Pursuant to Rule 29 of the Local Rules for the District Court of the District of Columbia, the American Civil Liberties Union of the National Capital Area hereby moves for leave to file the accompanying brief as amicus curiae in support of defendant's Emergency Motion To Add To List Of Defense Counsel Authorized To Access Sealed Docket Materials Pursuant To Protective Order ("Motion to Add to List of Counsel").

Counsel for the defendant has consented to the granting of this motion. On December 5, 2000, counsel for the plaintiff, Ronald Walutes of the United States Attorney's Office, indicated that the government does not oppose the granting of this motion.

The American Civil Liberties Union of the National Capital Area is the local affiliate of the American Civil Liberties Union (ACLU), a nationwide, non-profit, non-partisan organization with nearly 300,000 members dedicated to protecting the principles embodied in the Bill of Rights. The ACLU has a long history of defending civil liberties through promoting openness in government and protecting the people's right to know what their government is doing in the face of excessive government claims of national security. In this case, the government seeks to deny a security-cleared defense attorney access to classified information used by the government to sentence his client and to maintain his client's continued incarceration. This case raises serious questions about the government's power to control successor counsel's access to the information in his own client's case file.

The ACLU itself often represents clients in cases involving national security issues, see, e.g., Webster v. Doe, 486 U.S. 592 (1988); Snepp v. United States, 444 U.S. 507 (1980); Molerio v. Federal Bureau of Investigation, et al., 749 F.2d 815 (D.C. Cir. 1984), and thus has a strong interest in ensuring that an attorney's ability to represent his client is not unnecessarily compromised in the name of national security, especially where safeguards exist to protect governmental interests.

Accordingly, we submit the accompanying brief as amicus curiae in support of the defendant's Motion to Add to List of Counsel and urge this Court to allow defendant's security cleared counsel access to classified materials in the court's file, as expressly permitted under the terms of the Protective Order in this case.

A proposed order is attached.

Dated: December 6, 2000

Respectfully submitted,

________________________

G. Brian Busey (D.C. Bar No. 366760)
Veronica S. Parkansky
Brett A. Walter

Morrison & Foerster llp
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1888
(202) 887-1500

Arthur B. Spitzer (D.C. Bar No. 235960)
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
(202) 457-0800

Counsel for Amicus American Civil Liberties Union of the National Capital Area

Upon consideration of the unopposed motion of the American Civil Liberties Union of the National Capital Area for leave to file a brief as amicus curiae in support of defendant's Emergency Motion To Add To List Of Defense Counsel Authorized To Access Sealed Docket Materials Pursuant To Protective Order, it is, this ___ day of December, 2000, hereby

Ordered that the motion is granted and the Clerk shall file the lodged brief.

_______________________

Norma Holloway Johnson
United States District Judge

The American Civil Liberties Union of the National Capital Area is the local affiliate of the American Civil Liberties Union (ACLU), a nationwide, non-profit, non-partisan organization with nearly 300,000 members dedicated to protecting the principles embodied in the Bill of Rights. The ACLU has a long history of defending civil liberties through promoting openness in government and protecting the people's right to know what their government is doing in the face of excessive government claims of national security. In this case, the government seeks to deny a security cleared defense attorney access to classified information used by the government to sentence his client and to maintain his client's continued incarceration. This case raises serious questions about the government's power to control successor counsel's access to the information in his own client's case file.

The ACLU itself often represents clients in cases involving national security issues, see, e.g., Webster v. Doe, 486 U.S. 592 (1988); Snepp v. United States, 444 U.S. 507 (1980), and Molerio v. Federal Bureau of Investigation, et al., 749 F.2d 815 (D.C. Cir. 1984), and thus has a strong interest in ensuring that an attorney's ability to represent his client is not unnecessarily compromised in the name of national security, especially where safeguards exist to protect governmental interests.

Accordingly, we submit this brief as amicus curiae in support of the defendant's Emergency Motion To Add To List Of Defense Counsel Authorized To Access Sealed Docket Materials Pursuant To Protective Order ("Motion to Add to List of Counsel") and urge this Court to allow Mr. Pollard's security cleared defense counsel access to classified materials in the court's file, as expressly permitted under the terms of the Protective Order in this case.

Since 1987, Jonathan Pollard has been serving a life sentence in federal prison. Mr. Pollard did not have a trial, but pled guilty to one count of conspiracy to commit espionage. He was sentenced on the basis of information contained in classified documents, to which his then-attorney had access.

That lawyer no longer represents Mr. Pollard. Mr. Pollard has recently retained new counsel to represent him in, inter alia, seeking executive clemency from the President of the United States pursuant to Article II, Section 2, of the United States Constitution. It is beyond doubt that if the Department of Defense and/or the Department of Justice opposes clemency, they will rely primarily upon that classified information in arguing that clemency should be denied.

