From November, 1992 to September 1994, Lt. Cmdr. Michael Schwartz delivered secret national defense information to Saudi Arabia. A 15-year Navy veteran, Schwartz was subsequently arrested and indicted for violating both the Uniform Code of Military Justice and various federal statutes.
The indictment stated that while he was assigned to the U.S. Military Training Mission in Riyadh, Schwartz had willfully compromised sensitive information `with intent or reason to believe it would be used to the injury of the United States, or to the advantage of the Kingdom of Saudi Arabia.' According to press reports, the documents in question included classified digests, intelligence advisories and tactical intelligence summaries. These documents were classified up to the secret level and specified `no foreign disclosure.'
Although Schwartz was scheduled to be court-martialled for his action, he accepted a last-minute plea agreement offered by the Navy. While such arrangements are not unusual, particularly in espionage cases involving American allies, Schwartz' so-called `punishment' was unprecedented: `other-than-honorable' discharge from the Navy. In other words, Lt. Cmdr. Michael Schwartz was not obliged to spend a minute in jail.
For a remarkably similar offense--giving classified information to an ally--Jonathan Pollard received a life sentence with a recommendation that he never be paroled.
What are the differences between the two cases?
The obvious ones have anti-Semitic overtones: Schwartz is not Jewish, and Pollard was spying on behalf of Israel. Not nearly as apparent is that the U.S. Government--which had expressed official outrage at Israel's `arrogance' in the Pollard case and proclaimed loudly (without offering any evidence) that his espionage was the worst in American history--has handled the Schwartz case with kid gloves and virtual silence.
Even the Jewish War Veterans, whose lack of sympathy for Pollard is a matter of record, was nevertheless moved to revulsion by the Schwartz affair. The JWV said that it believes `that when compared to other crimes of espionage by Navy personnel, both to enemy and friendly governments, the punishment is a farce. In each of the other cases, harsh prison sentences, including life-time sentences, were meted out.' The Jewish veterans also questioned what information was passed to the Saudis, and who in the Saudi royal family knew of the Schwartz espionage.
Other questions, as well, beg answers:
Have the Saudis been asked for a formal apology?
Have they promised not to recruit any more American intelligence officers or to
close the intelligence unit responsible for the affair? Have the Saudis agreed to allow participants in the operation to be questioned by American counter-espionage authorities? Have they returned all the stolen documents? What other countries may have seen the information Schwartz gave to the Saudis? (This item loomed large in the Government's assessment of Pollard. Why did it lose its relevance for Schwartz?)
Granted, the Navy's unwillingness to address any of these issues may be understandable; but it's also important to recognize the fact that a mindset like theirs, which subordinates American interests to protecting Saudi sensitivities at all costs, can have deadly consequences. Anyone doubting this need only recall the bombing of our Khobar Towers facility in Dhahran two years ago. Reacting to the inadequate security precautions that allowed this outrage to occur, a Washington Post editorial of July 12, 1995 observed that `The suggestions of American reluctance to offend the culturally delicate Saudis by demanding more attention to the security of Saudi Arabia's American protectors amount to an intelligence failure of a profound sort.' No doubt this same type of craven fear of ruffling Saudi Arabia's feathers was the principal reason why Schwartz did not have to stand trial nor suffer a jail sentence, and was not referred to by the Secretary of Defense as a `traitor'--something which Pollard, by the way, was falsely accused of being by Caspar Weinberger.
Although the Government subsequently apologized for Weinberger's groundless charge, this episode should remove any doubt as to what the Department of Defense's actual attitude towards Israel was at the time of Pollard's arrest. It also tends to confirm what many in the Jewish community have believed all along; namely that the Pollard affair was used by certain elements within our national security establishment as a means of tarnishing the popular perception of Israel as both a valuable and reliable ally. After all, if Pollard was a `traitor' as Weinberger had stated who, then, was the `enemy'? That Schwartz was never used to smear the country he served, further highlights the politically-driven distinction our government drew between these two cases of `friendly' espionage.
There are, of course, other aspects of the Schwartz case which President Clinton obviously never even considered before he turned down Pollard's last clemency appeal. For example, the Government's decision not to prosecute Schwartz calls into question CIA arguments that Pollard cannot be released because he knows too much. This is an absurdity. Schwartz was spying until recently, whereas Pollard has been in prison for more than 11 years! How is it that Schwartz is not a threat to national security but Pollard is?
The President also seems to have been heavily influenced by the views of Joseph DiGenova, the U.S. attorney who prosecuted Pollard. Briefly put, DiGenova feels that individuals caught spying for close allies like Israel should actually be punished more harshly than those caught spying for enemies, since there is a greater `danger' that individuals would feel more predisposed to help friends. If there is any merit to this
logic, it has been totally lost in the government's refusal to prosecute Schwartz vigorously, rather than to have set him free. But nobody, apparently, brought this to the President's attention.
