Judge asked for secret Pollard memo, says ex-U.S. aide

WHIPPANY, N.J. -- Caspar Weinberger has dropped a bombshell that could dramatically affect the fate of Jonathan Pollard.

In an interview in the September issue of the Middle East Forum, the former defense secretary says that his still-secret memo to Judge Aubrey Robinson was written at the request of the presiding judge, who "made a formal, official request to me to supply" an assessment of the damage caused by Pollard's espionage.

The Weinberger memorandum, which is still classified, has always been withheld from the Pollard defense team.

His revelation is important because the Weinberger memo remains central to Robinson's decision to overturn Pollard's plea bargain agreement with the Justice Department. It is also routinely cited as evidence of the severity of Pollard's crime in passing classified information to Israel.

"The judge is allowed to read stuff from a relative saying 'this is a good guy,'" Alan Dershowitz, Harvard law professor, told the New Jersey Jewish News. But now judges routinely "put everything on the record. It is improper to secretly solicit information and then, on the record, imply that [U.S. Attorney Joseph] de Genova introduced it."

Although Dershowitz allowed that not all information is shared, he said that "anything the judge asks for has to be put on the record. For the judge to solicit a substantive memorandum and then to use it in this way raises fundamental questions."

In the interview with the Forum's Daniel Pipes, Weinberger repeats his statement about the involvement of Robinson five times:

*"I said everything I knew about Pollard at the request of the United States District Court."

*"I gave the judge an affidavit that was classified because it went into great detail about the extent of the damage that was done and the number of lives of our people that were endangered."

*"That covered a lot of sources and methods at the court's request."

*"What I had to say, I said at the court's request in the classified affidavit."

*"We were impacted very severely. That was the exact subject matter of the information that the judge wanted in the case, and he made a formal, official request to me to supply it to him, and I did."

Robinson did not inform the defense that he had invited a submission from the secretary of defense and made no provision for the defense to see the submission in advance. Nor did he allow the defense counsel adequate time to study the submission and prepare a legal defense to challenge it.

In a Sept. 28 letter to the Jewish News, Pollard spelled out what he saw as the consequences for his case.

"If Weinberger is lying about the judge having solicited his memorandum, then this seriously calls into question his credibility as an 'assessor' of my actions," Pollard writes.

"On the other hand, if he's telling the truth and the judge did, in fact, engage in such ex parte behavior, then somebody's going to have to stand up and call for a full-scale investigation of the judge's behavior.

"His apparent unethical actions in this matter were later compounded by his decision to uphold the government's refusal to share Weinberger's memorandum with my lawyers during the...appeal over which he presided."

In making the revelation, Weinberger does not back away from his assessment that Pollard caused significant damage to the United States.

"The whole case was a source of very considerable potential and actual danger and damage to the United States, primarily from the vantage point of information, intelligence sources and methods that were lost," Weinberger said. "We were impacted very severely."

Curiously, Weinberger professed ignorance of the Victim Impact Statement filed by the U.S. government sometime between May 1986 and January 1987. In detailing the government's view of the damage caused by Pollard's espionage, the statement predicted that Pollard's crime would threaten U.S. relations with its Arab allies and reduce U.S. bargaining leverage over intelligence with the Israelis.

"I'm not familiar with that statement; I suppose I should be," the former defense secretary said.