenews media by unnamed officials before they were notified of i ts eXistence.Another case involving the possible i l legal export of technology for tank

cannon barrels broke las t December, and in that instance camera crews from' 'TheNBC Evening News" accompanied the Customs Service agents as they executedsearch warrants in upstate New York.Steven Green, who has written cri t ically of the Israeli-American military

relationship, said that he was finding increasing numbers of middle-levelofficials 1n Washington who were willing to discuss what they believe is apattern of Israeli misconduct. ' ! find that people are more and more frequentl.ywilling to be cooperative to find informal channels to get the word out," Mr.Green said. I I t ' s from a feeling of frustration. I ISupporters of Israel contend that this Willingness to disclose information

about investigations of the Israelis springs largely from lower-level off tcials . At the highest levels, they contend, the Reagan Administration remains a staunchsupporter of Israel .

I 'There has never been a period with this much friendliness and trust, I' saidHymen Bookbinder, the Washington representative of the American JeWishCommittee. "This is an unprecedented period of friendship and there are a fewpeople who don't l ike this."

An off icial rsraeli statement an Wednesday, however, suggested that that theraising of the cluster weapon case caused' ' serious astonishments" that could/ 'overcloud the good relat10ns prevailing between the U.S. and Israel."

The most prominent of the cases related to Israel involved Jonathan JayPollard, the former Navy analyst Who recently pleaded gUilty to spying forIsrael. Former Justice Department officials say they know of previous instances1n which-cases of Israeli spying in tMe United states were handled withoutcriminal proceedings. But Hr. Pollard's behavior immediately before his arreste 1 Embassy wit . . . agents ral - ma e 1impossible to dispose of the incident qu e y. Additionally, the ~ u s t 1 c e lfepartment has taken a nard llne stand againST all es iona e and was loathe toaver s e e s r ecause he was work!" for the Isra s.The situation worsened when Justice Department officials concluded they hadbeen misled by the Israelis about the number of people involved in the case.

I 'That whale thing l e f t an extremely bad taste in people'S mouthS,' I said oneoff icial familiar with the case.

Hr. Pollard is now cooperating with the investigation and a grand jury inWashington, D.C., 15 continuing to investigate.Customs officials and the Justice Department have been looking into

allegations that American companies shipped technology for tank cannon barrelsto Israel in Violation of export laws. That case is s t i l l under investigation.Finally, a grand jury las t year indicted a California businessman, Richard KellySmyth, on charges of illegally exporting to Israel 800 devices of the type usedto trigger nuclear explosions.

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PAGE 4(e) 1986 The New York Times, July 11, 1986GRAPHIC: Photo of Raphael Eitan (rpPA)SUBJECT: UNITED STATES INTERNATIONAL RELATIONS; ESPIONAGE; SCIENCE ANDTECHNOLOGYNAME: ENGELBERG, STEPHENGEOGRAPHIC: ISRAEL, STATE OF

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U.S.Departmf> )f Justice. ',J'f)" United States Attorney" District of Columbia

Judiciary Center Operations555 Fourth St. N. W.Washington, D.C. 20001

February 9, 1987

Richard A. Hibey, Esquire1708 New Hampshire Ave. , N.W.Washington , D.C. 20009

'Re: u n i t ed Sta te s v. Jona than Po l l a rd

BY HAND

Dear Mr. Hibey:I am wri t i n g in response to your February 5 , 1987 l e t t e r re

q u es t fo r informakion which you descr ibe a s :"1 . The damage assessment in the Pel ton case .2. Any cases of American c i t i z en s - - r r l eg a l l y prov id ing

c l a s s i f i e d i n format ion to I s r a e l and t h e i r d i s p o s i t i o n . 1IYou a s s e r t t h a t you a re e n t i t l e d t o d is co v e ry o f t h i s informat ionbecause it co n s t i t u t e s Brady m a t e r i a l . I w i l l address each of yourr eq u es t s in tu rn . --_.