Mr. Pollard's new attorney therefore urgently needs access to this classified information so that he can represent his client effectively. In order to obtain that access, the new attorney obtained a Top Secret national security clearance, executed the necessary documents pledging to handle the classified information properly, and asked the government to consent to his access to the sealed portions of his client's court file. But the government has refused to consent, stating (thus far) only that Mr. Pollard's new counsel does not have a "need to know" the classified information. See September 22, 2000 Letter of United States Attorney Wilma Lewis (attached as Exhibit E to defendant's Memorandum in Support of Motion to Add to List of Counsel).

The question now before this Court is whether a security-cleared successor counsel ought to have access to all of the material in his client's Court file to which his predecessor counsel had access and which he undeniably needs in order properly to represent his client. Both logic and precedent answer this question in the affirmative. The government's refusal to consent represents simply the desire of one side in an adversarial process to handicap the other side, and should be given no more weight than that self-interested position deserves.

1. The Protective Order Plainly Contemplates That Successor Counsel Will Have Access To The Sealed Materials

   Access to the sealed material contained in the Court's file is governed by the terms of a Protective Order entered by Judge Aubrey E. Robinson on October 24, 1986. See Protective Order (attached as Exhibit E to defendant's Memorandum in Support of Motion to Add to List of Counsel). The Order provides that certain named individuals -- including Mr. Pollard's then-defense attorney, Richard Hibey - will have access to the classified materials. The Order then goes on to provide, in great detail, the procedure through which "other individuals," other than government officials, may obtain authorization to access the classified material.¹ It is difficult to imagine what non-governmental individuals could have been more in the minds of the drafters of the Protective Order as likely additional individuals to receive future access to the sealed materials in the record than successor counsel to Mr. Pollard's then-defense attorney.

   The Protective Order does not require government consent as a condition of access. Mr. Pollard's new counsel has complied with the carefully-drafted and comprehensive requirements for access set out in the Protective Order, and agreed to by the government when that Order was entered. Mr. Pollard's new, security-cleared attorney should be given access to the sealed portions of his client's court file, pursuant to the Protective Order, as a matter of course.

   The Government Cannot Properly Deny Access To Classified Materials On National Security Grounds Where Counsel Has The Requisite Security Clearance And Needs Access To The Materials In Order To Represent His Client Effectively

   The government's refusal to consent to this motion reflects an abdication of a fundamental duty. Thus far, the government has focused exclusively on its "interest in protecting . . . the secrecy of information important to our national security." Snepp v. United States, 444 U.S. 507, 509 n. 3 (1980). Unfortunately, the government has ignored its equal "duty to see that justice is done" to a criminal defendant whom it has chosen to prosecute. United States v. Reynolds, 345 U.S. 1, 12 (1953). As Justice Brennan observed in a dissenting opinion, in a statement with which the majority did not disagree:

   [T]he Executive Branch has an obvious and imperative obligation to preserve the national security. But when the executive branch chooses to prosecute a violation of federal law, it incurs a constitutional responsibility manifestly superior to its other duties: namely, the responsibility to ensure that the accused receives the due process of law. The Government simply cannot be heard to argue that the criminal defendant's right may be infringed because of the Executive Branch's "other responsibilities": Given the vast and manifold character of those responsibilities to accept such an argument would be to accede to the rapid evisceration of the constitutional rights of the accused.

   United States v. Valenzuela-Bernal, 458 U.S. 858, 880-881 (1982) (Brennan, J., dissenting). Thus, while respecting the government's interest in national security, courts "must not be remiss in protecting a defendant's right to a full and meaningful presentation of his claim[s]." United States v. Omar Mohammed Ali Rezaq, 899 F.Supp. 697, 708 (D.C. 1995) (citation omitted) (recognizing defendant's interest in accessing classified information and denying government's motion to modify protective order to further constrain defendant's attorney's use of classified materials).

   Due regard for national security does not require denying access to classified documents in all circumstances. Id. Rather, the requirement that defense counsel obtain the appropriate security clearance before being granted access to classified information strikes a fair balance between national security and civil liberties.

   As the Senate Select Committee on Intelligence has explained, security clearances "go to individuals whose records demonstrate a clear aptitude for security. That is, their background and personal qualities [show] a high sense of responsibility." Meeting the Espionage Challenge : A Review of US Counterintelligence and Security Programs -- Report of the Select. Comm. on Intelligence, S. Rep. 99-522, 99th Cong. 2d Sess. 71 (1986). Protective orders which require parties seeking access to classified documents to submit to security clearance procedures - consistent with the requirements of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. 3 §§ 1-16 - have been deemed sufficient to prevent disclosure of classified information. See, e.g., United States v. Omar Mohammed Ali Rezaq, 899 F.Supp. at 708 (protective order which tracked the provisions of CIPA was "more than adequate procedural protections against public disclosure of classified information"). The Protective Order in this case is no different, and nothing further is needed to safeguard the government's interest in protecting the secrecy of information important to national security.

