Legal Doc: Government's Response to Pollard's Second Motion
Filed May 9, 2002
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
JONATHAN J. POLLARD,
Criminal No. 86-0207 (TFH)
GOVERNMENT'S OPPOSITION TO DEFENDANT'S
SECOND MOTION FOR RECONSIDERATION OR MODIFICATION OF
THE COURT'S JANUARY 12, 2001 ORDER
The United States of America, by an through its attorney, the United States Attorney for the District of Columbia, respectfully files this opposition to the defendant's second motion to reconsider the Court's January 12, 2001 Memorandum Order denying access to classified information to his new counsel.
In March 1987, defendant was sentenced to life imprisonment by Chief Judge Aubrey Robinson, Jr. Following his guilty plea to conspiracy to commit espionage in violation of 18 U.S.C. (?)794(c). Defendant did not appeal that conviction or sentence, and that conviction and sentence have long been final.
On November 29, 2000, defendant Pollard, repeating a request he had made and which had been rejected by the Court in 1990, sought to obtain for his new counsel access to classified materials filed in this matter. On January 12, 2001, the Court denied defendant Pollard's motion for his new counsel to obtain such access to classified information in connection with a request for executive clemency then being pursued by his counsel. Defendant Pollard filed on January 19, 2001 a motion to reconsider and modify that January 12 Order. On August 7, 2001, the Court, noting that the defendant had offered no new justification for his motion, denied defendant's motion for reconsideration. On August 16, 2001, defendant Pollard once again filed a motion to reconsider the Court's January 12, 2001 opinion and order.
In short, defendant Pollard's motion if factually and legally baseless. Just as Chief Judge Robinson found in September 1990 in the context of defendant's first collateral attack upon his conviction and sentence under 28 U.S.C. (?) 2255 and just as Chief Judge Norma Holloway Johnson found in January 2001 and August 2001, defendant Pollard and his new counsel have shown insufficient need to gain access to the classified information filed in this matter pursuant to the Court's October 1986 Protective Order. Accordingly, the United States respectfully submits that defendant's August 16, 2001 motion should be denied for the reasons noted below and in prior filings by the United States as well as for the reasons set forth in the January 12, 2001 order and opinion of Chief Judge Norma Holloway Johnson and in the September 1990 order and opinion of Chief Judge Aubrey Robinson. United States v. Pollard. 747 F. Supp. 797, 806-07 (D.D.C. 1990).
Introduction and Background
Without detailing the lengthy history of this criminal prosecution, we offer the following to provide a brief background concerning defendant Pollard's repeated attempts to litigate this long closed matter.
A. 1986 Guilty Plea, 1987 Sentencing, and 1990 Motion for Access to Classified Materials.
From approximately June 1984 through November 1985, defendant Jonathan Pollard, then an Intelligence Research Specialist within the Anti-Terrorist Alert Center within the United States Navy, "removed large amounts of highly classified U.S. intelligence information from his office, copied it, and delivered it to agents of the Israeli government." United States v. Pollard. 959 F.2d 1011, 1015 (D.C. Cir.), cert. Denied, 506 U.S.915 (1992). On November 21, 1985, defendant Pollard was arrested for his crimes. More than six months later, on June 4, 1986, defendant pled guilty to one count of conspiracy to commit espionage in violation of 18 U.S.C. (?) 794(c). Nearly nine months after defendant pled guilty and after extensive briefing and argument to the Court, the Honorable Aubrey E. Robinson, Jr. Sentenced defendant in March 1987 to a term of life imprisonment. In connection with that sentencing, defendant and his lawyers (Messr. Richard Hibey and Gordon Coffee) had a full opportunity to review and contest the classified materials presented to the Court for sentencing. See United States v. Pollard, supra, 747 F. Supp. at 803. Defendant Pollard did not appeal his conviction and sentence. Defendant Pollard later filed with the Court a Rule 35 motion to reduce his sentence which was denied.