Lastly, our government sought to justify its decision not to prosecute Schwartz by claiming that the information he provided Saudi Arabia was `less sensitive' than what Pollard gave to Israel. One needs to recall, though, that Schwartz was indicted and confessed to a serious crime. Clearly, some punishment was therefore warranted beyond his mere `less-than-honorable' discharge from the Navy. The fact that this did not occur demonstrates that extra-legal considerations came into play in the disparate treatment. In other words, politics was allowed to corrupt the U.S. judicial system. Anything, then, the national security establishment might have to say about the relative sensitivity of Schwartz' information is simply too tainted to be believed. Yet, the same intelligence and defense agencies who rescued Schwartz from prosecution are the very ones who have counselled President Clinton to adhere to a policy of `selective prosecution' towards Pollard. So how objective could their advice have been?
It seems, though, that nobody has seen fit to point this out to the President; and unless somebody does, Clinton will never know why his refusal to commute Pollard's sentence threatens to undermine one of our most important legal traditions: namely, the assurance that when a person is convicted of breaking the law, he or she will receive approximately the same punishment that any other person would receive for a similar violation that was committed under comparable circumstances. However, given the way Schwartz was preferentially handled, this principle of equal justice has been grossly violated in the case of Jonathan Pollard. But Clinton not only declined to correct this situation by granting Pollard clemency, he did so in a way that placed his own imprimatur on Pollard's clearly-aberrant life sentence.
What a growing number of people are slowly recognizing, though, is that if our legal system does not work for Pollard because of who and what he is, it could fail each and every one of us, as well, both as Jews and as Americans.
In our society, justice cannot simply be a theoretical concept--it must be seen to be done. Only in this way will our much-touted system of checks and balances have meaning. It is critical, therefore, that Congress investigate how a Saudi spy (Schwartz) was permitted to act with impunity while an Israeli spy (Pollard) was treated as an enemy agent. Two spies, two countries and two vastly different punishments cannot help but leave one with the distinct feeling that there is a double standard in need of challenging.
We all know what happens to an American who illegally passes classified U.S. intelligence data to Israel: life imprisonment, repeated refusals by the President to grant clemency, leaks to the media of false allegations against the defendant and against Israel. That's what happened in the Jonathan Pollard case. He broke the law and he was, understandably, punished for doing so.
In the case of Pollard, he helped a country that is America's closest ally in the Mideast. The information Pollard illegally gave Israel helped protect it from Arab aggression.
What happens, on the other hand, when an American illegally passes classified U.S. intelligence data to an Arab dictatorship that can hardly be described as a reliable ally of the United States? Lieutenant-Commander Michael Schwartz was last year arrested for providing such data to Saudi Arabia. A U.S. Navy grand jury indicted him on the charge of espionage, which carries a sentence of life imprisonment. His punishment? An `other than honorable discharge.'
Not a day in jail. Not a penny in fines. And not a word of concern from any Clinton Administration official about the fact that Saudi Arabia, which is supposed to be an ally of the United States, was using a spy to steal American intelligence secrets, just months after American soldiers were dying in defense of Saudi Arabia during the Gulf War. U.S. officials would not even publicly admit that the Saudis had recruited Schwartz; they told The Washington Post that Schwartz had not been hired by Saudi Arabia, but rather `was only trying to be friendly and cooperative to a U.S. ally.'
The government's handling of the Schwartz case is particularly troubling in view of the many recent Saudi actions that fell far short of what one would expect from an ally:
Saudi Arabia refused to let the U.S. use its territory to launch the recent missile strikes against Iraq.
The Saudis rejected America's request to let the FBI interrogate four terrorists who were involved in last year's attack against U.S. Army personnel in Saudi Arabia.
The Saudi authorities prevented the U.S. from capturing one of the world's most wanted terrorists, Imad Mughniyah of the Syrian-supported Islamic Holy War group, who was responsible for the 1983 bombing that killed 241 American Marines in Lebanon. Mughniyah was on an airplane that was scheduled to land in Saudi Arabia, and the U.S. informed the Saudis that they intended to arrest him during the stopover. The Saudis responded by preventing the plane from landing, so that Mughniyah could escape.
I recently had the opportunity to speak with Jonathan Pollard by telephone, from his prison cell in Buttner, North Carolina. He is now in his 12th year of incarceration, although no other individual convicted of a similar type of spying for an ally of the U.S. has ever served more than five years in prison. Jonathan asked me: `Why am I still in jail, while Michael Schwartz is walking free?' Good question--one that Jewish leaders should be asking Clinton Administration officials at every opportunity.