   United States v. Usama Bin Laden, 58 F.Supp. 2d 113 (S.D.N.Y. 1999), is instructive on this point. There, defendants and counsel filed a motion to invalidate the government's request for an order requiring counsel to submit to security clearance before having access to confidential information. Defendants alleged that the court lacked authority to require clearance of counsel and that the requirement itself was unconstitutional. The Court held that it possessed the power to require counsel to submit to a security clearance procedure should they wish to access classified information. In so ruling, the Court determined that security clearance was the best mechanism to prevent unauthorized disclosure of classified information that implicated national security concerns.

   In this case, the government should not be heard to contend that providing Mr. Pollard's new counsel access to the classified documents would present any threat to national security, for the simple reason that the very same government has just issued Mr. Pollard's counsel a Top Secret national security clearance. It is well settled that while "the attempt to claim Executive prerogatives or infringe liberty in the name of security and order may be motivated by the highest of ideals, the judiciary must remain vigilantly prepared to fulfill its own responsibility to channel Executive action within constitutional bounds." Zweibon v. Mitchell, 516 F.2d 594 ,604-05 (D.C. Cir. 1975). Where, as here, counsel has obtained the appropriate security clearance, this Court has the power to allow access to the classified documents. Cf. Hayden v. NSA, 608 F.2d 1381, 1386 (D.C. Cir. 1979) (noting that it would not be appropriate to allow access to classified defense-related material to counsel who lacks a security clearance.)²

   Based on its previous correspondence, we surmise that the government may argue that despite his Top Secret clearance, Mr. Pollard's new counsel has no "need to know" the contents of the sealed materials in the court file. But such an argument would be worthy of no respect. As we explain below, that material will almost certainly be critical to the new attorney's ability effectively to represent his client.

   The Government's Attempt To Withhold Classified Information From Pollard's Security Cleared Counsel Undermines The Adversarial Process

   As set forth in defendant's motion, counsel's ability to respond to the information in the classified documents is likely to be essential to Mr. Pollard's application for executive clemency. While an application for clemency is an extra-judicial proceeding, it is still, plainly, an adversarial process in which the United States Attorney and the Department of Justice are (at least in this case) on the opposite side of the applicant. Allowing the government to decide whether defendant's counsel will have access to his client's case file will deprive the client of his right to have counsel assist him in seeking clemency.

   Defense counsel's ability to access classified documents upon which the government will rely is fundamental to maintaining the basic fairness of the process. See McNabb v. United States, 318 U.S. 332 (1943) (supervisory function of the Courts include the obligation to protect the rights of the accused). The very "essence of the adversary system is challenge. The survival of our system of criminal justice and the values which it advances depends upon a constant, searching, and creative questioning of official decisions and assertions of authority at all stages of the process. The proper performance of the defense function is thus as vital to the health of the system as the performance of the prosecuting and adjudicatory functions." United States v. Hardy, 375 US 277, 291 n.9 (1964).

   Giving the government the power arbitrarily to control access to classified materials threatens these basic principles, and the courts have recognized that it would be fundamentally unfair for the government to bring serious charges against an individual and at the same time withhold crucial evidence from the defense. See, e.g., United States v. Andolschek, 142 F.2d 503 (2d Cir. 1944). Andolschek was a criminal case in which the government sought to suppress confidential documents. Judge Learned Hand stated:

   While we must accept it as lawful for a department of the government to suppress documents . . . we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate and whose criminality they will, or may, tend to exculpate.

   142 F.2d at 506; see also United States v. Coplon, 185 F.2d 629, 638 (2d Cir. 1950) ("Few weapons in the arsenal of freedom are more useful than the power to compel a government to disclose the evidence on which it seeks to forfeit the liberty of its citizens."). Indeed, there is "no significant distinction between introducing evidence against an accused which he is not allowed to see and denying him the right to put in evidence on his own behalf." See Coplon, 185 F.2d at 638. It is for these very reasons that the Classified Information Procedures Act was adopted, and that Mr. Pollard's previous defense counsel was given access to the sealed materials.