Nearly four years after pleading guilty, defendant Pollard, through new counsel, filed on March 12, 1990 a motion to obtain access to classified materials used at the 1987 sentencing along with a "habeas corpus" motion under 28 U.S.C. (?) 2255 seeking to withdraw his guilty plea. Defendant argued that new counsel needed to review the classified materials in connection with his efforts to withdraw his guilty plea pursuant to Section 2255. Among those classified items were classified portions of a declaration submitted by then Secretary of Defense Casper Weinberger and a sentencing memorandum submitted by the United States. As part of his new counsel's argument for access to the classified excerpts, defendant argued to the Court that his new counsel had "obtained the requisite security clearances" and, thus, there were safeguards in place to allow him access to the classified materials. 3/12/1990 Defendant's Memorandum in Support of motion for Counsel's Access to Materials Presented at Sentencing at p.l. in response, the United States argued to the Court that the defendant had made an insufficient showing of need to access the classified materials. See 5/17/90 Government's Memorandum in Opposition to Defendant's Motion for Access to Classified Materials (attached as Exhibit 1).
In September 1990, Chief Judge Robinson considered and denied defendant's motion to allow his new counsel access to the classified excerpts in connection with his Section 2255 motion and effort to withdraw his guilty plea. United States v. Pollard, supra, 747 F. Supp. At 806-07. Chief Judge Robinson wrote:
"Defendant had a full opportunity to review the Weinberger Declaration, unredacted, prior to sentencing. He challenged its reliability and its veracity in a very general way, but offered nothing specific to contradict it, though the Court noted and counsel agreed that defendant himself was quite able to assess the technical aspects of the Declaration. Defendant merely claimed the document was 'speculative', 'seriously flawed' and exaggerated." Id. At 803.
"As pointed out [above], defendant's claims of exaggeration and inaccuracy in the unclassified portion of the Weinberger Declaration simply do not withstand scrutiny....
....Moreover, defendant's claim to other classified sentencing material relies completely on perceived exaggeration and inaccuracy in the weinberger Declaration. This perception is totally unfounded and defendant has made no showing to justify access to these sensitive documents.
[Accordingly], Defendant's Motion for Access to materials Presented at Sentencing will be denied." Id. At 807.
After his Section 2255 motion and motion for additional access to the classified excerpts were denied, defendant Pollard appealed Chief Judge Robinson's rulings. After extensive briefing and argument, the Court of Appeals affirmed those rulings. United States v. Pollard, 959 F.2d 1011 (D.C. Cir.), cert. denied, 506 U.S. 915 (1992). With regard to defendant's motion for additional access to the classified materials, the Court of Appeals handled the matter with a single footnote at the end of a lengthy opinion. The Court of Appeals stated: "Assuming arguendo that the district judge's refusal to direct the United States Attorney to provide Pollard's new counsel with access to the Weinberger classified submission was erroneous, our examination of the material satisfied us that the error was harmless." Id, 959 F.2d at 1031 n.15.
B. November 2000 Motion for Access to Classified Materials and January 12, 2001 Opinion and Order Denying Access
On November 29, 2000, more than eight years after the Court of Appeals affirmed Chief Judge Robinson's rulings in the Section 2255 litigation, defendant Pollard filed a motion under the caption of this criminal prosecution entitled "Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket materials Pursuant to Protective Order."
Defendant Pollard asked the Court to allow another new counsel access to classified materials filed in the criminal prosecution "in order to represent [him] effectively" as part of "contemplated applications for executive clemency and/or commutation of sentence" to former President Clinton. 11/12/00 Emergency motion at 2. In light of Chief Judge Robinson's ruling in September 1990 that the defense had made an insufficient showing of need in the context of Section 2255 litigation, it was not surprising that defendant Pollard disclaimed any intent to seek access for his new counsel as part of a Section 2255 motion which he had recently filed in September 2000. Defendant stated to the Court:
"This motion does not seek information or evidence to be used in connection with the pending (?) 2255 motion. In light of the impending change in administration, it is imperative that counsel have access to the sealed materials in sufficient time to make a presentation to the outgoing President."