In our view, t h e re i s no reason to b e l i ev e t h a t the damageassessment an a l y s i s of the c l a s s i f i e d i n format ion compromised inPe l t o n , a TOP SECRET, compar tmenta l ized document which you a re notc lea red to access , con ta ins any informat ion which i s m a t e r i a l l yfavorab le to your c l i e n t . I have a l read y provided to you a copy ofth e u n c l a s s i f i ed v ers io n of th e government ' s sen tencing memorandumf i l e d in Pe l ton . The f ac t s conta ined in t h a t memorandum, as we l las th e evidence adduc8d i.n th e trial of the case , demonst ra te t h a tt he re i s no ra t ionAl r e l a t i o n between the c l a s s i f i e d i n format ioncompromised in Pe l ton and t h ~ t compromised by defendan t here .Fol lowing h ' T ~ s - r e t . i r e m e n t from the Nat iona l Secur i ty Agency inJ u ly , 1979, Ronald ppl ton d i sc l o sed t o ag en ts o f the Sovie t Uniono r a l i n format ion r e l a t i n g to a u . s . s i g n a l s co l l ec t i o n pro jec to p e ra t i n g to i n t e rcep t a p a r t i c u l a r Sovie t communicat ions l i n k .


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Pel ton d i sc l o sed no c l a s s i f i e d documents to the Sov i e t Union.Rath e r , he met wi th So v i e t agen t s on approx ima te ly n ine occas ionsover a f ive year pAriod and re l a t ed what i n format ion he cou ldr e c a l l about the c l a s s i f i e d p ro j e c t he had worked on in 1979. Inexchange fo r t h i s c l a s s i f i e d in fo rmat ion , Pe l ton was pa id approx i mate ly $37,000 by h is So v ie t hand lers . Afte r Pe l to n was co n v i c t ed ,he agreed to coopera te wi th government o f f i c ic3l s by subm itt ing tol eng thy d eb r i e f i n g i n t e rv i ews and polygraph examina t ions throughwhich the above-desc r ibed informat ion was conf i rmed . Notwi th -s t an d in g h i s co o p e ra t i o n , Pe l ton was sentenced to l i f e imprisonment .While P e l to n ' s unlawfu l a c t i v i t i e s se r ious ly damaged a p a r t i cu l a r U. s . i n t e l l i g en ce gather ing p r o j ec t , it does not fol low t h a tyour c l i e n t ' s conduc t compares favorab ly wi th t h a t of Pe l t o n . Mr.Pol la rd ro u t i n e l y compromised thousands o f u . s . c l a s s i f i e d docu-ments whi Ie Pel t o n ' s o r a l d i sc losure s were episod ic and based onh is memory which con t inued to dimin i sh over a per iod o f f iv e y e a r s .Pe l to n compromised a s ing le u.s. p ro j e c t and damaged the u . s . p o s i t i on r e l a t i v e to the So v ie t Union; Mr. Po l l a rd compromised a bread tho f c l a s s i f i e d in fo rmat ion unprecedented in esp ionage cases and ad v e r se l y a f fec t ed u .S . i n t e r e s t s v is a v is numerous co u n t r i e s i n c l u d ing , p o t e n t i a l l y , the Sov i e t Un i on . F in a l l y , th e amount of moneyfo r which Mr. Po l l a rd so ld u.s. s ec r e t s exceeded t h a t rece ived byPel ton in exchange fo r h i s d i s c l o s u re s .The n a tu re and volume of the c l a s s i f i e d in fo rmat ion compro-mised in these cases v a r i e s so su b s t a n t i a l l y t h a t no b as i s e x i s t sfo r a compar ison of the re spec t ive damage assessments . In s h o r t , iti s our view t h a t Brady does no t r eq u i r e th e produc t ion o f i n f o r mat ion , p a r t i c u l a r l y " i 3 -h i g h l y c l a s s i f i e d damage assessment , on thenaked as s e r t i o n t h a t the document might , p o ss i b l y co n ta in evidencefavorab le to your c l i e n t .F i n a l l y , it i s i n accu ra t e fo r you to sugges t in your l e t t e rt h a t we a re asking the Cour t to make a dec i s ion on the evidence int h i s case "wi th in pa ramete rs f ixed by the Government ." To th ee x t e n t t h a t any "pa ramete rs" e x i s t in t h i s c a s e , they a re es t ab l i shedonly by th e scope o f the thousands o f pages o f TOP SECRET an d SCIin fo rmat ion compromised by your c l i e n t .2. In format ion Re: __Q . t h e _ ~ . _ u. s. Ci t izens_ Suspec ted o f I s r a e l i Espionage