   While these precedents do not apply directly to Mr. Pollard's application for executive clemency, their reasoning is fully applicable. While the government is not now trying to put Mr. Pollard in prison, it is trying to keep him there. The deprivation of liberty is the same. And the unfairness of keeping his attorney in ignorance of the information on which the government will rely to oppose his application is the same. While Mr. Pollard is not now entitled to the same due process protections as the Sixth Amendment would have provided had he gone to trial, the proper operation of the clemency process equally depends on counsel's ability to develop all the relevant facts and to rebut the adversary's allegations. It is very easy to imagine the outrage that would emanate from the Department of Justice if its attorneys were blocked from access to the factual basis of arguments that a clemency applicant was making to the President. It would be equally outrageous for the applicant to be blocked from the factual basis of the arguments that the government will be making to the President.

   At its core, the government's position here invokes the "outworn myth that only those in possession of [] confidences can have the expertise to decide with whom and when to share their knowledge." Senator Edmund S. Muskie, 120 Cong. Rec. 17023 (1974) (floor debate regarding standards appropriate for judicial review of claims under Exemption 1 of the Freedom of Information Act). But the truth, as Justice Stewart recognized in his Pentagon Papers concurrence, is that the national security classification system can all too easily "be manipulated by those intent on self-protection and self promotion." New York Times v. United States, 403 U.S. 713, 729 (1971) (Stewart, J. concurring). The government's refusal to cooperate in allowing Mr. Pollard's successor counsel to have access to his client's court file should be recognized for the petty, vindictive, and self-protective act that it is.

CONCLUSION

The government's refusal to allow Mr. Pollard's security cleared successor-attorney access to the sealed portions of the Court's case file is inconsistent with the obvious intent of the Protective Order and with the fundamental principles of fairness that underlie our adversarial system, including the executive clemency process. Accordingly, amicus urges this Court to implement the Protective Order and add Mr. Pollard's new security-cleared counsel to the list of those with access to the court file.

Dated: December 6, 2000

Respectfully submitted,

G. Brian Busey (D.C. Bar No. 366760)
Veronica S. Parkansky
Brett A. Walter
Morrison & Foerster llp
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1888
(202) 887-1500

Arthur B. Spitzer (D.C. Bar No. 235960)
American Civil Liberties Union
of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
(202) 457-0800

Counsel for Amicus American Civil Liberties Union of the National Capital Area

Footnotes

1. See Protective Order at 10 (must obtain security clearance); 11 (must execute secrecy agreement); 12 (must sign Memorandum of Understanding; 13 (must require those assisting with defense to submit to security investigation); 14 (must submit requests for disclosure for Court approval); 15 (must review classified documents at secure location and under certain restrictions); 16 (must have approval of Court Security Officer to copy classified documents); 18 (must only discuss classified information in approved location); 19 (must only discuss classified information over approved communications systems); 20 (defense counsel's written materials containing classified information must be handled only by persons with security clearance).

2. Amicus is aware that in 1990, one of Mr. Pollard's successor-counsel unsuccessfully petitioned this Court for access to certain classified documents in connection with a § 2255 motion. See United States v. Pollard, 747 F.Supp. 797, 806-07 (D.C. 1990). The court of appeals affirmed the denial of the § 2255 motion, without passing on the propriety of the denial of access to the sealed record. United States v. Pollard, 959 F.2d 1011 (D.C. Cir. 1991) ("Assuming arguendo that the district court judge's refusal to direct the United States Attorney to provide Pollard's new counsel with access to the Weinberger classified submission was erroneous, our examination of the material satisfied us that the error was harmless.").

   Even if Judge Robinson's denial of access in 1990 was correct -- which we doubt -- such a denial would be improper here, as the reasons given by Judge Robinson suggest. Judge Robinson gave three reasons for his denial: (1) that "defendant's claims of exaggeration and inaccuracy in the unclassified portion of the Weinberger Declaration simply do not withstand scrutiny"; (2) that "[t]he sentence here was well within the Court's discretion"; (3) that "[d]efendant's current counsel has access both to defendant and, presumably, prior counsel and his files [and t]here is no allegation that either defendant or prior counsel cannot recall the substance of these materials." United States v. Pollard, 747 F.Supp. at 807. None of those reasons is applicable here.

   First, whether the unclassified portion of the Weinberger Declaration is accurate is not at issue here, and indeed, seems irrelevant to the question whether the classified portion of the Declaration will be used against defendant in his application for clemency. Second, the fact that the court's sentence was legal is also not at issue here. And third, it has now been nearly 15 years since defendant or his counsel saw these materials, and it is not reasonable to presume that they can recall the details with any exactitude after such a lengthy period of time. We assert with complete confidence that the government counsel reviewing Mr. Pollard's application for executive relief will not be satisfied to rely on a discussion with government counsel from 1987 as their sole source of information on what is in the sealed portions of the record.