11/29/00 Emergency Motion at 2 (emphasis and italics in original).
In its opposition, the United States again did not question the integrity or trustworthiness of defense counsel and, as it had in 1990, argued that defendant had made an insufficient showing of need for the materials:
"We do not question present counsel's integrity, just as we did not question the integrity of defendant's previous counsel who were retained post-sentencing and made the same request of late Chief Judge Robinson. However, any addition to the limited number of individuals allowed to view 'Top Secret" materials increases the risk of disclosure to unauthorized persons--and thus of 'exceptionally grave danger' to the national security." 12/8/00 Government's Opposition to Emergency motion at 3.
"Defense counsel were denied access to the classified materials for use during their previous Section 2255 appeal in this case. Where counsel are not entitled to access within the context of judicial proceedings, it is difficult, if not impossible, to imagine how defense counsel are entitled to access to classified material for use in a possible contemplated future application for executive clemency, including commutation of sentence. In the latter instance, there is no right to discovery in a clemency proceeding nor can a court impose a requirement of disclosure or oversee how clemency proceedings are conducted. Id. At 5-6 (citations omitted).
On January 12, 2001, after submission of the parties' briefs and oral argument, Chief Judge Norma Holloway Johnson denied defendant's motion finding that new defense counsel had not demonstrated a "need to know" the contents of the classified materials filed in this criminal prosecution more than 13 years ago. The Court found that new defense counsel (Eliot Lauer) had met the three initial requirements for access established by the October 1986 Protective Order--namely, (1) obtaining a security clearance, (2) signing a nondisclosure agreement, and (3) signing a memorandum of understanding set forth in the Protective Order. 1/12/01 Memorandum Order at 2 (attached as Exhibit 2). The final step, obtaining permission from the Court to review the materials, was the issue before the Court. "Despite the fact that Mr. Lauer has obtained security clearances and signed the appropriate nondisclosure agreements" and that Mr. Lauer claimed that he had 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," the Court found "that Mr. Lauer has not demonstrated a 'need to know' the contents of the classified materials." Id. At 3.
C. Defendant's January 19, 2001 and August 16, 2001 Motions to Reconsider the Court's Denials of his Motion for Access to Classified Materials.
On January 19, 2001, without citing any new factual or legal bases, defendant filed a motion to reconsider the Court's January 12, 2001 order denying his motion for access to the classified materials, which he entitled "Motion for Reconsideration and Modification of the Court's January 12, 2001 Order." On August 7, 2001, Judge Johnson denied defendant's motion stating that the "Defendants offers no new justification for his request of reconsideration. Therefore, for the same reasons provided in the January 12, 2001 Order, this Court finds that it must deny the motion for reconsideration of defendant." 8,7,2001 Order (which is attached as Exhibit 3).
Then, on August 16, 2001, defendant filed yet another motion to reconsider the January 12, 2001 Order of the Court. Obviously wishing to avoid the reality that he was asking the Court to reconsider his motion to reconsider, defendant entitled his August 16 motion as a "Motion for Modification of the Court's January 12, 2001 Memorandum Order Based upon the Government's August 3, 2001 Letter." Once again, defendant's motion to reconsider cited no new factual or legal bases.
Instead, the motion erroneously suggested that an August 3 letter by the "Government", suggesting the U.S. Attorney's Office or another prosecuting official, had stated that there was no longer any danger to national security if new defense counsel were granted access to the classified materials filed in this criminal prosecution. In reality, there was no letter by the "Government" suggesting such a conclusion. In fact, the Court Security Officer, a position designated by the Court pursuant to October 1986 Protective Order (see Paragraph 9 of the 8/24/86 Protective Order, which is attached as Exhibit 4) and acting as a liaison on behalf of the Court, had simply responded to an inquiry from defense counsel regarding the status of their security clearances.