I n i t i a l l y , we t ake ex cep t io n to th e co n ten t io n in your l e t t e rt h a t the a l l e g e d , non-cr iminal d i s p o s i t i o n of o t h e r , unre la ted casescould somehow co n s t i t u t e m a t e r i a l l y favorab le ev idence as to adefendan t who through a p lea o f gu i l ty has acknowledged h is l o n g t e rm, sy s t ema t i c espionage a c t i v i t i e s conducted in exchange fo rf i n a n c i a l reward . Your l e t t e r prov ides no a u t h o r i t y o r ex p lan a t io nwhich would warran t any sea rch of government f i l e s fo r such in format i o n . Moreover, your l e t t e r does not even r eq u es t i n format ion r e l a t i n g to any s p ec i f i c c a s e , bu t r a th e r seeks produc t ion o f a l l


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such case d i s p o s i t i o n s rega rd le s s o f how long ago the ev en t s occur r ed , the nature and c l a s s i f i c a t i o n l e v e l o f in fo rmat ion a l l eg ed l yd i sc l o sed , o r whether the a l l eg a t i o n s were s u f f i c i e n t l y r e l i ab l e toeven warran t c r imin a l i n v es t i g a t i o n . In view of t he fo rego ing , wer e s p e c t fu l l y dec l ine to conduc t th e wide- rang ing sea rch o f recordswhich would be requ i red to comply with your r e q u e s t .

We do, however, want to take t h i s o p p o r tu n i ty to reb u t thesugges t ion which, you contend , i s implied by the New York Timesa r t i c l e accompanying your l e t t e r , i.e., t h a t Depar tment of J u s t i c eo f f i c i a l s have fa i l ed to pursue v ig o ro u s ly i n v e s t i g a t i o n s of esp ionage a c t i v i t y of the nature engaged in by your c l i e n t . I haveinqu i red o f sen i o r o f f i c i a l s o f the In t e rn a l Secur i ty Sect ion o fthe uni ted Sta te s Depar tment o f J u s t i c e which sec t ion has re spons i b i l i t y fo r the superv i s ion o f a l l i n v e s t i g a t i o n s and prosecu t ionsof v io l a t i o n s o f the espionage laws. The c o l l e c t i v e exper ience oft h ese o f f i c i a l s encompasses a l l such i n v e s t i g a t i o n s and prosecu t ionsconducted fo r more than a decade . I am informed by these o f f i c i a l st h a t they are aware of no i n s t an ces in which p ro secu t io n wasdecl ined wherein r e l i a b l e and admiss ib le ev idence had been obta inedby law enforcement o f f i c e r s o f the sy s t ema t i c , c l an d es t i n e p ro v i s io no f u.s. c l a s s i f i e d in fo rmat ion by an American c i t i z e n to I s r a e l .Even JTlore s i g n i f i c a n t l y , these o f f i c i a l s a re unaware o f any p r i o ri n s t an ce of esp ionage corom it ted by aU. S. c i ti zen on behal f ofI s r a e l in exchange fo r money.Should you dec ide to p r e s e n t your r eq u es t s fo r i n format ion tothe Cour t fo r d i s p o s i t i o n , we would be av a i l ab l e to appear beforeChief Judge Robi nson a t h is eA r l ie s t conven ience . Howeve r, we askt h a t , p r i o r to seek ing a hear ing on the m a t t e r , you e i t h e r f i l e amot ion fo r produc t ion to which we can re spond , o r make copies o fyour l e t t e r r eq u es t and t h i s response av a i l ab l e to the Court sot h a t Judge Robinson can determine whether a hear ing on the mat t e ri s necessa ry .

