Exhibit D: Attorney's May 15, 2001 letter to Macisso and Gunning

Annexed to Jonathan Pollard's Motion to Modify the Court's January 12 2001 Order

[Click here to go directly to the Motion]

Annexed hereto as Exhibit D is a copy of a letter dated May 15, 2001 from Eliot Lauer and Jacques Semmelman to Court Security Officers Michael Macisso and Christine Gunning, written in reaction to the May 7, 2001 letter from Acting Assistant Attorney General Walter to Congressman Weiner.


May 15, 2001

VIA OVERNIGHT MAIL

Mr. Michael Macisso
Ms. Christine Gunning
U.S. Department of Justice
Security and Emergency Planning Staff
950 Pennsylvania Avenue, NW
Room 6525
Washington, D.C. 20530-0001

Re: United States v. Jonathan Pollard, Crim. No. 86-0207 (NHJ)

Dear Mr. Macisso and Ms. Gunning:

We represent Jonathan Pollard.

On July 28, 2000, Mr. Lauer submitted an application for security clearance. On September 20, 2000, Mr. Semmelman submitted an application for security clearance. The purpose of each application was specifically to be able to gain access to the classified documents and information in the Pollard case. We each completed the necessary forms, submitted fingerprints, answered the questions put to us at our FBI interviews, and provided further information as requested.

On November 2, 2000, Mr. Lauer met with Ms. Gunning. He was specifically informed that he now had the appropriate level of security clearance to gain access to the classified documents in the Pollard case. On January 10, 2001, Mr. Semmelman met with Mr. Macisso. He was told the same thing.

Since that time, we have been denied access to any classified documents. In part, that has been based upon the government's position, accepted by the court, that we have no "need to know" what is in the documents. We understand that "need to know" is not an issue either of you can address. However, the government has also taken the position that we lack the proper level of clearance.

Most recently, by letter dated May 7, 2001, Sheryl L. Walter, Acting Assistant Attorney General, wrote to Congressman Anthony D. Weiner, stating that "[t]he classified portions of the record in this case are classified up to and including Top Secret/Sensitive Compartmentalized Information (TS/SCI). . . . Although Mr. Pollard's attorneys apparently have Top Secret clearances, they lack clearances for the necessary compartments."

This position is inconsistent with the government's statement to the court, in a written submission filed May 17, 1990, that the principal classified document, a declaration of former Secretary of Defense Caspar Weinberger, is "classified Top Secret[.]" (United States' Opposition to Defendant's Motion for Access to Classified Materials, dated May 17, 1990, at p. 2) It is further inconsistent with the fact that, as far as we can tell, Mr. Pollard's original counsel, Richard Hibey, was given full access to the classified documents despite having just a "Top Secret" level of clearance.

We request that you ascertain the precise classification levels of each of the five documents in question. For your convenience, we enclose redacted copies of the documents, available in the public record. The documents are attached as Exhibits A through E to Defendant's Motion for Reconsideration and Modification of the Court's January 12, 2001 Order. That motion is presently pending before the court. The documents are:

  • Declaration of Secretary of Defense Caspar W. Weinberger, filed with the Court Security Officer on January 9, 1987. (Exhibit A.)
  • Defendant Jonathan J. Pollard's First Memorandum in Aid of Sentencing (undated). (Exhibit B.)
  • Defendant Jonathan J. Pollard's Second Memorandum in Aid of Sentencing, served February 27, 1987. (Exhibit C.)
  • Government's Reply to Defendant's Sentencing Memorandum, served March 3, 1987. (Exhibit D.)
  • Pages 1 and 57 of the minutes of sentencing dated March 4, 1987. (Exhibit E.)
In the event you determine that these documents, or portions thereof, are indeed classified at a level that is higher than Top Secret, we request that you take appropriate steps to grant us whatever clearance is required to allow us access to these documents. Of course, we will cooperate fully and provide any additional information that may be required.

Again, we understand that you cannot speak to the issue of our "need to know." We ask that you put that issue aside and focus solely on the classification level we would require, assuming we could show a "need to know."

Please feel free to call either of us with any questions. Mr. Lauer's number is (212) 696-XXXX. Mr. Semmelman's number is (212) 696-XXXX.

Very truly yours,
Eliot Lauer
Jacques Semmelman

Encl.
cc: Congressman Anthony D. Weiner (w/o encl.)


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