Attorneys Appeal to Attorney General Ashcroft for Secret Docs

Justice4JP Release - July 10, 2001


July 5, 2001

Hon. John Ashcroft
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001

Re: United States v. Jonathan J. Pollard,
U.S. Dist. Ct., District of Columbia,
No. 86 Cr. 0207 (NHJ)

Dear Mr. Attorney General:

This law firm represents Jonathan Pollard.

On June 6, 2001, you testified at a hearing before the House Judiciary Committee. Congressman Anthony D. Weiner of New York brought up the case of Jonathan Pollard, and asked you if there is any reason why the Congressman should not be afforded access to the government's principal sentencing memorandum submitted in 1987 by then-Secretary of Defense Caspar Weinberger. Congressman Weiner also told you that Mr. Pollard's new attorneys (the undersigned) were being denied access to the memorandum by the Department of Justice. Congressman Weiner asked you if you would agree to afford us access. You told Congressman Weiner that you would look into the matter.

We are writing to provide a more comprehensive statement of the facts.

In 1985 Mr. Pollard was arrested on charges of delivering classified information to the State of Israel. In 1986 Mr. Pollard entered into a plea agreement, as part of which Mr. Pollard pled guilty to a single count, conspiracy to commit espionage, in violation of 18 U.S.C. § 794(c). Mr. Pollard was not charged with intending to harm the United States. As part of the plea agreement, the U.S. government agreed not to seek a sentence of life in prison (the maximum sentence under the statute). On March 4, 1987, Mr. Pollard was sentenced to life in prison. The circumstances surrounding Mr. Pollard's sentencing were replete with government misconduct that went unchecked by an ineffective defense counsel.

As part of the pre-sentencing process, the government and the defense each submitted several memoranda to the court. One of these was a 46-page Declaration submitted by Mr. Weinberger (the "Weinberger Declaration"). On January 9, 1987, the Weinberger Declaration was presented to the Court Security Officer, who determined that certain words, sentences, and sections contained classified information. As a result, while Mr. Pollard and his then-attorney Richard Hibey were provided access to the Weinberger Declaration, the document was only made available to the public in redacted form. Approximately 15 to 20 pages of the Weinberger Declaration have been redacted. We have obtained a copy of the redacted version.

In addition to the Weinberger Declaration, four other documents in the court record were redacted on the ground that each contained classified information. The other four documents are:

  • Defendant Jonathan J. Pollard's First Memorandum in Aid of Sentencing (undated).
  • Defendant Jonathan J. Pollard's Second Memorandum in Aid of Sentencing, served February 27, 1987.
  • Government's Reply to Defendant's Sentencing Memorandum, served March 3, 1987.
  • Minutes of sentencing dated March 4, 1987, at p. 57.
For your convenience, we enclose a set of the redacted versions of each of these five documents.

Since November 2000, we have been seeking to read the full unredacted versions of the Weinberger Declaration and the other four documents. Our purpose was to obtain access in connection with a clemency application filed with President Clinton. We wrote to U.S. Attorney Wilma Lewis, as did Congressman Weiner. Ms. Lewis refused to allow access to the documents. In December 2000, we filed a motion in the U.S. district court in Washington, seeking access. The government opposed that motion, and it was denied. We have filed a motion for reconsideration, which is pending.

As Mr. Pollard's attorneys, we continue to require access to the documents so that we can effectively represent our client. This would include making a meaningful and effective clemency application to President Bush. Because Mr. Pollard's case is so well-known, and because so many people in the government have spoken, on or off-the-record, to journalists, it becomes difficult to separate fact from rumor. As Mr. Pollard's attorneys, we should be entitled to read the record first-hand. Our "need to know" is part and parcel of our responsibility as counsel to learn the facts and rebut incorrect statements, whether in the context of a clemency application or otherwise.

We have each been accorded "Top Secret" security clearance by the Department of Justice in connection with our representation of Mr. Pollard. In the interests of fairness and justice, we should be afforded access to the same documents that were shown to Mr. Pollard himself and his then-attorney in 1987. Congressman Weiner should be provided access as well.

We wish to make clear that we are not seeking to remove copies of the classified documents from a secure location. We are prepared to go to the government's secure facility and read the documents there without making any copies.

We look forward to your prompt response, and would welcome the opportunity to meet with you to discuss this further.

Respectfully,

Eliot Lauer

Jacques Semmelman

Encl.

cc: Hon. Anthony D. Weiner, Member of Congress


See Also:
  • Legal Doc: Transcript Of Court Hearing in Secret Documents Case
  • Legal Doc: Motion to Unseal the Pollard Record
  • Legal Doc: ACLU Amicus Brief
  • The Court Case Page 2000/01
  • The Clemency Page
  • Rep. Weiner on the Secret Documents