Si n ce re l y ,JOSEPH E. DIGENOVAUnited Sta te s At torney

('.

('.J. r_t . . - , , _ ~ - - _ ; , t . . . . . ~ ~__

CHARLES S. LEEPERA s s i s t a n t uni ted s t a t e s Attorney

CSL:bbcc: James F. Hibey


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PAGE 52ND STORY of Level 1 printed in FULL format.

Copyright (c) 19B5 The New York Times Company;The New York TimesDecember 22, 1985, Sunday, Late City Final Edition

Correction AppendedSECTION: Section 1; Part 1, Page 1, Column 2; Foreign DeskLENGTH: 3122 wordsHEADLINE: CLOSE U.S.-ISRAEL RETLATIONSHIP MAKES KEEPING SECRETS HARDBYLINE: By DAVID K. SHIPLER; Reporting by Stephen Engelberg, leslie H. Gelband Jeff ~ e r t h contributed to this art icle . , Special to the New York TimesDATELINE: WASHINGTON, Dec. 21BODY:

The relationship betweeri Israel and the United States has become so intimate_ that many American officials are convinced of Israel 's ability, on a routinebasis, to obtain sensitive information about this countrys secret weapons,advanced technology and internal pOlicy deliberations in Washington.Israeli diplomats and leaders sometimes react to intelligence reports and

policy shifts before they ~ r even complete, the officials say. Israeliprocurement officers knoH the stock numbers and specifications of new andadvanced weapons and components ttmt have not even been delivered to Uni tedStates armed forces, according to a well-placed officer.For the most part, the close ties have been created deliberately by theUnited States as a function of the long years of American military, economic andmoral support for Israel 's survival. And in many respects, the military andintelligence relations resemble those between the United States and such othertraditionally frlendly nations as Britain, Australla and canada.But interviews With dozens of present and former officials With experience.in.the White House, the Pentagon, the State Department, the Central IntelligenceAgency, the Federal Bureau of Investigation and other agencies also reveal aqUiet concern among some over how porous the separat 10n between the Governlllen tshas grown.The la test debates over the relationship have been fostered by the arrest last month of Jonathan Jay Pollard, a civilian analyst for the UnitedStates Navy charged with selling classified documents to Israel. The papersreportedly contained intelligence information on Arab countries and Sovietweaponry that the Israelis were nut able to get through normal c h a n n e l ~ . In addition, Israeli officials say the documents showed that the United

States was spying on I 5 r a ~ 1 . Many See Nothing Sinister

Many officials believe that ttlpf'e is nothing sinister ln the kind of informalt ies that exist hetween 5Qme I s r ~ f ' l t s and Americans, and that Israeli securltybenefi ts Un1 ted StMtes Interes ts. Clome point out that the Uni ted States gets"'V . . ~ , ' V . C \ V , ~ UJ::\YIC


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PAGE 6(c) 1985 The New York Times, December'Z2, 1985intelligence information from Israel, often i l l ic i t ly as well as formally.

, 'By using exactly the same techniques in Israel as the Israelis use, welearn as many secrets iri Israel as they learn," said a former official . Inaddition, formal, authorized exchanges have gone on for years.

The officials disagree about the value of such information, however. Some sayit has been most useful when Israel has provided captured Soviet-made militaryequipment, and When i t comes from a country such as Iran, where the Israeliscont1nue to have contacts. Israel has also provided informat1on on Pakistan'snuclear weapons development, officiaLs said. But policy makers and intelligenceofficials have found broad 1ntelligence assessments from Israel biased and, 1none official 's words, ' 'highly tinged" to advance Israeli policy.

