Motion to Modify Court Order & Notice of Appeal Filed

Justice4JP Legal Update - For Immediate Release - August 24, 2001

JONATHAN POLLARD'S ATTORNEYS FILE MOTION FOR MODIFICATION OF
COURT'S JANUARY 12, 2001 ORDER DENYING SECURITY-CLEARED COUNSEL
ACCESS TO CLASSIFIED DOCUMENTS

On August 16, 2001, Jonathan Pollard's attorneys Eliot Lauer and Jacques Semmelman of Curtis, Mallet-Prevost, Colt & Mosle LLP filed a Motion for Modification of the Court's January 12, 2001 Memorandum Order. That Order denied security-cleared counsel's motion for access to the classified portions of the court's docket.

The documents at issue consist of approximately 35 to 40 pages of material in five documents submitted by both sides prior to Mr. Pollard's March 4, 1987 sentencing. One of the documents is a Declaration of then-Secretary of Defense Caspar Weinberger. Redacted versions of each of the five documents are publicly available. The redactions are said to contain classified information. Counsel seeks access to the redacted portions so as to effectively represent their client.

The basis for the newly-filed Motion for Modification is a letter to Mr. Lauer from Court Security Officer Michael Macisso, dated August 3, 2001, in which the Court Security Officer effectively acknowledged that, contrary to the Government's prior representations to the court, there would be no danger to national security if Messrs. Lauer and Semmelman were permitted access to the classified documents in the court's docket. The letter is the result of several months of correspondence between Mr. Pollard's attorneys and Congressman Anthony Weiner (D-N.Y.) on the one hand, and the U.S. Department of Justice on the other hand.

The Court Security Officer is an official of the Department of Justice who is appointed by the court to administer such matters as the handling and safeguarding of classified documents in the court's docket. The Court Security Officer's August 3, 2001 letter acknowledges for the first time that the Government's background investigation into Messrs. Lauer and Semmelman for purposes of granting them security clearance "will support SCI access" upon a showing that they have a "need to know" what is in their client's court docket.

The significance is that the Department of Justice had granted Messrs. Lauer and Semmelman "Top Secret" security clearance in connection with their representation of Jonathan Pollard. In November 2000, when they sought access to the 35 to 40 pages of classified court records, the Government vigorously opposed that application on what the Government represented to the court were two separate grounds: (1) the documents at issue were classified "SCI" (for Sensitive Compartmented Information), a higher level of clearance than "Top Secret"; the Government told the court that allowing counsel access to SCI information would pose a risk to national security; (2) the attorneys had no "need to know" what is in their client's court records.

In an Order issued January 12, 2001, United States District Judge Norma Holloway Johnson accepted the Government's arguments, and denied access on both grounds.

Counsel immediately filed a Motion for Reconsideration. On August 7, 2001, Judge Johnson denied that motion. That very day, counsel received in the mail the August 3, 2001 letter from the Court Security Officer.

The Court Security Officer's letter repudiates the Government's argument that these attorneys fundamentally lack the clearance needed to access such highly sensitive documents. By acknowledging that the Government's background investigation "will support SCI access" for Messrs. Lauer and Semmelman, the Court Security Officer has effectively acknowledged that there is no national security concern if Messrs. Lauer and Semmelman are afforded access to the classified court documents.

The newly-filed Motion for Modification asks the court to modify its January 12, 2001 Order based upon the admission by the Court Security Officer that national security is not a concern. That would leave only counsel's "need to know" as an issue for a higher court to decide.

Messrs. Lauer and Semmelman have also filed a Notice of Appeal from the January 12, 2001 Order and the August 7, 2001 Order which denied their Motion for Reconsideration.

The legal documents: Notice of Appeal, and Motion to Modify the Court Order and all attachments are available on the Court Case 2000/01 Page and on the Legal Texts page of the Justice for Jonathan Pollard web site.

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