Dagan believed the affidavit contained crucial details about how Promis software—developed by the specialist Inslaw computer company in Washington and later stolen by Mossad—had been adapted to fit into the artificial intelligence on board U.S. nuclear submarines. The resulting capability was known as “over-the-horizon accuracy,” enabling a submarine to hit targets far within the then Soviet Union and China. The Promis software could program details of the defenses around a target along with the advanced physics and mathematics needed to ensure a direct hit from huge distances.
Dagan also feared the affidavit outlined how Israel had developed its own over-the-horizon accuracy for three German-built nuclear-powered submarines it had bought, based on what Pollard had stolen. Dagan further suspected the affidavit contained details of joint U.S.-British listening posts on Cyprus and in the Middle East, which Pollard had compromised, and revealed how Pollard had also compromised CIA-MI6 operations in the Soviet Union and the former East Germany.
While this had led to a considerable change in U.S. intelligence, the data in the Weinberger affidavit was deemed to be still so ultrasensitive that its publication would provide valuable information to foreign intelligence services—including Mossad.
So important was Pollard to Israel that Dagan had sent a Mossad lawyer to attend Pollard’s first public appearance since he was sentenced. The case was heard in the Washington District Court in September 2003. Pollard looked older than his forty-seven years, his skin paler, his eyes occasionally glancing round the packed courtroom. He wore wire-rimmed spectacles, an embroidered yarmulke, and a green prison overshirt. He had a gray-brown beard and shoulder-length hair, giving him the appearance of an Old Testament prophet. Some forty relatives and supporters packed the small courtroom. They included several rabbis, among them Israel’s former chief rabbi, Mordechai Eliahu. His wife, Esther, and his father were also present. Pollard closely followed the legal arguments. The Mossad lawyer, a slim, middle-aged man, sat at the back of the court, taking notes in Hebrew.
The nub of Pollard’s case was that he should be allowed to appeal his sentence because his then attorney, Richard Hibney, had failed to file a notice of appeal when the prosecution asked the trial judge, Aubrey Robinson, for a life sentence without parole after “inducing Pollard to plead guilty by promising the State would not ask for life.” A further argument centered around the claim that Pollard’s then defense team had been refused access to the Weinberger affidavit “because they did not have the requisite security clearance.” Pollard’s new lawyers told the court they were also “seeking a pardon or sentence commutation” from the Bush administration. That part of the argument was “based on Pollard’s rights as an American citizen to due process.”
Over the years, Pollard’s attorneys had had meetings with Israeli prime ministers Benyamin Netanyahu, Ehud Barak, and Ariel Sharon. They had also met with Mossad intelligence chiefs Nahum Admoni, Shabtai Shavit, Danny Yatom, Efraim Halevy, and more recently, Meir Dagan. There had been a carefully orchestrated campaign in Israel to bombard the U.S. embassy with requests for Pollard’s freedom. Top Jewish lawyers had traveled from Israel to meet with equally renowned lawyers in the United States to plan legal moves. No defendant had had such a powerful support system. At every opportunity, the all-powerful Jewish lobby in Washington had battled tirelessly.
The Conference of Presidents of Major Jewish Organizations, a consortium of fifty-five groups, continued to argue in 2004 that whatever Pollard had done could not be called treason “because Israel was and remains a close ally.” Further pressure constantly came from many leading Jewish religious organizations. The most vociferous was the powerful Reform Union of American Congregations. Harvard Law School professor Alan M. Dershowitz, who had served as Pollard’s lawyer, had said. “There is nothing in Pollard’s conviction to suggest that he had compromised the nation’s intelligence-gathering capabilities or betrayed world-wide intelligence data.”
But Pollard still had an equally powerful opponent: George Tenet, director of the CIA. In 1998, Tenet had said he would resign if Pollard was released. That still remained his position in 2004. Ted Gunderson, a top FBI agent at the time Pollard was arrested, said “Pollard stole every worthwhile intelligence secret we had. We are still trying to recover from what he did. We had to withdraw dozens of agents in place in the former Soviet Union, in the Middle East, South Africa, and friendly nations like Britain, France, and Germany. The American public just doesn’t know the full extent of what he did.”