In the Pollard affair , Prime Minister Shimon Peres of Israel issued anapology, returned the documents and produced Israeli officials for Questioningby a United S t a t ~ 5 team of investigators that completed its work this week. Butthe case has focused attention on the Israeli-American relationship and hasreleased some anger long pent up by officials who have resented what theyperceive as Israel 's strong polit ical influence in Washington.Information Flows On Several Paths Israel appears to obtain information on

several tracks. One is espionage, reportedly conducted in the United statessince the late 1940's. Another involves personal contacts with officials whofeel strongly that Israeli interests should be supported. A third is throughauthorized channels of intelligence-sharing and strategic cooperation, whichhave been enhanced under the Reagan Administrat1on.Although many officials welcome the intricacy of the relationship as

benefic1al to the strategic POSition of the United States In the Middle East,others worry about the seepage of privileged information to the IsraelIs. Overthe years, these officials have taken silent steps to transfer those undersuspicion or to cut them out of Middle East affairs ."There Is one guy - I won't talk i f he's in the room," an Administrationofficial said. " I won I t say anything."For other American officials, however, personal friendships with Israelis

often seem to help their careers."There is a breadth and deptfl to the relationship ttlat didnlt exist five

years ago," said one American who works as a pro-Israel lobbyist. 'IAninfrastructure has been built between the two armed forces, the two defensebureaucracies, the politIcal-military types at State. People have careersinvested 1n i t . The President wants i t , the Secretary of State wants i t . That'swhat makes this town work."Although the Pollard case is the only one to have been prosecuted, i t is not

the only example of Israeli spying to have come to the attentIon of lawen fa rcemen t offi cia 15 ."They certainly h;:lVp. operated here before," said Raymond W. Wannal Jr. , aformer Assistant Director of thE F.B.I. who served on the bureau's Middle Eastdesk from 1947 to 1953. 'When they f i rs t set up their state, they were very

eff1cient. They set up pretty good network in this country, I' M~ - _ - - - l --..I


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PAGE 7(c) 1985 The New York Times, December 22, 1985After gaining i n d e p e n ~ e n c e in 1948, he said, Israel ran s u r r e p t i t i ~ u s operations in the United States with a four-member commission that included anAmerican citizen, two Israeli diplomats and an Israeli troubleshooter whotraveled frequently to this country.The F.B.I. knew of at least a dozen incidents in which American officialstransferred classified information to the Israelis, Hr. Wannal said. The JusticeDepartment did not prosecute.Some Officials Are Not Astonished "When the Pollard case broke, the generalmedia and public perception was that this was the f i rs t time this had everhappened, " said John Davitt, former chief of the Justice Department's internall ecurity section. "No, that's not true at all . The Israeli intelligenceserVice, when I was in the Justice Department, was the second most active in theUnited States, to the Soviets."Mr. DaVitt, whb lef t the Justice Department in 1980 after 30 years, said most

of the Israeli actiVity was aimed at gathering information on Arab countries.But, he added, "there were instances In which we were targeted.""They would approach someone In our Government and in our defense industriesand seek to obtain classfied information," he said.I In 1979, the C.I.A. reported in a study that Israeli intelligence agencieswere engaged in t h e ' 'coliection of information an secret U.S. policy ordecisions, if any, concerning Israel" and ' 'collection of scientificintelligence in the U.S. and ather developed countries.".Other officials were also less than astonished by the Pollard case. "I'm not

very surprised this happened," said Richard V. Allen, a farmer nationalsecurity advisor to President Reagan. "The relationship between the U.S. andIsrael has never been so completely candid and deep as to preclude thepossibility of this happening.' IThe Israeli espionage efforts appear to spring from a dual sense of

