Pollard: Gov't About-Face Shows It Has No Case

Avraham Weissman - Hamodia [NY] - July 8 2016

NEW YORK - In court papers filed late Thursday night, attorneys for Jonathan Pollard say that the decision by prosecutors not to file a classified submission to the court in the ongoing legal battle over Pollard's broad and unusually severe parole restrictions - after asking and receiving permission from the court to do so - is an indication that they have no evidence with which to defend the need for such restrictions.

Pollard, who was released on parole in November after serving thirty years of an unprecedented life sentence in prison for passing classified information to Israel, a close U.S. ally, is battling unusually harsh restrictions which include a 7:00 p.m. to 7:00 a.m. curfew; the wearing of an electronic bracelet at all times for GPS tracking of his whereabouts, which needs to be recharged on Shabbos; as well as the unfettered monitoring and inspection of his computers, in addition to those of any employer who chooses to hire him.

Judge Katherine B. Forrest had conditionally granted the government's request to submit a classified filing, which Pollard's legal team would not be permitted to see, described in legalese as "ex-parte."

However, she had ruled that the government was required to disclose to Pollard's attorneys the "gist or substance" of its secret submission, and that "the government must justify the necessity of any ex-parte filing by including an ex-parte declaration or affidavit from an intelligence community official describing why Pollard's counsel does not need to know the information contained in the filing."

In a surprising reversal, the government then instead submitted an unclassified declaration by the director of the Information Management Division within the Office of the Director of National Intelligence.

"After exhaustive litigation over its ability to deny Mr. Pollard's security-cleared counsel a right to look at the documents - and having prevailed on that issue, subject to the Court's disclosure requirements - [the Parole Commission] now asks the Court to uphold the Special Conditions without reference to even a single item of specific intelligence data that Mr. Pollard could possibly remember after 31 years in prison," Pollard's pro bono attorneys, Jacques Semmelman and Eliot Lauer, say in their newest filing.

"Obviously, there is no such data. The Commission's reversal is a clear admission that after reviewing its files, it came up with nothing that it could credibly show the Court, and which would withstand the scrutiny of petitioner's counsel."

The lawyers point out that if the court were presented specific examples of documents, Pollard could then demonstrate "that the information contained therein no longer poses a continuing danger, because, for example: it has already been made public, or has been acknowledged elsewhere to be outdated and useless for all purposes; because the document was never in fact was accessed by Mr. Pollard; or is of such a nature that he could not possibly recall any meaningful details that would be of any value to anyone after 31 years. Moreover, the Commission offers no basis for concern that if in fact Mr. Pollard did retain anything in his head, he would disclose that material after 30 years in prison."

Pollard's attorneys add that "the Commission's reversal also demonstrates that the only reason it imposed the onerous Special Conditions on Mr. Pollard is out of a vindictive and retaliatory motivation to punish Mr. Pollard for voicing his desire to live lawfully in Israel upon his release after 30 years in prison. Retaliation is not, however, a rational or lawful basis for special conditions of parole."

Pollard's legal team also reject the claim of the Commission that the GPS condition is justified on the grounds that it could help protect the public from other crimes - i.e., further unauthorized disclosure of classified materials.

"The Commission has articulated no basis for its fear that Mr. Pollard will do so. For the past eight months, Mr. Pollard has been permitted to travel freely within the Southern District [of New York] without restraint or restriction as to who he can meet, and the Commission does not suggest even in passing that Mr. Pollard has in any way violated parole or communicated inappropriately with anyone. Similarly, [in prison] Mr. Pollard was permitted to spend 20 years in general population, talking freely with anyone he came across at FC Butner, indicating the insincerity of the Commission's belief that Mr. Pollard will commit further crimes while on parole," the lawyers write.

Underscoring the argument that the government is actually confident that Pollard does not pose any security threat and does not have any secrets to share, the attorneys point out that as far back as 1998, the White House was prepared to release Pollard as part of a political exchange.

In 2014, President Obama was reportedly ready to send Pollard to Israel as part of a deal that would advance the peace process, but the deal fell apart after the other parties were unable to agree on the terms.

The attorneys point out that as Dennis Ross, Clinton's Middle East coordinator, stated in an article he wrote on the subject, as early as 1998, there was no real governmental concern that Mr. Pollard would compromise U.S. intelligence, noting that if that were the case, "those responsible on our side should be fired. They had a responsibility to change the way we did business. Clearly, we altered our techniques and means when our security was compromised and we had suffered other security breaches and had to imprison other spies."

Oral arguments in the case are scheduled to be heard on July 22.

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