Legal Doc: Motion to Modify the January 12, 2001 Court Order


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v.
JONATHAN J. POLLARD,
Defendant

Criminal No. 86-0207 (NHJ)

DEFENDANT'S MOTION FOR MODIFICATION
OF THE COURT'S JANUARY 12, 2001 MEMORANDUM ORDER
BASED UPON THE GOVERNMENT'S AUGUST 3, 2001 LETTER

Defendant Jonathan J. Pollard, by his undersigned attorneys, moves for modification of the Court's January 12, 2001 Memorandum Order based upon the Government's August 3, 2001 letter submitted to the Court by the U.S. Department of Justice, signed by Michael P. Macisso, Court Security Officer (the "Macisso Letter").

A copy of the Macisso Letter is submitted herewith as Exhibit A.

Basis For This Motion

The Macisso Letter effectively admits, for the first time, that there is no danger to national security if defense attorneys Eliot Lauer and Jacques Semmelman are granted access to the classified portions of the Court's docket, including those portions the Government states are designated "SCI."

The Macisso Letter expressly admits that the Government's background investigation of Messrs. Lauer and Semmelman "will support SCI access[.]" (Macisso Letter at p. 1) (emphasis added).

The Macisso Letter goes on to explain that SCI access will be given if the Court finds, or if the Government agrees, that counsel has a "need to know." (Id.) Thus, there is no issue of "national security" separate and apart from "need to know," as the Government had successfully urged in opposition to the Defendant's Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order.

In opposition to that motion, the Government represented that, based upon concerns over national security, defense counsel's security clearance was inadequate to allow access to highly sensitive materials classified "SCI." The Government also argued, as if it were a separate and distinct issue, that counsel had not shown a "need to know" what was in the Court's docket. The Court accepted both arguments in its January 12, 2001 Memorandum Order.

The Macisso Letter now reveals that the Government's representation about "national security" concerns is false. The Macisso Letter admits that, based upon the Government's background investigation, defense counsel can get SCI clearance upon a showing of a "need to know." Thus, the Government's opposition to the Emergency Motion was based upon a false representation - that allowing Mr. Lauer access to these documents would pose a grave risk to national security. The resulting Memorandum Order accepted the Government's argument.

Now that the Macisso Letter effectively acknowledges that there is no risk to national security if defense counsel gains access to the documents, the Court should modify its Order to reflect that admission and to correct a finding based on a misrepresentation by the Government.

Timing Of This Motion

The Macisso Letter, addressed to counsel and copied to the Court, is dated August 3, 2001, and was received by mail at counsel's office on August 7, 2001 - the day the Court issued its Order denying the motion for reconsideration of the January 12, 2001 Order. As a result of the timing, defendant had no opportunity to call the Court's attention to the content of the Macisso Letter, or to present this Motion, before the Court issued its August 7, 2001 Order.

Relief Requested

This Motion requests that the Court modify its January 12, 2001 Order to reflect (a) that the Government's "national security" argument is simply its "need to know" argument in another form, and (b) that allowing defense counsel Eliot Lauer access to the documents would not pose a risk to national security, as the Government had led the Court to believe.

Because of the timing of the Macisso Letter and the Court's August 7, 2001 Order, this Motion also requests that it be treated and made part of the record as if it had been filed prior to the August 7, 2001 Order.

Finally, we respectfully request that the Court waive the requirement of the Local Rules that a memorandum of law be submitted herewith.

Background

On November 29, 2000, defense counsel filed an Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order. The motion sought access for defendant's security-cleared counsel, Eliot Lauer, to be given access to the classified portions of five documents (a total of approximately 35 to 40 pages) filed by both sides prior to defendant's sentencing on March 4, 1987.

The Government opposed the motion on what appeared to be two separate and distinct grounds. One ground was that Mr. Lauer had only been granted "top secret" security clearance, while the classified materials in the docket carried a higher and more sensitive designation - "SCI" (for "sensitive compartmented information"). The Government's unmistakable implication was that, as a matter of national security, Mr. Lauer's security clearance was inadequate to permit access to such sensitive information. The other ground asserted by the Government was that counsel had no "need to know" what was in his client's court file.

Thus, in its papers in opposition to the motion, filed December 8, 2000, the Government argued:

Defense counsel's present clearance is insufficient to review the classified declaration of Secretary Weinberger, which contains Sensitive Compartmented Information (SCI) concerning or derived from intelligence sources, methods, or analytical processes which must be handled within formal limited-access control systems established by the Director of Central Intelligence.