uncertainty about American friendship and dependence on American aid, whichreached $3.75 billion this year. It is the most assistance given to any countryby the United States. Yet Israelis often say that Washington'S support haslimits, that the United States would not come to Israel 's rescue militarily in awar of surVival and that, In a crisis , Israel must rely only on i tself .In Hr. Allen's View, the Pollard case was an I 'aberration" that "went aver

the boundaries of accepted behavior." But he added: "1 have to assume that a l lfriendly or allied nations are on the make for whatever information they canget. The boundary line has to be respected by both Sides, and i t may not alwaysbe expl1ci t ."That inexplicit boundary has been a problem for some American officials,especially those with social, business and ideological ties to the Israelis.One former White Hause employee with friends in the Israeli military andGovernment drew the line at documents, saying that conveying informationverbally was often the stuff of diplomacy but prOViding a document was tabOO,except through authorized channels of exchange.


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PAGE 8(c) 1985 The New York Times, December 22, 1985"Diplomats and intelligence officers barter information," said a diplomat."That 's the way they get 1nformation. That's what the game Is all about."Furthermore, he and others observed, respect for the sanctity of classified

information had been eroded by the Government's tendency to classify practicallyeverything. "Ue know everything is overclasslfied," the diplomat said. "Youhave to have an Inner rudder to tel l you when you've gone beyond the nationalinterest. ' ,Not everyone appears to have such an inner rudder.A former National Security Council official told of suspected violations by a

C.I.A. watch officer in the White House situation room. The man expressedunusual interest in Middle East affairs, the former official said, adding thathis co-workers noticed that he came in on weekends, asked about cable trafficregarding the Middle East and looked at materials he had no need to see.The former official recalled that an Israeli Cabinet minister once inquiredabout a White House policy strategy that had been closely held, and suspicionswere raised that the C.I.A. officer had conveyed privileged information.One day the President was talking on the telephone With a Middle East head ofstate. As is customary, the official was monitoring the conversation on aspeaker phone. The C.I.A. officer hung around, trying to listen, the formerofficial said. FinallY,he motioned the C.I.A. man out of the room and closedthe door. Then he got the man transferred out of the White House to anon-sensitive job, and what the official called 'resonances" from the Israelisabout American poliCy stopped.In another incident, a small stUdy group was assessing the military balancein the Middle East after the 1973 war. It inclUded officials from the C.I.A.,the National security Agency, the Defense Intelligence Agency and theintelligence and research section of the State Department. As drafts of thereport were being prepared, Israeli officials were contacting Americans in theC.I.A., the State Department and the Pentagon to complain about specificsentences and paragraphs, according to a senior official involved. "The draftswere getting to the Israelis as fast as they were getting to the top of theC. I .A., I ' he recalled.Although he suspected one official , he did nothing, the senior official said.In 1965, a small nuclear processing plant In Apollo, Pa., the Nuclear

Materials and EqUipment Corporation, was unable to account to the Government for381.6 pounds of highly enriched uranium, enough to serve as raw material for 10nu clear bombs.Zalman A. Shapiro, the founder and f irs t president of the firm, r e ~ e a t e d l y maintained that the uranium had been lost naturally during processing. ButFederal documents showed that the F.B.I. was investigating the possibility that

it had been transferred to Israel. Tile investigation was inconclusive. A l i s tof the F.B.I. files on Hr. Shapiro, obtained recently, shows reports on hisactivities from 1949 to 1953 and from 1967 to 1974. One man listed as a contactof Hr. Shapiro was Avraham Hermon!, a former science attache at the IsraeliEmbassy In WaShington.