In his August 3 letter, the Court Security Officer simply repeated the prior January 12, 2001 ruling from the Court. The Court Security Officer informed defense counsel that despite the fact that they could obtain the requisite security clearances "Chief Judge Norma Holloway Johnson's Memorandum Order ...states that you have 'not demonstrated a "need to know" the contents of the classified materials.' 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 [to the SCI level] or provide access to this material." 8/3/01 Letter by Michael P. Macisso, Court Security Officer (which is attached as Exhibit 5).
One day after filing his motion to reconsider on August 16, 2001 with this Court, defendant filed a notice of appeal on August 17 with the Court of Appeals seeking to appeal the January 12, 2001 and August 7, 2001 order of the Court denying his new counsel access to classified materials. On October 17, 2001, the Court of Appeals ordered that the appeal be held in abeyance pending this Court's disposition of defendant's August 16, 2001 motion along with the Court's disposition of defendant's October 5, 2001 motion to reconsider the denial of his second Section 2255 motion.1
The defendant's instant motion for reconsideration and modification of the Court's January 12, 2001 Memorandum Order is without legal authority and the defendant does not offer any new justification for the Court's reconsideration. The defense has consistently failed to establish a "need to know" in this matter justifying access to the classified record. The defendant's August 16, 2001 motion is no different. In short, defendant asks this Court to reverse the original order issued by then Chief Judge Norma Holloway Johnson on January 12, 2001 without providing any valid reasons to justify a reversal of the Court's findings. In fact, given that there is not even a pending application for executive clemency, which there apparently was in December 2000/January 2001, the reasons supporting the conclusion in the January 2001 Order that defendant had made an insufficient showing of need for access are even stronger than in January 2001.
In his second motion for reconsideration, Pollard asserts that the August 3, 2001 letter by Michael P. Macisso, Court Security Officer (the "Macisso Letter"), somehow impacts upon the Court's ruling in this matter. The defendant goes to elaborate lengths to suggest that the Macisso Letter establishes "That there is no concern about national security that arises out of counsel's access to the documents." Def. Motion at 7. The Macisso Letter makes no such representation and on its face does not state that there is no danger to national security" if defense counsel view the classified materials at issue. Def. Motion at 2. The Court Security Officers would be in no position to render such an opinion and the defendant misunderstands their role as a liaison between the Court, counsel and the various classifying authorities in each case.
The Court Security Officer's letter attempts to address, and correct, defense counsel's inaccurate assertions and representations to the Court that they held all necessary clearances to view the classified materials in this case. The letter notes that the defendant's attorneys have Top Secret security clearances, further noting that the background investigation would support the further Sensitive Compartmented Information (SCI) access. This does not purport to suggest that counsel may view the classified documents in question or that there would be no danger to national security if access were granted. In fact, the Macisso Letter states that "you were never advised that you possessed the appropriate level of clearance to gain access to the classified documents in the Pollard case." The Macisso Letter nowhere implies that there is no danger or concern to national security. In fact, the Macisso Letter does not even mention national security.
The defendant's fundamental misunderstanding resulting in the litigation before the Court is that obtaining Top Secret clearances -- to facilitate communications between counsel and client -- does not thereby bestow upon counsel the right to access sealed classified materials in this case. To view the sealed classified materials, a party, irrespective of their clearance level, must demonstrate a "need to know." The Court has reviewed the request of counsel and the specific documents at issue and determined in the January 12, 2001 Memorandum Order that if the classified portions of the Pollard case were disclosed it "would pose a grave risk to national security." 1/12/01 Order at 3. Authorizing additional individuals to view the classified materials increases the risk of disclosure to unauthorized persons and thus causes a real risk to national security. Therefore, despite the security clearances held by defendant's new counsel or his prior counsel in 1990, new counsel should not be permitted to view the sealed classified materials at issue as part of their potential effort to pursue executive clemency., In other words, regardless whether the new lawyers have Top Secret clearances that will support SCI, they still have not demonstrated that their viewing of the classified portions of the documents are "essential to the accomplishment of lawful and authorized Government purposes." Executive Order Number 12356 (?) 4.1(a). There are numerous individuals with Top Secret and SCI clearances who are barred from viewing the classified documents in this case because they cannot show a legitimate purpose for viewing those documents. Defendant's new lawyers are no exception.
