U.S. Has Burden to Show Need to Protect Secrets From Ex-Spy

Mark Hamblett - New York Law Journal - June 8, 2016

The U.S. government will have to show its need to protect classified information justifies extensive post-release supervision of Jonathan Pollard, the former naval intelligence analyst who served 30 years behind bars for spying for Israel.

Southern District Judge Katherine Forrest has ordered the government to produce for her in camera inspection material officials believe will be in peril before she decides whether Pollard's lawyers have a "need to know" the information as they argue that two restrictions imposed on their client should be removed.

Pollard in 1984 and 1985 passed suitcases of material, including intelligence publications and satellite photos on such sensitive topics as Soviet and Arab states' military capability, to the Israeli government for photocopying.

Pursuant to a written plea agreement, Pollard pleaded guilty in 1986 to a single count of conspiracy to deliver national defense information to a foreign government and, in 1987 he was sentenced to life in prison.

Pollard became a cause celebre in Israel and Israeli officials spent years pressuring the United States to commute his sentence, without success.

Pollard, 62, was paroled in 2015, and, the day he walked out of prison on Nov. 20, he filed Pollard v. U.S. Parole Commission, 15-cv-9131, a habeas petition challenging two conditions imposed by the commission.

The first is that he be subjected to Global Positioning Systems (GPS) monitoring and a 7:00 p.m. to 7:00 a.m. curfew restriction by the U.S. Probation Service. The second is that his probation officer can make unannounced examinations of his computer and computer devices. The officer can make copies of the stored material or seize the devices themselves for a more thorough inspection-a power that Pollard argues is problematic for any future employer.

At oral argument in December, Forrest ruled from the bench saying the U.S. Parole Commission's reasons were "insufficient to support the nature and breadth of the restrictions," and she remanded to the commission.

But the Parole Commission upheld the restrictions in March, noting that Pollard "compromised information that remains classified at the top secret and secret levels and future unauthorized disclosure of the information could risk harm to the national security of the United States."

Forrest issued an order reopening the case on April 12.

While Pollard cited statements by former U.S. National Security Advisor Robert McFarlane and former Senate Intelligence Committee member Dennis DeConcini that the information he possessed was stale, the government cited current Director of National Intelligence James Clapper as insisting that the information remains properly classified.

Part of the dispute is over the Parole Commission's insistence that the GPS monitoring/curfew restrictions are necessary because of Pollard's professed desire to live in Israel, with the Parole Commission stating in papers that "GPS monitoring will allow for location tracking to determine if there is further deception and/or unauthorized travel."

As to the computer monitoring provision, the Parole Commission stated to Pollard that, "As a practical matter, the boundaries between personal and business computer use are blurred" and the condition will help the United States' probation office "with ensuring you are complying with your ongoing obligation under the plea agreement."

Attacking the restrictions, Pollard's legal team, led by Eliot Lauer of Curtis, Mallet-Prevost, Colt & Mosle, argues in papers filed with the judge that, "It is undisputed that Mr. Pollard does not have any classified documents in his possession, and the only information he could possibly disclose is anything he might have retained in his head from over 30 years ago."

For Forrest, the issue was how much process Pollard is due in challenging the restrictions, and she instructed the government to "disclose to Pollard's attorneys the 'gist or substance' of its submission ... at a high level of generality."

Forrest then dealt with Executive Order 13526 - which governs how national security information is classified and who can see it-and the government's argument that Pollard's lawyers do not have the appropriate "need-to-know."

The judge decided that she needed to undertake a "limited but careful review" of the government's ex parte filings "addressing the types of classified information" at issue in order to pass judgment on its claim Pollard's lawyers don't "need-to-know."

"The court's review will be appropriately deferential to executive expertise, but will not be a rubber stamp for an agency decision," she said.

Assistant U.S. Attorney Rebecca Sol Tinio represents the government.

Lauer is joined in representing Pollard by Curtis, Mallet-Prevost partner Jacques Semmelman, counsel Gabriel Hertzberg and counsel and associate Sylvi Sareva.

Oral argument in the case is set for July 22.

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