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PAGE . 9(e) 1985 The New York Times, December 22, 1985

A Case Said to Leave 'Unanswered Questions'On March 9, 1978, Steven D. Bryen, an aide to the Senate Foreign Relationscommittee, had breakfast with Israeli officials at the Madison Hotel in

Washington. Seated nearby was Michael Saba, a former executive director of theNational Association of Arab-Amer1canE.Mr. Saba said in a sworn affidavit that he heard Mr. Bryen tel l the Israelis:

"I have the Pentagon document on bases, which you are welcome to see."Mr. Bryen has emphatically denied making such an offer, saying Mr. Saba

"heard what he thought he heard because he w a n t ~ d to hear it" and criticizinginvestigators for never questioning the Israelis who had been present. Atwo-year investigation by r . B. I . agents, which lo'Oked tnto the possibili ty ofespionage charges, failed to find proof that Mr. Bryen had passed classifiedinformation to the Israelis. The case was dropped with the approval of seniorJustice Department off icials . According to Justice Department documents recently released under a Freedom

of Information laWSUit by the National Association of Arab-Americans, the agentsdid conclude that Mr .. Bryen had a close relationship with Zvi Rafiall, Who wasresponsible for Congressional liaison at the Israeli Embassy. Mr. Bryan calledthat relationship' ' a l l aboveboard and proper," and s a l d ~ "1 got a lot ofinformation off him for the committee."A Justice Department memorandum reviewing the case, written in December 1981,said: 'Although there are a number of unanswered questions regarding Mr. Bryen's

relationship with officials of the Israeli Government, and in particular hisefforts to obtain sensitive information for which he had no apparent legitimateneed but which would have been of inestimable value to the Israelis, i t appearedthat the Department exhausted a ll leads and that additional investigations wouldnot resolve these questions."Mr. DaVitt, then chief of the Justice Department's internal security section,sa1d the prosecutors handling the case wanted to bring i t before a grand jury.The suggestion was rejected by Philip B. Heymann, who headed the JusticeDepartment's criminal division at the time. Mr. Davitt called i t an 'honestdifference of opinion . "In the Reagan Administration, Hr. Bryen became a Deputy Assistant Secretary

of Defense overseeing transfers of technology to foreign countries.Mr. Davitt said he disagreed With the decision to award Mr. Bryen a

top-secret securi ty clearance, ,,,,flieh was recommended by the Defense Department'sSecurity Division. ." I find i t difficult to understand how anyone reading the file could

conclude, 'Well, this matter was investigated and he was given a clean bill ofhealth and a ll the allegations were resolved In his favor, ' " Mr. Davitt said.He explained that even Without sufficient evidence for prosecution, a SEcurityclearance could reasonably be denied.


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PAGE 10(c) 1985 The New York Times, December 22, 1985, 'When you're looking at an individual who will have access to sensitiveinformation," Hr. Davitt said, "you should sin on the side of being overly

caut 1au 5 ' ,"I think he's wrong," Mr. Bryen countered. "I believe In justice in theold-fashioned sense. Either you're gUilty of something or you1re innocent. Thereis no reason I shou

The example of Mr. Bryan i l lustrates the complexities of friendships andassociations entered by some officials who support Israel'. In his financialdisclosure statement filed when he taok office in 1981, Mr. Bryen listed hismost recent major source of income as the American-Israel Public AffairsCommittee, the pro-Israel lobby that has a staff of 82 a n a nationalmembership.In addition, Mr. Bryen's wife Shoshana directs the Jewish Institute for

National Security Affairs, a group of prominent Americans "committed toexplaining the link between u.s. national security and Israel 's security, andassessing what we can and must do to strengthen both," in the words of theinsti tute 's newsletter.

Officials and former officials describe a schizophrenic attitude in theGovernment toward Israel that has transcended administrations. They say Israeland its American supporters have considerable political influence. On the otherhand, that influence antagonizes the mIddle-level military officers,intelligence officials and civilians Who represent the bureaucracy's longinstitutional memory.A former Pentagon official described a scene he said was typical: An Israeli

colonel, a military attaChe, has a Pentagon pass, as do attaches from otherfriendly countries. He goes into an intelligence office at night and asks thecaptain or major on duty for some urgent information. The junior officerheSitates, saying such data is not included in guidelines of materIal to bereleased. The Israeli colonel presses, hinting that he may have to call hisambassador. The American, caught between two risks, may decide either way, theofficial said, but a resentment smolders.

