Even in the icy world of international espionage, it is still somewhat startling that “equal justice under law” is little more than a palsied proverb.

Consider these three cases of law and perfidy:

  • From November 1992 to September 1994, U.S. Navy Lt. Commander Michael Schwartz delivered secret American defense information to Saudi Arabia. Schwartz was indicted for violating various federal statutes as well as the Uniform Code of Military Justice. He pleaded guilty, and was given an “other than honorable” discharge from the Navy. No fine, no prison – and no comment.

    In fact the government is remarkably mum about Mr. Schwartz. Neither the Clinton Administration nor the Pentagon will disclose any information concerning his case – nor, apparently, has the Senate Intelligence Committee shown even a modicum of curiosity. Was any formal protest ever lodged against the Saudis? Do they continue to recruit American spies with impunity? Have they returned (or acknowledged) the stolen documents? Inquiring minds may want to know, but they’re not going to find out by asking the Navy or the White House. Or could it be that the United States fears offending its oil-rich ally – much the same way as during the Persian Gulf War when it ordered our soldiers to risk their lives defending the richest Arab monarchy, but not to celebrate Christmas on Saudi soil?

  • In 1986, Major Yosef Amit, who served in elite intelligence units of the Israel Defense Forces, was arrested at his home in Haifa and charged with providing classified military information to the United States. An Israeli court found him guilty and sentenced him to twelve years in prison. But in October of 1993 Amit was pardoned by Israeli President Ezer Weizman, and set free.

    Few Americans would know anything about Amit were it not for the fair-mindedness of Senator David Durenberger. In 1987 the former chairman of the Senate’s Select Committee on Intelligence disclosed that the United States had “changed the rules” by using “an Israeli to spy on Israel, and he got caught.” he was referring to Amit, but nothing ever came of his comment save for a scathing rebuke of Durenberger by then-Secretary of Defense Caspar Weinberger.

    This was not the only recent case of Americans spying on Israel. In the past ten years at least two Americans on academic and industrial exchange programs have also been caught gathering secrets – one from the nuclear research center in Nahal Soreq (south of Tel Aviv), the other at a state-owned weapons development company in Haifa. Israel’s response? Simply to ask both agents to leave the country at once.

    Where is Schwartz now? Amit? The American scientists? Neither the American nor Israeli governments seem to know, at least not according to the Pentagon and the IDF.

  • There is no such problem with Jonathan Pollard, whose whereabouts everyone knows. Pollard is the former Navy intelligence analyst who was arrested in 1985 and charged with passing classified information to Israel. The federal prosecutor engineered a plea agreement under which he would seek leniency in exchange for cooperation – then (after the defendant pleaded guilty) promptly reneged on his promises.

    The judge not only ignored the plea agreement, but solicited a secret memorandum from Weinberger that offered up all sorts of speculative evidence and specters of unprecedented treachery. Neither Pollard nor his lawyers were ever able to challenge the last-minute charges proffered against him. Weinberger called him one of the worst traitors in history; the judge sentenced him to life in prison; the duplicitous prosecutor recommended that Pollard never be paroled.

    And indeed he hasn’t, already having served thirteen years of by far the harshest sentence ever meted out for a similar offense. Where is Schwartz, who gave American secrets to the Saudis? OrAmit, who gave Israeli secrets to the United States? The U.S. and Israel know the full and precise extent of the damage done by the two of them – and that the damage done by Pollard was paltry in comparison. In thirteen years not one stance has surfaced (or documented in the Victim Impact Statement authored by his prosecutors) of any actual harm caused by Pollard.

Why have these three been treated so differently? All we know is what we’ve seen. The U.S. Government – which expressed official outrage at Israel’s “arrogance” and “ingratitude” in the Pollard case – has handled the Saudi-Schwartz situation with kid gloves and virtual silence. The Government of Israel – which for twelve years had claimed that Pollard was part of a rogue operation, but has now been forced by its own Supreme Court to acknowledge that he was formally and officially an agent of Lakam (an ultra-secret intelligence unit of the Ministry of Defense) – has sent back American spies with barely a slap on their wrists.

Why are these cases different? Because, we can reasonably surmise, of the causes being pursued.

With the Saudis, it’s petro-politics: Oil among allies is a powerful balm for soothing the slights that come with the territory in the world of international intrigue and espionage. With the Israelis, a different standard is at work. There is ample reason to believe that Weinberger and his minions exploited Pollard for two purposes: to call into question the “dual loyalty” of American Jews, and to put Israel in its place as a strategic but beholden ally. Saudi Arabia’s oil, after all, is much more marketable than Israel’s democratic pragmatism; the Jewish State’s chutzpah is somehow deemed more galling than that of the morally bankrupt House of Saud.

What’s the difference between Amit and Schwartz on the one hand, and Pollard (the lone spy of the three who was caught out in the cold, and has been kept there) on the other?

Only that “equal justice under law” does not apply – nor does the damage done matter – when there are greater political “causes” to pursue.

Kenneth Lasson is a law professor at the University of Baltimore.

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