(Govt's Opposition to Defense Counsel's Request to Access Sealed Classified Docket Materials, at p. 7 n. 9) (emphasis added).

At oral argument before the Court held January 11, 2001, the Government escalated its effort to persuade the Court that Mr. Lauer lacked the qualifications to gain access to such high-level national security secrets:

What they [defense counsel] did is they went and got this clearance and thought that way, strategically, that would strengthen their argument when they came to the court today. The error they made was the material is classified higher than Top Secret. It is Special Compartmentalized [sic] Information. It is code word protected. And they don't have the code word clearance. . . . But the point I'm making is they don't today have the right clearances. The material in question, Secretary Weinberger's declaration, is code word protected. It is only kept in alarmed facilities, and it is extremely sensitive. The Government is here today simply trying to protect very classified information from needless disclosure.

(Transcript of Oral Argument, Jan. 11, 2001 at p. 21) (Emphasis added).

Later in the oral argument, the Government reiterated: "They don't have the right clearances." (Id. at p. 25) Government counsel's very last words to the Court were: "I'm only relying upon the court security officer who told me that it was code word secured. And that's why I wanted to raise it, because defense counsel didn't have the right clearances. Thank you, your Honor." (Id. at p. 36) (emphasis added).

The Government's tactic worked. By Memorandum Order dated January 12, 2001 (the "Order"), the Court denied the motion. In its opinion, the Court identified the Government's two separate arguments in opposition to the motion:

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.

(Order Jan. 12, 2001 at p. 2) (emphasis added).

The Order went on to analyze separately each of the Government's arguments. In the section of the Order devoted to the national security issue, the Court accepted the Government's argument regarding the danger to national security:

The government argues that the disclosure of the 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."

The Court has viewed the classified materials and finds that the exceptionally grave concern over national security is warranted.

(Order at pp. 2-3) (citations omitted) (emphasis added).

The Macisso Letter

On May 7, 2001, in response to a request for information made on March 14, 2001 by Congressman Anthony D. Weiner (Ex. B), Acting Assistant Attorney General Sheryl L. Walter wrote to Congressman Weiner stating, inter alia, 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." (Ex. C at p. 1)

In reaction to that letter, on May 15, 2001, defense counsel Eliot Lauer and Jacques Semmelman wrote to the Court Security Officers, Michael Macisso and Christine Gunning, enclosing Ms. Walter's letter to Congressman Weiner. (Ex. D) In their letter to the Court Security Officers, defense counsel made the following request:

In the event you determine that these documents [i.e., the five court 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."

(Ex. D at p. 2)

On August 3, 2001, Mr. Macisso responded to the May 15, 2001 letter. (Ex. A) In his letter, addressed to Mr. Lauer with a copy to the Court, Mr. Macisso stated:

Even though your background investigations will support SCI access, there are other criteria which must be met, including an SCI indoctrination briefing and a "need to know" determination from the Court or the government. . . . Absent a "need to know" ruling from the Court or the government, the Department of Justice will not be able to upgrade your clearance level or provide you access to this material.

(Ex. A) (emphasis added).

The Macisso Letter thus effectively acknowledges that there is no concern about national security that arises out of counsel's access to the documents. The Government now admits that the investigation of Mr. Lauer "will support SCI access" (Ex. A) and that there is no justification for the Government's earlier statements to the Court that "disclosure of the classified materials to Mr. Lauer poses a risk to national security." (Order at p. 2.)

Conclusion

The Government overreached in its zealousness to prevent counsel from obtaining access to the documents. The Government could have relied entirely on its "need to know" argument. Instead, it manufactured what appeared to be a separate and distinct argument - putative concern over national security, based upon counsel's lack of appropriate security clearance. By virtue of the Macisso Letter, we now know (a) that there is no concern over national security based upon lack of appropriate security clearance because the Government concedes that, based upon the background investigation, Mr. Lauer can receive SCI clearance upon showing a "need to know"; and (b) that the Government only has one argument, not two, for denying access: the purported lack of a "need to know." The Court should modify its Order accordingly.

***

The Court based its denial of defense counsel's motion on two separate grounds. First, the Court found that there was a grave risk to national security if defense counsel were given access to the classified materials. Indeed, the Court's opinion reflects that the Court was sufficiently concerned with the national security issue that it examined the 35 to 40 pages and concluded that disclosure of the documents would present a "grave risk to national security." (Order at p. 3.)