The military's annoyance at Israel has other roots as well, includingremaining anger over the Israeli sinking of the U.S.S. Liberty, an American spyship in the Mediterranean during the 1967 war. Thirty-four men were lost in whatIsrael maintains was an accident.Israel 's contInUing ability to get military eqUipment right off the assemblyl ines, even when i t 15 needed by United states forces, has also generated

resentment. One American officer recalled dealing with one of the Israelis. . ' W _ ~ a _ ~ , V / _ ~ r = \ V / . ~ UC\V , c


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PAGE 11(c) 1985 The New York Times, December 22, 1985involved in the Pollard case - Yosef Yagor, who was l isted as a science attachebut was known to the American as a procurement officer based in the IsraeliConsulate In New York. "He had the exact numbers of soph1sticated types ofweapons that nobody was supposed to know existed, " the officer said . TheIsraeli requests are routinely denied by the military, he added, only to begranted at the higher poli t ical levels of the Defense Department .. A Danger IsSeen Of Anti-Jewish Feeling Some officials see a danger that antI-JeWishsentiment lurks behind an effort to plug leaks to Israel. Though some ~ e w i s h officials feel comfortable dealing with the Middle East, others and somenon-Jewish officials say they believe Jews who work on Middle East affairs do sounder a cloud, the Objects of vague and unjust suspicion.

"1 think there's probably some truth to that, '1 said Richard N. P e r l e ~ Assistant Secretary of Defense for International Secur1ty Polley and a strongfriend of Israel. "1 don't work on Middle East affairs, and I'm happy Idon' t . 1fA former White House off icial who is Jewish and a Middle East specialistdeclared: "1 will never go back to government. You are under a spotlight. .According to former offiCials, the C. I.A. kept Jews out of Middle Eastaffairs unt1l 1973, when William E. Colby became Director and made the agencymore open to minorities. A State Department official said that 15 or 20 yearsago, Jewish diplomats were usually not sent to the Embassy 1n Tel Aviv, just asItalian-Americans were not sent to Rome.As these restrictions have broken down, Jews have moved into responsiblepositions. 'I I am Jewish," one off icial said . "I don't feel pressure. I neverget pressure from the Israeli Embassy either, which is testimony to their

sma rtness. I IA dispatch from Washington on Sunday about the abili ty of Israel to obtain

sens1tive information about American weapons, technology and policy incorrectlystated the damage caused by an Israeli air and sea attack In 1967 on theLiberty, an American spy ship in the H e d i t e r r ~ n e a n . The Ship was badly damagedbut was able to reach port 1n Malta.GRAPHIC: Photo of Jonathan Jay Pollard being taken frotum a hearing lastmonth at U.S. District Court in Washington (UP!)SUBJECT: UNITED STATES INTERNATIONAL RELATIONS; UNITED STATES ARMAMENT ANDDEFENSE; ESPIONAGE; NATIONAL SECURITY; ARMAMENT, DEFENSE AND MILITARY FORCESNAME: SHIPLER, DAVID KGEOGRAPHIC: ISRAEL, STATE OF


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. ......."'."". - _ I!!ln:;IlO._= __......~ . x l J i t; E 'tt:..,.,...,iI\Tew Tack'on CaSeS Against Israel?

Ey STEPHEN ENGELBERG /J'r'T( m6S'-FRf' ;JULY) lfiSpociaJ 10 The N.... York nmes . . :. - - _ - : ~ ~ . : . :.- ~ ' . - . - ~ .. .'W.""-SHING'fON, July 10 ...,.. There. ._. . 4 ~ : : ,.'- . .--:. .... : :,;."\ . ..was once a time when allegations that= the Israeli Government had violated'American law were handfed with an eye to preserving theclose relatlon-. .. .. :;; ..ship between the United States and Is- _... rae! _ . . . . . . ," :. -. . .

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