Legal Doc: Court Decision - Pollard's Security-Cleared Counsel Denied Access to Secret Docket


UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v
JONATHAN J. POLLARD,
Defendant

Criminal No. 86-0207(NHJ)

Filed January 12, 2001

MEMORANDUM ORDER

Presently before the court is defendant's Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order. In early 1987, the government and defense counsel each submitted sentencing memoranda and related materials to the Court. Pursuant to the terms of the October 24, 1986, Protective Order entered by Judge Aubrey Robinson, a Security Officer would review the sentencing memoranda and related materials for classified information and redact those portions deemed classified. Copies of the sentencing memoranda and related materials that have had the classified information redacted are on the public record. Pursuant to the terms of the Protective Order, only specified individuals were permitted to view those documents containing classified materials. The Protective Order did allow counsel for Mr. Pollard at the time of sentencing to review the classified materials.

Mr. Pollard however, has since retained different counsel, Eliot Lauer. Mr. Lauer cannot have access to the classified materials without court order and requests permission to view the classified materials for the purpose of representing Mr. Pollard in executive clemency proceedings before President Clinton.

The Protective Order requires that persons not directly named therein must do the following to view the classified materials: (1) obtain a security clearance from the Department of Justice through the Court Security Officer, (2) execute appropriate nondisclosure agreements; and (3) sign a sworn memorandum of understanding set forth in the protective order. However, even if an individual completes the above three steps, he or she must still obtain the permission of the Court to view the classified materials. Mr. Lauer has obtained top security clearance, executed a nondisclosure agreement, and signed a memorandum of understanding. Mr. Lauer now seeks permission of the Court to view these classified materials.

The government opposes the motion of defense counsel to view the classified materials. It argues that the disclosure of the classified materials would pose a risk to national security. Moreover the government claims that defense counsel has not established a "need to know" the classified materials, and thus the motion should be denied.

After careful consideration of the motion, the response thereto, and oral argument, the Court finds that the motion of Mr. Lauer must be denied.

II. Discussion

The Supreme Court has "long recognized that a legitimate government privilege protects national security concerns." United States v. Yunis, 867F.2d 617, 622-23 (D.C. Cir. 1989) (citing In C&S Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111(1948). The government argues that the disclosure of classified materials to Mr. Lauer poses a risk to national security. The government asserts: "The presence of the Protective Order and guarantees of trustworthiness among defense counsel also do not fully protect the government's interest in preventing disclosure of classified information. Any unnecessary dissemination of classified information creates a greater risk that it will be compromised." United States v. China National Aero Technology Import and Export Corp., Criminal No. 99-0353, slip op. at 5 (D.D.C. 2000) (Citing United States v. Poindexter, 727 F. Supp. 1470, 1480 n.22 (D.D.C. 1989).

The Court has viewed the classified materials and finds that the exceptionally grave concern over national security is warranted. The documents contain information that if disclosed, even accidentally, would pose a grave risk to national security. Despite the fact that Mr. Lauer has obtained security clearances and signed the appropriate non-disclosure agreements, this does not outweigh the concern over national security.

The Court has considered the assertion of Mr. Lauer that he has a "need to know" the contents of the classified materials. Mr. Lauer claims that he has a "very real and pressing need ... to see these documents, in order to make an accurate and complete presentation to the President and his staff." Reply affidavit of Mr. Lauer. at 2. Defendant has submitted a written application for clemency and commutation of sentence to the President. See id. Defense counsel also met in Washington D.C. with members of the President's staff involved in clemency proceeding. See id. In support of his motion for access to the classified materials, Mr. Lauer states that the persons opposed to clemency for defendant invoke the sealed court materials as a basis for their opposition. Thus, "the only fair way for me as Pollard's counsel to challenge those arguments is to allow me to see the documents so I can properly address these arguments with the President's staff, while maintaining the strictest confidentiality of the information itself." id.

The Court finds that Mr. Lauer has not demonstrated a "need to know" the contents of the classified materials. First, the President has access to the classified materials and has authority to independently review them without the assistance of Mr. Lauer. Second, there is no evidence that the President, who has the authority to make the decision on whether to grant or deny clemency, has specifically asked Mr. Lauer questions about the contents of the sealed materials. Third, the President has available for review the memoranda prepared by defendant's previous attorney, who had access to the classified materials and commented extensively on the classified materials at the time of sentencing.

The court notes that the decision to deny Mr. Lauer access to the classified materials makes no statement regarding the success or failure of his clemency application before the President. This decision is confined to whether the Court should grant access to classified materials under the October 24, 1986, protective order.

Accordingly, it is this 12th day of January 2001, ORDERED that the defendant's Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order be DENIED.

(signed)
NORMA HOLLOWAY JOHNSON
CHIEF JUDGE


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