Present counsel has offered no compelling reason for breaching the secrecy of the classified materials in this case. Their hypothetical possibilities still fall far short of the "need to know' threshold that is necessary to view the classified documents. In January 2001 and again in August 2001, the Court examined the present counsel's purported "need to know" arguments and properly denied their request. Nothing has changed. The defendant's attorneys still have no legitimate right to the classified materials filed with the Court based upon the speculative change that their client might pursue executive clemency in the future.
This is not a second trial, and the defendant has no right to classified discoverable materials "on a mere showing of theoretical relevance in the face of the government's classified information privilege." United States v. Yunis, 867 F.2d. 617, 623 (D.C. Cir. 1989). The defendant has been convicted and sentenced and this criminal prosecution is closed. Accordingly, he is not entitled to disclosure of the classified materials in this case based upon some speculative possibility that he might choose to pursue executive clemency at some future date.
Contrary to the defendant's position that the Court based its January 12, 2001 ruling on the government's contention that defense counsel lacked the appropriate clearances, specifically SCI clearance, the Court did not rely upon, or even address he issue of SCI in its order. The defense states, "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." Def. Motion at 5. The defendants insists that the Court denied the defendant's request to view the classified materials based upon the government's argument that his lawyer does not have proper SCI clearance. The Court, however, did not mention the SCI clearance as a factor in its decision and did not mention SCI at all. To the contrary, as noted above, the Court found that defendant's new lawyer had the appropriate security clearances and had fulfilled the other initial requirements of the October 1986 protective Order by signing nondisclosure agreements.
Defendant is simply utilizing the August 3 letter of the Court Security Officer to take another bite at the apple after the Court denied his motion to reconsider on August 7, 2001. Just as the Court found in August 2001 that defendant's January 19 motion for reconsideration and modification of the January 12, 2001 Order "offer[ed] no new justification for this request for reconsideration, "there is nothing new at this time to reconsider the January 12, 2001 or August 7, 2001 rulings of the Court.
The Court's reasoning for its decision to deny the defendant's new counsel access to the classified materials in this case remains the same as outlined in the January 2001 ruling:
"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." Order at 3-4.
The President has changed, the basis for the Court's ruling rejecting the defendant's request has not. In fact, the reasoning has only strengthened.
At the time of the briefing and argument leading up to the January 2001 opinion and order by the Court, defendant apparently had submitted papers seeking executive clemency from former President Clinton. Currently, no application for executive clemency is pending. Accordingly, whatever "need" existed in December 2000/January 2001 for access to the classified materials in this case, the current level on "need" is even below the level of need shown previously. In short, Mr. Pollard has not shown sufficient need for his new lawyers, who may seek at some future date executive clemency on his behalf, to obtain access to classified materials relating to this matter.
WHEREFORE, the government respectfully submits that defendant's August 16, 2001 motion to reconsider or modify the Court's prior rulings and orders of January 12, 2001 and August 7, 2001 denying access to classified materials should be denied.
ROSCOE C. HOWARD, JR.
UNITED STATES ATTORNEY
D.C. BAR NO. 246470
By ___ signed_______________________________
Steven W. Pelak
Assistant United States Attorney
Transnational/Major Crimes Section
555 4th. Street, N.W.
Washington, D.C. 20530
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that copies of the foregoing Opposition (without exhibits) were delivered via facsimile, (212) 697-1559, and the foregoing Opposition with exhibits were delivered by mail, postage prepaid, to counsel for Jonathan Pollard, Eliot Lauer and Jacques Semmelman, 101 Park Avenue, New York, New York 10178-0061, this 9th. Day of April 2002.
Steven W. Pelak.
Assistant United States Attorney