Separately, the Court held that defense counsel failed to establish a "need to know." It is of course impossible to determine the extent to which, if any, the Court's concern over national security - based on the Government's now discredited representations - influenced the Court's determination on counsel's need to know. While we cannot address this issue, most respectfully, in light of the Macisso Letter negating any national security issue as it relates to Mr. Lauer's access, the Court sua sponte may wish to review its finding in this matter.

Dated:August 16, 2001

Respectfully submitted,

CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP

_____________________________________
Eliot Lauer (D.C. Bar No. 203786)
Jacques Semmelman (Admitted pro hac vice)

1801 K Street, N.W.
Suite 1205L
Washington, D.C. 20006
(202) 452-7373
-and-
101 Park Avenue
New York, New York 10178-0061
(212) 696-6000

Attorneys for Jonathan Jay Pollard


AFFIDAVIT

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v.
JONATHAN J. POLLARD,
Defendant

Criminal No. 86-0207 (NHJ)

STATE OF NEW YORK
ss.:
COUNTY OF NEW YORK

JACQUES SEMMELMAN. being duly sworn, deposes and says:

  1. I am a member of Curtis, Mallet-Prevost, Colt & Mosle LLP. My partner Eliot Lauer and I represent Jonathan J. Pollard. I am admitted in this case pro hac vice.
  2. I submit this affidavit in support of the Defendant's Motion for Modification Of The Court's January 12, 2001 Memorandum Order Based Upon The Government's August 3, 2001 Letter.
  3. Annexed hereto as Exhibit A is a copy of a letter dated August 3, 2001 from Court Security Officer Michael Macisso to Eliot Lauer, with a copy to Chief Judge Norma Holloway Johnson (the "Macisso Letter"). The Macisso Letter arrived by mail at the offices of Curtis, Mallet-Prevost, Colt & Mosle LLP on August 7, 2001.
  4. The Macisso Letter was the result of a series of letters between the Department of Justice, on the one hand, and Congressman Anthony D. Weiner and counsel for Jonathan Pollard, on the other hand.
  5. So that the Court has before it the sequence of letters which led up to the Macisso Letter, the prior letters are annexed hereto as follows:
    • Annexed hereto as Exhibit B is a copy of a letter dated March 14, 2001 from Congressman Anthony D. Weiner to United States Attorney Wilma Lewis.
    • Annexed hereto as Exhibit C is a copy of a letter dated May 7, 2001 (with enclosures) from Acting Assistant Attorney General Sheryl L. Walter to Congressman Weiner, written in response to Congressman Weiner's March 14, 2001 letter to U.S. Attorney Lewis.
    • 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.
    • Annexed hereto as Exhibit E is a copy of a letter dated June 11, 2001 from Congressman Weiner to Acting Assistant Attorney General Walter, responding to the May 7, 2001 letter.
  6. The Macisso Letter (Ex. A) responded to the May 15, 2001 letter from Messrs. Lauer and Semmelman (Ex. D).

_____________________
Jacques Semmelman

Sworn to before me this 15th day of August, 2001.

_____________________
Notary Public


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA
v.
JONATHAN J. POLLARD,
Defendant

Criminal No. 86-0207 (NHJ)

ORDER

Upon consideration of Defendant's Motion for Modification Of The Court's January 12, 2001 Memorandum Order Based Upon The Government's August 3, 2001 Letter, it is by the Court this ____ day of ____________, 2001,

ORDERED, that the Motion is granted; and it is further

ORDERED, that the Court's January 12, 2001 Memorandum Order is hereby modified to reflect (a) that the Government's "national security" argument is simply its "need to know" argument in another form, and (b) that allowing defense counsel Eliot Lauer access to the classified portions of the Court's docket would not pose a risk to national security; and it is further

ORDERED, that because defense counsel only received the Government's August 3, 2001 Letter on August 7, 2001, the Motion is treated and made part of the record as if it had been filed before August 7, 2001; and it is further

ORDERED, that the requirement in the Local Rules of filing a memorandum of law is hereby waived.

Dated:________________, 2001

_____________________________________
CHIEF UNITED STATES DISTRICT JUDGE
DISTRICT OF COLUMBIA


CERTIFICATE OF SERVICE

CATHERINE LEONARD certifies as follows under penalty of perjury:

On August ___, 2001, I caused to be served by hand delivery a true copy of the foregoing Defendant's Motion for Modification Of The Court's January 12, 2001 Memorandum Order Based Upon The Government's August 3, 2001 Letter on:

Ronald Walutes, Esq.
Office of the United States Attorney
Transnational/Major Crimes Section
555 Fourth Street, N.W.
Washington, D.C. 20001

_________________________
Catherine Leonard


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